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Neutral Citation Number: [2010] EWCA Crim 941 Case No. 2009/05577/B3, 2009/05552/B3 & 2009/05341/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 22 April 2010 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE DAVID CLARKE and MR JUSTICE LLOYD JONES __________________ R E G I N A - v - N, D & L __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Miss H McCormack appeared on behalf of the Appellant N Miss D Spiro appeared on behalf of the Appellant D Miss B O'Reilly appeared on behalf of the Appellant L Mr M J Gadsden appeared on behalf of the Crown ____________________ J U D G M E N T THE LORD CHIEF JUSTICE: 1. These appeals arise out of a most unpleasant incident which took place in October 2008 when a virgin girl aged 14 was subjected to a sexual ordeal by the three appellants, D (now aged 17), L (now aged 16) and N (now aged 18). 2. On 13 February 2009, in the Crown Court at Inner London, L pleaded guilty to one count of attempted rape of the girl (count 4) and one count of aiding and abetting rape (count 6). On 5 March, at the same court, D pleaded guilty to three counts of rape of the girl (counts 1, 5 and 8). They were two counts of vaginal rape and one count of oral rape. On 5 August 2009, N was convicted by a jury in a trial presided over by Her Honour Judge Faber. This was a retrial. He was convicted of aiding and abetting rape (count 6) and false imprisonment (count 9). Three further counts were ordered to lie on the file in the usual way. Thus it is, on the basis of either the guilty pleas or the jury verdicts, that this unfortunate girl was raped three times by D (twice vaginally and once orally); that L tried unsuccessfully to rape her, but participated in one of the rapes committed by D; and that N also aided and abetted the same rape by D. 3. In view of some observations we shall be making shortly, it is fair to record that Judge Faber took over the conduct of this trial at the last minute and without any opportunity to study the papers in advance of the hearing. 4. The appeal by N against conviction concerns only his conviction for false imprisonment. The sexual offence does not found the basis of his appeal. L and D do not appeal against conviction. There was an allegation of false imprisonment against each appellant. In reality those allegations and that count were makeweight. Whatever the theoretical position might have been, it is difficult to see how a jury which acquitted any defendant of rape or attempted rape, or of aiding and abetting rape by someone else, would have convicted him of false imprisonment. Although there were counts alleging false imprisonment against D and L, as soon as they pleaded guilty to the sexual offences, the allegation of false imprisonment was quite rightly not pursued. Nevertheless, because N had pleaded not guilty, the allegation of false imprisonment was pursued through to trial and eventual conviction. 5. Following conviction, the appellants were sentenced in the following way: D, for three offences of rape, was ordered to serve an extended sentence of ten years and nine months detention, which comprised a custodial term of seven years and three months and an extended licence period of three years and six months, on each count to run concurrently; L was sentenced to five years five months detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 ; and N was sentenced to six years detention under section 91 of the 2000 Act for his involvement in aiding and abetting rape, and for the offence of false imprisonment he was sentenced to eight months detention to run concurrently. In each case an appropriate order was made under section 240 of the Criminal Justice Act 2003 that the time they had spent in custody on remand was to count towards sentence. Each now appeals against sentence by leave of the single judge. 6. The victim of the offences was 13 years old when, via her computer, she started to communicate with D, who was then aged 16. They had never met before. On 24 October 2008 they met each other for the first time. On that day the arrangement was that D would meet the girl, and he did so, on her way home from school at about 3.15pm. By arrangement he took her to the house where N lived. He sent N a message that the girl was due to arrive. He described her (in slang language) as a very ugly girl. N opened the door to D and the girl. Shortly afterwards L arrived. The girl had expected that there would be just herself and D present. They would, she thought, talk, having met each other for the first time after the period of communication via computer, and so come to know each other. She was then confronted with the three appellants. They appeared in the room. Understandably she asked why they were there. D told her that it was so they could take turns. Although she tried to escape, D prevented her from leaving and raped her twice. She fought. She fought so hard that he called for assistance from the other two appellants. One of the vaginal rapes was committed while the other two held her legs so that she could not escape. At one point it appears that N told D to bring the girl to his room when he had finished with her. All three of them pushed her into another room, where D committed oral rape on her. He insisted that she gave him oral sex. When she refused, he threatened to call for more boys to come to the house. At one point he held his hand to her throat. In the course of oral intercourse he threatened to kill her if she bit him. He raised her hopes that she would be allowed to go home, but then told her that after all she could not do so. 7. There followed further humiliation and frightening torment. D started to play with his lighter in the vicinity of the girl's head -- so close that some of hair was burnt. When that happened he told her that it had been unintentional. Some (not all) of this was filmed. The film was later recovered by the police. Whether or not the burning of the victim's hair was unintentional, D could be seen playing with the lighter and laughing as he did so. The plain intention was that the girl should be frightened and tormented. There was certainly recklessness about her safety. 8. L attempted to rape the victim, but she managed to fight him off by kicking out at him. The filming to which we have referred was carried out by L. 9. At various points through this ordeal, quite apart from the fight that the girl had put up, she kept asking to be allowed to go home. Eventually she was told that she could leave. L took her downstairs but, instead of letting her go, locked her in the living room. Ultimately D let her out and she went home. 10. She arrived home at about 6.15pm. She went to her room, where her mother found her leaning against the wall with her head in her hands, her hair dishevelled, sobbing. When her mother hugged her, she could smell smoke, sweat and semen on her. She asked her daughter what had happened. The police were contacted. 11. Police officers visited the house where the ordeal had taken place. They found the three appellants wearing the clothes as the victim had described them to the police. There was other material which eventually produced clear evidence of the involvement of the three appellants in this incident. 12. None of the matters relating to the sexual crimes is relevant to the single area of appeal against conviction, but the factual background of what happened is relevant to the appeals against sentence. Accordingly, we turn to the appeal against N's conviction for false imprisonment. 13. The single point for consideration in the appeal arises from the judge's direction to the jury in her summing-up, and her subsequent directions when the jury asked a question. To understand the question it is important to recognise that it never was, and never had been, the Crown's case that the appellant N had played a purely passive role in this offence. As we have indicated, in relation to the sexual crimes, he had actively involved himself. He had been party to holding the girl to facilitate D's rape of her. In the end, as the convictions show, the jury was sure that he had aided and abetted one of those rapes in precisely the way alleged. 14. In her summing-up the judge directed the jury on false imprisonment in this way: "Before you could convict [N] of this offence you would have to be sure that he himself, or by joint responsibility with others, (1) intentionally or recklessly assaulted [the girl]; and (2) unlawfully detained her in the house. Intentionally means knowingly doing an act with the intention that consequences will follow. Recklessly is doing an act with foresight of possible consequences and taking the risk of those consequences." That direction in relation to recklessness was directed to assault, that is to say "inflicting unlawful violence on her or putting her in fear that immediate unlawful violence would be inflicted on her." The judge continued: "Imprisonment means preventing her from leaving the house when she wanted to leave." The judge added: " .... [this] does not include the alleged holding down during the rapes...." Indeed, the judge repeated the direction: ".... this does not include the alleged holding down during the rapes ...." 15. The jury were puzzled. They sent a question which read: "With regards to false imprisonment, does taking some part in the events, other than the alleged participation in the rapes, include: (i) not doing anything to let her leave; (ii) remaining silent; (iii) allowing the offence to occur and remaining passive and having knowledge of what was happening?" After a discussion with counsel, which covers 17 pages of transcript, the judge gave the jury the following direction. She repeated the question so as to put it in context and then said: "Allowing the offence to occur and having knowledge of what was happening and remaining passive would be sufficient if you were sure of all those three elements [that the jury had identified], only if you were also sure that he intended to participate in the false imprisonment or was reckless as to his participation in it." 16. Some considerable time could be spent in a philosophical discussion about what precisely in legal terms the question posed by the jury was concerned with, and in particular whether in the third point made by the jury, "allowing the offence to occur", they had in mind either one of the rapes, or a rape by one of the others, or N's participation, because it was then under consideration, in the rape by D, or by false imprisonment. It is contended that the direction constitutes a misdirection. The argument in summary is that presence alone is not sufficient to found a conviction for false imprisonment in circumstances like these, although the presence of a particular individual charged with false imprisonment may provide evidence of encouragement. The real area of misdirection is said to arise from the direction that failure to intervene may be sufficient, not only if there is an intention in the mind of the person present during the false imprisonment to encourage others, but also, if present, he is reckless whether or not he is encouraging it. 17. It is sufficient for the argument to acknowledge that there may be some force in it. However, we do not have to decide the point and we shall not do so. What, in the end, is the point of all this? None that we can see. Given that the jury was satisfied so that it was sure that the appellant aided and abetted the rape of the girl by D while he held her, so that the rape could take place, we ask ourselves how, notwithstanding any possible misdirection, his conviction for being involved in the false imprisonment of the girl can be unsafe. The short and inevitable answer to that question is that this conviction is not unsafe. The case may have proceeded on a surprising footing, but on the question of safety, and honouring the findings of the jury, we can see no basis for interfering with the conviction. In these circumstances the appeal by N against conviction will be dismissed. 18. We repeat, the count of false imprisonment was makeweight. It was quite unnecessary. There may have been a theoretical basis for including the count in the indictment, but the reality was that any one of the three appellants who was involved in raping the girl, or in the rape by others of the girl, or was party, directly or indirectly, to the rape by others of the girl, was party to her false imprisonment. Anyone who did not become involved, anyone who thought she was consenting, anyone who was not guilty of involvement in any sexual crime in this case would, we believe, inevitably have been acquitted of false imprisonment. The question for the jury was: what had happened to the girl when she underwent her dreadful ordeal and who was involved in it? If the count for false imprisonment had not been included in the indictment, none of the argument by counsel at trial, none of the careful preparation by the judge of the appropriate directions to give in the context of a trial which proceeded on two counts against N, nor for that matter the time the jury spent in considering it would have been necessary. Much unnecessary work was required because of the inclusion of that count, and for what it is worth, none of the resources of this court would have been deployed in relation to something which had little point. 19. Reminding ourselves that Her Honour Judge Faber's involvement with this trial occurred at the very last minute before she had a chance to study the very voluminous papers, we cite this case as an example of the care with which indictments should be drafted. No less important, when it becomes clear that a case is to proceed as a trial, counsel for the prosecution and the judge should reflect on which count or counts should be presented to the jury. This requires close attention to the realities of the case and none at all to the theoretical legal possibilities which may arise. It also requires careful attention to the criminality which has resulted in the case coming to trial, as well as the evidence to support the allegation. Finally, it requires the avoidance of duplication and the risk of unnecessary complications both for the jury and for the judge, and the ultimate wasting of scarce and valuable resources. Unnecessary counts should be stripped out of the indictment. If that does not take place at the plea and case management hearing, or any of the earlier interlocutory proceedings, it must take place when the trial is due to begin and before the jury is sworn. 20. We turn to the appeals against sentence. In her sentencing remarks the judge carefully set out her analysis of the individual features of the case as they applied to each of the appellants. First of all, and unsurprisingly, having narrated the facts, she addressed the impact on the girl. She said: "[The girl] describes this as a terrifying ordeal, leaving her insecure, constantly afraid, and unable to sleep. She has flashbacks of the pillow over her face, and of her hair being burned. .... It has detrimentally affected her school work, causing her grades to decline. Everything to her seems to be a struggle. She cries uncontrollably, and constantly gets upset." The judge suggested that it would be difficult to imagine how the girl or her family could ever recover from such an ordeal and its after effects. She bore in mind the impact of this offence on the girl's family, and no doubt in particular on her mother who found her in that distressed, desolate condition. 21. The judge set out the three features of these crimes which she considered made them particularly serious: there were three offenders involved in a series of rapes; all three participated in their different ways in the "sustained attack"; and the victim was but 14 years old and a virgin. 22. Having reminded herself of the broad questions, the judge then addressed the individual features of the appellants. She noted their ages. D had a previous conviction for robbery, for which he was sentenced to a twelve month referral order, so that the offences against the girl were committed during the duration of that order. L was only 15 when the offences were committed and 16 at the date of sentence. He was of previous good character. N was 16 at the time of the offences and 17 when he was sentenced. He had a conviction for an irrelevant offence. 23. The judge then addressed some further features of the case, again with meticulous care. She was not satisfied (because there was insufficient evidence) that the sexual attack was planned before the arrival at the premises of D and the girl. She also noted that there were no bodily injuries found on the girl which the medical practitioner was prepared to attribute to the attacks. On the basis of the pleas accepted by the Crown, L did not commit any full act of rape. He asked for oral sex, but accepted the girl's refusal. He stopped filming her when she made it plain that she did not want it to continue. The judge recognised, in loyalty to the verdicts of the jury, that N had not tried to commit rape. At one point she noted that N had tried to help the girl by responding to her request to hand back her knickers that had been discarded by D on the top of a cupboard. There was also evidence that N had protested at D's conduct with the cigarette lighter. The false imprisonment added nothing to the case. The judge noted the date and occasion of the guilty pleas of L and D. She recognised that in L's case, his pleas were tendered at the earliest possible opportunity. D offered his pleas a little later. She was prepared to give D a significant discount for his guilty plea, but not a full discount. 24. The judge summarised the contents of the pre-sentence report in each case. Reference is made to D's special educational needs. She referred to the "unfortunate background and the sad position" of L's sister. L had demonstrated some maturity while he was in custody. She also took into account the fact that N had effectively stood trial twice and that he had a most unfortunate background. It is unnecessary to set out the details for the purposes of this judgment. 25. The judge then gave a direction to herself which has been the subject of criticism. She said: ".... for the avoidance of doubt I make it clear that I cannot accept the submissions of counsel that I am obliged on the facts of this case to give substantial discounts for youth." A little later, when she addressed D, she said: ".... in relation to you, no discount for youth is appropriate at all, based on the seriousness of your criminal conduct in this case." Having carefully set out in reasoned terms the details of why she had reached the conclusions that she did and decided to impose the sentences that she proposed to do, she passed the sentences we have indicated. 26. These were very long sentences, but they were very long sentences for very serious offences. The most culpable offender was D. He was aged 16 when they were committed and 17 when he was sentenced. He was not an immature youth. He knew what he was doing and how the girl would suffer. N was much the same age. His involvement was less serious than that of D, although these offences were committed at his home. Of the three, L was the youngest; he was aged 15 at the time of the offence. In the context we are considering, he was less seriously involved in the sexual crime than D. L and D pleaded guilty. L pleaded guilty first and as soon as possible. D pleaded guilty a little later. N did not. 27. It is an old and well-established principle of sentencing that the youth of an offender should normally lead to a lower sentence. It is to be found in the first edition on Thomas on Sentencing, which goes back to the 1960s in these words: "Youth is one of the most effective mitigating factors." That is a stark, simple, unequivocal statement of principle. The principle has been repeated time and time again. In the context of the culpability of young offenders involved in sexual crime, the Sentencing Guidelines Council's Definitive Guideline on the Sexual Offences Act 2003 is equally clear. Paragraph 1.17 states: "The youth and immaturity of an offender must always be potential mitigating factors for the courts to take into account when passing sentence. However, where the facts of a case are particularly serious, the youth of the offender will not necessarily mitigate the appropriate sentence." Since the sentencing remarks of Judge Faber, we have been provided with the Definitive Guideline on the Overarching Principles relating to Sentences for Youths. Paragraph 1.2 points out that when sentencing an offender aged under 18, a court must have regard to the principal aim of the youth justice system, to prevent offending by children and young persons and the welfare of the offender. That is a matter of statute; it is not judge-made law. We are bound by it, as all judges are. Another paragraph states that the youth of the offender is widely recognised as requiring a different approach from that which would be adopted in relation to an adult. Even within the category of youth, the response to an offence is likely to be very different, depending on whether the offender is at the lower end of the age bracket, in the middle, or towards the top end. In many cases the maturity of the offender will be at least as important as the chronological age. 28. For present purposes it comes to this. There will from time to time be individual offenders whose maturity levels are well in advance of those to be expected of most youths of a similar chronological age. All these decisions are specific and individual. They must reflect all the material available to the sentencing judge, including the circumstances of the offence and the behaviour of the offender whose case is under consideration in the context of that offence. If justified, the maturity of a youth is a factor to which weight should properly be given because on this basis such mitigation arising from the youth of the offender is or would be proportionately reduced or diminished, sometimes (on rare occasions) to virtual extinction. When they are made, express findings by the sentencing judge are required. Nevertheless, the sentencing principles as they affect young offenders are clear, long-established and effectively unchanged, although most recently summarised in the latest definitive guideline. It is, therefore, inappropriate for a blanket ruling relating to a group of young offenders to ignore the fact of youth. 29. We turn to the facts of this case. D's behaviour towards the victim on the night in question could not, in our judgment, properly be described as the behaviour of a youth. He led this ugly group action. His behaviour with the lighter after the girl had been raped, and raped repeatedly, disclosed an element of gratuitous cruelty. If D had been older, the sentence could, with justification, have been longer than it was. In our judgment this was a case where the judge was entitled to say that she would not discount for his youth. Even if that were wrong, as the sentence could have been longer if D had been older, we can see no basis for concluding that the sentence imposed on him was manifestly excessive or wrong in principle. 30. L is in a different position. He was 15 years old and the youngest of the three. Like the others, he had had a terrible start in life. Unlike the others, he was of completely good character. He was the first to plead guilty and he did so at the first available opportunity. We think some element of reduction in sentence would have been appropriate in the case of L. Bearing in mind all the features of the case, we have concluded that the sentence of five years and five months detention should be reduced to a sentence of four years detention. That will apply to both counts concurrently. 31. N is older than L. His flat was the scene where these offences were committed. He showed some concern at D's behaviour with the lighter. On the other hand, there was no credit to be given to him because of a plea of guilty. The case went forward through one unsuccessful trial and eventually to a successful conclusion at the end of a second trial. We have considered how to balance the sentence between him and L. As it is, the sentence of six years detention imposed on him would have been reduced to four years if he had pleaded guilty, as L pleaded guilty. But as he did not, we see no basis for interfering with the assessment made by Judge Faber. 32. In the result, therefore, the appeals against sentence by D and N are dismissed. The appeal against sentence by L is allowed to the extent that the sentence of five years and five months detention on both counts will be reduced to a sentence of four years detention. All of the sentences are sentences of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 .

```yaml citation: '[2010] EWCA Crim 941' date: '2010-04-22' judges: - MR JUSTICE DAVID CLARKE - MR JUSTICE LLOYD 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} ======

Neutral Citation Number: [2008] EWCA Crim 530 Case No: 200702304 D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM His Honour Judge Wadsworth QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2008 Before : LORD JUSTICE GAGE MR JUSTICE SIMON and HIS HONOUR JUDGE PAGET QC - - - - - - - - - - - - - - - - - - - - - Between : DAVID CUNNINGHAM KING Appellant - and - THE SERIOUS FRAUD OFFICE Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr David Perry QC and Mr Louis Mably (instructed by Kingsley Napley, Solicitors) for the Appellant Mr Andrew Mitchell QC and Miss Fiona Jackson (instructed by the Serious Fraud Office ) for the Respondent Hearing dates : 28 and 29 February 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Gage : 1. The applicant, David Cunningham King, applies for leave to appeal against orders made by His Honour Judge Wadsworth QC at Southwark Crown Court on 23 April 2007. On that date the Judge dismissed an application by the applicant to discharge a Restraint Order (the RO) and a Disclosure Order (the DO) made by him on an application without notice by the respondent, the Serious Fraud Office, on 31 May 2006. We give leave. Background 2. The appellant is aged 51 and is a British national by birth. For the last 30 years he has been resident in South Africa working as a businessman. 3. For a number of years the authorities in South Africa have been investigating the appellant’s financial affairs and, in particular, his tax affairs. The investigation resulted in the start of civil and criminal proceedings against the appellant in South Africa. The civil proceedings include proceedings in the South African Tax Court started by the South African Revenue Services (SARS). These proceedings are still outstanding. 4. The criminal proceedings against the appellant have been instituted by the National Prosecuting Authority of the Republic of South Africa (the NPA). The appellant was arrested by the NPA on 13 June 2002 and released on bail. He was subsequently charged with a number of offences in proceedings started in the High Court. On 29 April 2005 an indictment was served upon the appellant and a trial fixed for 25 July 2005. On a later date the trial was postponed until 31 July 2006. An amended indictment was served on 17 March 2006. In the event, the trial did not start on 31 July but was again postponed. The trial is currently due to start on 18 April 2008 but we are told on that date it will be further adjourned to 31 July 2008. 5. The amended indictment alleges tax fraud and the contravention of exchange control regulations. It is alleged against the appellant that between 1990 and 2002 he devised and carried out a fraudulent scheme or schemes to evade the payment of income tax, thereby defrauding SARS. It is alleged against the appellant that in the execution of the fraudulent schemes he transferred, or arranged to be transferred, his shares in various South African registered companies into the name of Agnes King, his mother, who lives in Scotland, for no consideration or nominal consideration. The prosecution allege that subsequently the fraudulent scheme involved: (1) the applicant establishing offshore trust structures, involving companies incorporated in the British Virgin Islands and Guernsey (the alter ego entities), with the appellant controlling these trust structures and using them as vehicles for fraud; (2) in contravention of exchange control regulations, arranging for shareholdings in South African companies to be exported and become assets of the companies within the trust structures; (3) in order to evade liabilities for income tax making false tax returns in South Africa, deliberately failing to declare material facts about his true assets, including the assets held by his alter ego entities; further, giving false information to tax officers and failing to submit a tax return for the tax year 2000. 6. The prosecution allege, in general terms, that in the three years up to 2001 the appellant made profits of more than R1 billion and spent hundreds of millions of Rand in South Africa, whereas his income tax returns for those three years were those of a man earning a modest income who had accumulated assets worth only R550,000 in the 23 year period that he had been in South Africa. It is also alleged that members of the public had sustained losses as a result of his activities. The Amended Indictment 7. Counts 1 to 20: The appellant faces 20 counts of common law fraud in respect of 20 tax returns and amended tax returns submitted by him during the period 1990 to 2001. In the alternative he is charged with contravening various sections of the Income Tax Act. 8. Counts 21-40: The appellant faces 20 counts of common law fraud (and in the alternative contraventions of the Income Tax Act) for the same period and for the same tax returns and amended tax returns; but these counts are only applicable in the event of the court finding that the alter ego entities were not the alter egos of the appellant. 9. Counts 41-47: These are counts of fraud, and in the alternative of contravening the Income Tax Act, and are applicable in the event that the court finds that the alter ego entities were not the appellant’s alter ego. The charges are based on allegations that the appellant as the representative of Ben Nevis Ltd, a company incorporated in the British Virgin Islands, had the responsibility to render a tax return for Ben Nevis or Metlika Trading Ltd, another company incorporated in the British Virgin Islands. It is alleged that Ben Nevis or Metlika derived income from a source deemed to be within the Republic of South Africa and had its effective place of management in the Republic as it was effectively managed by the appellant. It is alleged that the appellant wrongfully and unlawfully failed to apply for the prescribed tax return form and render the return; and, by omitting to comply with his obligations in this regard, made a representation by way of omission. 10. Counts 48-50: These are counts of fraud and in the alternative of contravening the Income Tax Act and relate to the appellant’s failure to render tax returns in respect of the tax years ending 28 February 2002, 28 February 2003 and 28 February 2004. It is alleged that the appellant’s failure in relation to his obligations in this regard constitutes a misrepresentation by way of omission. 11. Counts 51-58: These counts allege contravention of the Income Tax Act and are based on SARS’s requests for information and the appellant’s alleged false answers to those requests. 12. Counts 59 and 60: These allege a failure by the appellant to provide information requested by SARS. 13. Count 61: This is a count of fraud and in the alternative an allegation of contravening the Income Tax Act and is based on four applications made with the knowledge and consent of the appellant to SARS to de-register him as a tax-payer with effect from 1 March 2001 on the basis that he was no longer in receipt of taxable income. 14. Count 62: This count alleges a failure by the appellant to furnish, file or submit his income tax return for the year 2000. 15. Counts 63-85: These are 23 counts alleging the contravention of the Income Tax Act in respect of the alleged failure by the appellant in January 2002 to reply to or answer truthfully and fully questions put to him. 16. Counts 86-319: These are counts alleging contravention of various Exchange Control Regulations. 17. Count 320: This is a count of money laundering in contravention of s.28 of the South African Proceeds of Crime Act 76 of 1996 (SAPOCA). 18. Count 321: A further count of money laundering in contravention of s.4 of SAPOCA. 19. Count 322: This count alleges against the appellant a count of racketeering in the terms of SAPOCA. The period covered by the racketeering count is March 1999 to December 2003. Many of the charges on the indictment fall into the category alleged in this count as allegations of fraud. The History of these Proceedings 20. On 31 May 2006 HHJ Wadsworth QC at Southwark Crown Court made the RO against the appellant and a number of corporate entities alleged to be the appellant’s alter ego entities. The order was made on the application of the respondent under article 8(1) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (S.I.2005/3181) (the Statutory Instrument). On the same day the judge made the DO under article 8(4) of the Statutory Instrument. The orders relate to all property held by the appellant (and the alter ego entities) including property held both inside and outside England and Wales. The orders were made without notice of the application to the appellant. The application made by the respondent was pursuant to an external request dated 9 May 2006 from the NPA. 21. On 20 September 2006 the order was varied, again on an ex parte application by the respondent. 22. On 13 December 2006 the appellant served a notice of application to discharge the orders. The application was heard on 26-28 March 2007 and 4 April 2007 and, as we have already stated, on 23 April 2007, dismissed by the judge. The judge also made an order for costs in favour of the respondent and ordered disclosure to be made by 24 May 2007. The DO has been suspended pending the application for leave to this court. The Legislative Framework 23. The power to make the Statutory Instrument is provided by s.444 of the Proceeds of Crime Act 2002 (POCA). This section gives power for secondary legislation to be made providing for prohibition on dealing with property which is the subject of an external request. Section 447 defines an external request as “a request by an overseas authority to prohibit dealing with relevant property which is identified in the request”: see s.447(1). An external request is contrasted with an external order which is defined as an order made by an overseas court (s.447(2)). Property is defined in s.447(4) as “ … all property wherever situated …” The expression “relevant property” which appears in the Statutory Instrument is defined in s.447(7) in the following way: “Property is relevant property if there are reasonable grounds to believe that it may be needed to satisfy an external order which has been or which may be made.” 24. It is relevant to note that s.447 appears in Part 11 of POCA under the heading “Co-operation”. Part 11 also makes provision for separate enforcement of external requests in different parts of the United Kingdom. 25. Part 2 of the Statutory Instrument is headed: GIVING EFFECT IN ENGLAND AND WALES TO EXTERNAL REQUESTS IN CONNECTION WITH CRIMINAL INVESTIGATIONS OR PROCEEDINGS AND TO EXTERNAL ORDERS ARISING FROM SUCH PROCEEDINGS 26. For the purposes of this appeal the relevant articles are articles 6, 7 and 8. We set out those parts of the articles which are material for the purposes of this appeal. They read: “ 6. – Action on receipt of external request in connection with criminal investigations or proceedings (1) Except where paragraph (2) applies, the Secretary of State may refer an external request in connection with criminal investigations or proceedings in the country from which the request was made and concerning relevant property in England or Wales to – (a) … (b) … (c) … (2) This paragraph applies where it appears to the Secretary of State that the request – (a) is made in connection with criminal investigations or proceedings which relate to an offence involving serious or complex fraud, and (b) concerns relevant property in England or Wales (3) Where paragraph (2) applies, the Secretary of State may refer the request to the Director of the Serious Fraud Office to process it. (4) … (5) … (6) … (7) Where a request concerns relevant property which is in Scotland or Northern Ireland as well as England or Wales, so much of the request as concerns such property shall be dealt with under Part 3 or 4, respectively. 7. - Conditions for Crown Court to give effect to external request (1) The Crown Court may exercise the powers conferred by article 8 if either of the following conditions is satisfied. (2) … (3) The second condition is that – (a) relevant property in England and Wales is identified in the external request (b) proceedings for an offence have been started in the country from which the external request was made and not concluded, and (c) there is reasonable cause to believe that the defendant named in the request has benefited from his criminal conduct. (4) In determining whether the conditions are satisfied and whether the request is an external request within the meaning of the Act , the Court must have regard to the definitions in subsections (1), (4) to (8) and (11) of section 447 of the Act (5) … 8. – Restraint Orders (1) If either condition set out in article 7 is satisfied, the Crown Court may make an order (“a restraint order”) prohibiting any specified person from dealing with relevant property which is identified in the external request and specified in the order. (2) … (3) … (4) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective. ” Paragraphs (5) and (6) are not material. The Judge’s Reasons 27. We set out the judge’s reasons in summary because the grounds of appeal raise much the same issues as were before the judge. We shall deal more fully with them below. For present purposes, the following short summary will suffice. 28. The judge found that the statutory framework provided the court with power to restrain assets outside the jurisdiction. He reached his conclusion by construing article 7(3) as providing a gateway to the making of a restraint order. Relying on article 7(3)(a), he ruled that provided there was relevant property in England and Wales the court had power to restrain assets outside the jurisdiction as well as within the jurisdiction. In support of this conclusion he relied on the definition of property in s.447(4) which, it will be recalled, contained the expression “… property wherever situated …”. He concluded that once that condition was dissatisfied the court has power to make an order within the terms of article 8. 29. Further, he went on to conclude that article 8 provided the court with power to restrain property not specifically identified in the letter of request. Having reached this conclusion he held that the court had power to make a disclosure order. Accordingly, he granted the respondent’s application for the DO. 30. Finally, the judge dealt with issues of disclosure. It had been argued before him, as it is before us, that the respondent was in breach of its duty to make to the court full and frank disclosure of all matters which might affect the exercise of the court’s discretion to grant the order. Having carefully set out various matters which were relied on by the appellant he expressed his conclusion in the following terms: “Clearly there is a very important principle at stake here. Mr Perry says with considerable force that where there is a failure to disclose matters to this court or an abusive use of this court the remedy must lie here in the United Kingdom and cannot simply be referred back by me to another court in another country. Of course, that must frequently be so. Where there is a clear abuse of the proceedings of the court the court must act both to protect the parties suffering from the abuse and to protect the court’s own integrity. For instance, if the court finds that there has been perjury, forgery of documents relied upon or the like then the court must act. But in the present case the essential allegations made are of abuse of the process of this court in the light of the conduct of the prosecuting authority in its own country. The matter can only come before the court after the Secretary of State has exercised his discretion whether or not to refer the external request to the Director of the Serious Fraud Office under Article 6 of the Order, and the initial decision whether this court should be asked to assist any given external territory is essentially one for the Secretary of State. Where the court is asked to assist the prosecuting authority of another country it should be slow to consider whether the prosecutor has acted in accordance with his powers and duties within the country in making the request. These questions are essentially for the Secretary of State or for the court of the requesting country.” 31. In the light of these conclusions the judge declined to discharge the RO. Grounds of Appeal 32. There are three grounds of appeal. They are: (1) The judge was wrong to conclude that article 8(1) of the Statutory Instrument gave the court a power to make a restraint order in respect of property located outside England and Wales. (2) The judge was wrong to conclude that article 8(4) of the Statutory Instrument gave power to the court to make an order for disclosure in respect of property located outside England and Wales. (3) In exercising his discretion whether or not to discharge the RO and the DO the judge acted erroneously and ought to have exercised his discretion in favour of discharging the orders. We shall deal with the grounds of appeal in the order set out above. However, it is clear that grounds (1) and (2) stand or fall together. Ground 1: 33. Mr David Perry QC, for the appellant, founds his submission on the language of articles 7 and 8 in the Statutory Instrument. He submits that in order to satisfy either the first or second condition required by article 7 before the court can give effect to an external request, the court must be satisfied that relevant property in England and Wales is identified in the external request. 34. Article 8 gives the court power to make the restraint order from dealing with relevant property which “is identified in the external request”. Mr Perry submits that the power to prohibit dealing with relevant property is provided by the words of article 8(1) and is restricted to the property identified in the /external request, which in turn throws the court back to the requirement of the second condition in article 7. What has to be identified is relevant property in England and Wales. 35. Mr Perry submits that this interpretation of the two articles is consistent with the explanatory material put out by the Home Office at the time of and after POCA had passed through Parliament sought to explain the scope of the Statutory Instrument and the statute itself. He further contrasts the statutory scheme for enforcement of the external requests with the statutory scheme for the enforcement of domestic restraint orders. The latter enables the relevant authorities to seek assistance from an overseas territory in restraining property held in that territory (see s.74 of POCA). He points out that unlike domestic restraint orders which can be enforced through the mechanism provided by s.74, there is no such structure or regime for enforcing a restraint order made under article 8. 36. Mr Andrew Mitchell QC, for the Respondent, relies on the language of POCA and also the language of the Statutory Instrument. He points to provisions in POCA which support the proposition that Parliament intended the court to have wide powers in relation to both internal restraint orders and restraint orders made as a result of external requests. In particular, Mr Mitchell relies on the definition of relevant property in s.447(4) which defines such property as “property wherever situated”. He submits that once the gateway criteria provided by article 7(3) are satisfied the court may restrain property wherever it is. Once there is, in his words, “a sufficient nexus” with the United Kingdom, the court’s jurisdiction to make a world-wide order is available and can be exercised subject to the court’s overriding discretion to refuse to make such an order. 37. Mr Mitchell points out that such an interpretation is consistent with this country’s commitment to co-operate in the suppression and control of international crime. It is also consistent with previous legislation (see for example the Criminal Justice Act 1988 ) and with the regime in civil proceedings. 38. Further, Mr Mitchell reminds the court that the Government’s view of the effect of legislation put forward in Explanatory Notes and other material issued by a Government department cannot be used so as to determine the intention of Parliament or in respect of the proper construction of the Statute and delegated legislation (see per Lord Steyn in ( R ( Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 ). 39. The above is a short summary of the submissions attractively deployed by both counsel in the course of oral argument. We were treated to further wide-ranging submissions which involved comparisons of the language used in POCA with that used in the Statutory Instrument. Mr Mitchell also referred us, as we have remarked, to the statutory provisions of earlier statutes. However, in the end, in our judgment, the resolution of the issue on this ground of appeal comes down to a narrow issue on the proper construction of the Statutory Instrument in the context of POCA. 40. We accept Mr Mitchell’s submissions that the Explanatory material from the Home Office on the effect of the statutory provisions with which we are concerned cannot be used as demonstrating the intention of Parliament in such a way as to overrule the clear statutory meaning. It is permissible to use Hansard and other background material to identify the mischief at which the Statute was aimed (see Pepper v Hart [1993] AC 593 ). Also, a “categorical” assurance by a Minister to Parliament in the course of debates as to the meaning of statutory language may be relied on by an individual so as to preclude the Government contending to the contrary vis-à-vis that individual (see the narrow ratio of Pepper v Hart explained by Lord Steyn in McDonnell v Christian Brothers Trustees [2004] 1 AC 1101 at para 29). Neither of these two principles applies in this case. 41. We also are not impressed by Mr Perry’s submission that the NPA in its letter of request appears to have accepted the court has power to make the restraint order only in respect of property within the United Kingdom. We have found neither of these two matters helpful in reaching a conclusion on the proper construction of the Statutory Instrument. 42. We also accept Mr Mitchell’s submission that s.447(4) of POCA plainly defines property as all property, whether within England and Wales or overseas. Where we part company with Mr Mitchell’s submission is that this definition of property applies to article 8 so as to provide jurisdiction for the court to make an order under article 8(1) prohibiting a person from dealing with property outside the jurisdiction of the court. 43. We prefer Mr Perry’s submissions on the meaning and effect of article 7(3) and article 8(1) of the Statutory Instrument. In our judgment article 8(1) does have the restrictive effect contended for by Mr Perry. It states that the power of the Crown Court to make a restraint order is in respect of relevant property identified in the external request. It seems to us that this can only mean relevant property in England and Wales as is identified in the external request (see article 7(3)(a)). It is only property in England and Wales that is identified in the external request. Mr Perry concedes that this does not prevent the requesting state from adding to the property identified in the external request which was not initially specified in the request. However, he submits, and we accept, that the added property can only be property within England and Wales. 44. We find support for this construction of article 8 by reference to article 6(7). Had it been intended that article 8 gave power to the court to make a world-wide restraint order there would in our judgment have been no need for article 6(7). Any world-wide restraint order made by a Crown Court in England and Wales would have effect in Scotland and Northern Ireland without the need for the external request to be dealt with by the courts in Scotland and Northern Ireland. Furthermore, the effect of the order in this case may, in certain circumstances, come into conflict with another order made, for instance, by the court in Guernsey after a similar external request was addressed to the authorities in Guernsey. 45. In our view this construction of articles 7 and 8 is not undermined by the definition of property in s.447(4) of POCA. Mr Mitchell points out that article 7(4) requires the court when determining whether the first or second condition is satisfied, to have regard to the definitions in, inter alia, sub-section 4 of s.447 . We do not, however, accept his submission that this has the effect of importing into articles 6, 7 and 8 a power of the court to make a world-wide order. If it was intended that the crown court should have such a power in our opinion it would require a clear expression of that power in either the Statutory Instrument or POCA. The reference in article 7(4) to the need for the crown court to have regard for the definition of property given in this subsection can, we think, as Mr Perry submitted, just as easily be attributed to the requirement in article 7(3)(c) that the defendant has benefited from his criminal conduct. 46. As we have said, in our judgment, the effect of articles 6, 7 and 8 read as a whole is to provide a scheme to make a restraint order in response to an external request only in respect of property in England and Wales. Again, we point out that there would be no need for the separate jurisdictions of the courts in Scotland and Northern Ireland if it was intended to provide power to the Crown Court in England and Wales to make a world-wide order. 47. Finally, we should add that this limitation on restraint orders made in respect of external requests seems to us understandable. As Mr Perry points out, there is a considerable difference between a domestic restraint order made pursuant to ss.40 and 41 of POCA. In the case of the latter, the investigation or proceedings are instituted in England and Wales. The purpose of a restraint order in such cases is to protect property which following a trial in this country may become the subject of confiscation proceedings. 48. In the case of the former, the court can be asked to protect property in the United Kingdom, but not to provide a forum for world-wide protection, which, in this case, could just as well be provided by an order of the requesting state had the authorities chosen to do so. Further, article 18 provides for the action to be taken by the court when it receives an external order. That order is clearly confined to property in England and Wales. In our judgment this is another indication that this part of the Statutory Instrument is concerned only with property in England and Wales. Ground 3 49. This ground is in two parts. First, it is submitted by Mr Perry that the judge’s approach to the question of discretion was wrong. Secondly, it is submitted that the respondent when making its initial ex parte applications was in breach of its duty to disclose material which might have affected the court’s decision to make a restraint order. We deal first with the issue of the judge’s approach. We have already set out the final passage of the judge’s ruling. In it the judge said that failures in respect of disclosure on this case were matters for the Secretary of State to consider or for the South African courts to deal with. Mr Perry submits that this demonstrates a wrong approach. He relies on the fact that the South African authorities chose to apply for a restraint order in England and Wales rather than in South Africa. For that reason, if no other, the Crown Court should have itself considered the failures of disclosure. 50. There are three particular matters which it is alleged the respondent and the NPA failed to disclose to the judge on the initial application for the RO. These are: (1) What we shall refer to as the procedural error based on a decision of the South African Court in Reuters Group plc v Viljoen and others NMO 2001 (12) BCLR 1265. (2) The contradictory stance taken by SARS and the NPA in respect of Ben Nevis. In criminal proceedings Ben Nevis is alleged to have been an alter ego of the Appellant. In civil proceedings SARS assessed Ben Nevis and the Appellant separately for tax purposes. (3) In respect of benefit which is alleged by NPA there was a failure to disclose the fact that the total benefit including a 200% penalty charge which as a matter of law was not benefit. 51. The judge dealt with these three matters after directing himself on the approach set out in Jennings v CPS [2004] 4 AER 391. The judge said: “Applying the test set out in Jennings I am quite satisfied that the failures relied upon, even on the assumption that they are failures and I make no finding on that point, are not such as would enable me in the public interest to discharge this order.” Mr Perry concedes that the judge correctly directed himself. It is clear from this passage in the ruling that the judge dealt with these three factors as matters to be considered by him when exercising his discretion. In our judgment the passage at the end of his ruling, which we have already cited (see para 30 above), can only refer to other factors which the judge considered after dealing with these three. In the circumstances we can see no error of approach by the judge to the exercise of his discretion in respect of these three factors. 52. The final two factors were first an allegation that the behaviour of NPA has throughout been aggressive, unreasonable and unjust. Secondly, Mr Perry relies on matters surrounding the respondent’s ex parte application to vary the RO on 28 September 2006. 53. In respect of the former, the judge referred to a judgment of the South African court in which the judge stated that he was “ … seriously averse to apportioning blame to any of the parties for the quagmire in which we find ourselves”. Judge Wadsworth, in our judgment, correctly ruled that it would be inappropriate for him to delve into a matter which the trial judge felt would not help. 54. The second factor focuses on the application by the Respondent to seek and obtain a variation of the RO. It was dealt with by His Honour Judge Goymer. That was also an application dealt with by the judge on papers. There was no hearing. 55. A number of statements have been filed by both sides on this issue. In addition a large bundle of correspondence has been exhibited. The complaint made on behalf of the appellant is that the respondent and the NPA ought to have disclosed the whole correspondence to the judge when making its application for a variation of the initial order. Further, it is submitted that, at the very least, by not notifying the appellant of the application the Respondent was guilty of a very serious breach of its duty to disclose all material matters to the judge when making such an application. 56. Mr Perry submitted that SARS and the NPA manipulated the proceedings in order to remove from the RO certain property, the Scheerpoort property, which belonged to the appellant. It is submitted that the correspondence shows quite clearly that the appellant was unwilling for this property to be released for the purpose of a subsequent sale. The alleged motive for this application is that SARS intended to use the proceeds from the sale of the property to satisfy tax debts due from the appellant. Further, it is alleged that SARS sought to manipulate proceedings in South Africa so as to cause the Appellant to undergo cross-examination in the civil tax proceedings. 57. On behalf of the respondent, Mr Mitchell candidly accepts that the respondent ought to have notified the appellant that it was going to make the application to vary the RO and informed him of precisely what was being sought (see paragraph 59.4(2) of the Criminal Procedure Rules). However, Mr Mitchell submits that the respondent acted in good faith, albeit careless of the appropriate procedures. 58. The judge in his ruling stated that he had no doubt that the correspondence should have been made known to the respondent by the NPA and thus to the court. He said that it was difficult to see what justification there could be for the failure of the NPA and SARS to disclose this material. However, he took the view that there had been no prejudice to the appellant and accordingly concluded “narrowly and with some hesitation” that it would not be right to discharge the order on this ground. Accordingly, it seems clear to us, that the judge did exercise his discretion without reference to the need for the matter to be considered by the Secretary of State or the South African courts. In our judgment that was a conclusion which, in the exercise of his discretion, the judge was entitled to reach. 59. Finally, on the issue of disclosure, we turn to a submission made by Mr Perry that the Crown Court ought not to have allowed itself to be used as a “primary policeman” so as to aid the authorities of one country who had deliberately chosen not to seek an order in their own country which would be subject to judicial scrutiny there. It seems to us that it was in that context that the judge made the comments in the final paragraph of his ruling (see para 30). Like the judge, we regard this as an important matter. From the passages in the ruling to which we have referred, in our opinion the judge did exercise his discretion in relation to the non-disclosure matters without reference to the need for those matters to be dealt with by the Secretary of State or the South African court. It is not entirely clear to what issue the judge was referring in the final paragraph of his ruling. We can see that the submission made by Mr Perry that it was inappropriate for the Crown Court to act as the primary policeman in respect of this matter has some force. However, since we have concluded that the court had no jurisdiction to make a worldwide restraint order, in our judgment, the relevance of this submission is substantially reduced. If it were necessary for us to hold that the exercise by the judge of his discretion was flawed and that we must exercise the discretion afresh, we would conclude that all these matters of non-disclosure are not sufficient to cause us, in the exercise of our discretion, to reach a different conclusion from that of the judge. Conclusion 60. It follows from our above conclusions that in our judgment the RO Order and the DO Order made by the Judge must both be quashed. In their place we would substitute a restraint order prohibiting the appellant from dealing with any property of his in England and Wales. We leave counsel to draft the appropriate order. It is conceded by Mr Mitchell that in these circumstances there is no basis for making a disclosure order other than in respect of property located in England and Wales. For these reasons and to this extent this appeal is allowed. Post Script 61. The Criminal Procedure Rules make provision for applications in respect of proceedings pursuant to POCA. Rule 59.4(1), (2) and (5) deal with the giving of notice of applications for a restraint order and variation of such an order. In this case, Mr Mitchell accepted that notice of the application to vary the RO ought to have been given to the appellant. We wish to draw attention to these rules and emphasize that they must be complied with. 62. We were surprised to be told that ex parte applications pursuant to POCA are normally dealt with by crown courts on paper without the attendance of the party making the application. It seems to us that in an application of this importance and complexity it ought normally to be dealt with at a hearing whether or not it is being made ex parte. The same applies to applications to vary the order. At such a hearing a full record of the hearing should be made. This would bring proceedings on such applications more in line with applications for Freezing Orders in the civil courts upon which these orders are based.

```yaml citation: '[2008] EWCA Crim 530' date: '2008-03-18' judges: - LORD JUSTICE GAGE - 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: 200500144/A1 Neutral Citation Number: [2005] EWCA Crim 880 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 7th April 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE BODEY MR JUSTICE OWEN - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 5 OF 2005 (ROBERT HORATIO ORR) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS B CHEEMA appeared on behalf of the ATTORNEY GENERAL MR L ROBERTS appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988 , to refer sentences said to be unduly lenient. We grant leave. 2. The offender is 20, having been born in March 1985. On 10th May 2004 he pleaded guilty to dangerous driving and other driving offences and sentence was adjourned. On 20th October 2004, which was the date fixed for the trial of a second indictment, he pleaded guilty to all three counts in that indictment, namely possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968 , possessing a disguised firearm, contrary to section 5(1) A(a) of the Act and possession of ammunition without a certificate, contrary to section 1(1) (b) of the Act . Sentence was adjourned for the preparation of reports. On 13th December 2004 he was sentenced by His Honour Judge Mort, at Minshull Street Crown Court in Manchester in the following way: for dangerous driving, 6 months detention; for driving while disqualified; 4 months' detention concurrently and no separate penalty was imposed for having no insurance. On the firearms indictment, concurrent sentences were passed in the following manner: 4 years' detention in relation to possessing the firearm with intent to endanger life; 4 years' detention, exceptional circumstances being found, for possession of a disguised firearm, and 12 months' detention for possession of ammunition. The total sentence, it follows, was one of 4 years' detention. 3. In summary, the offender was seen at about 8 o'clock in the evening riding a bicycle on a footpath in a residential area. He was arrested when he abandoned his bicycle and attempted to dispose of a small metal item behind a fence. That proved to have the appearance of a key fob but was in fact a firearm adapted for the discharge of ammunition. It was loaded with two live bullets. He was wearing body armour and thick gloves. 4. On the day of trial he admitted by reason of the plea which he tendered possessing that firearm with intent to endanger life. It is right to say that the firearm had not previously been discharged. 5. In a little more detail, on 18th May 2004, a week after the offender had pleaded guilty to the driving offences, police officers on mobile patrol in the Stretford area of Manchester saw three young men riding bicycles on a footpath and one of them was the offender. The other two broke away and made good their escape. The offender abandoned his bicycle and ran, pursued by the police, who saw him drop the silver key fob firearm which we have described. It is a type of firearm which is, sadly, circulating with prevalence in that city. 6. The offender's clothing included, as we have said, thick leather type gloves and, beneath his jumper, camouflaged ballistic body armour. On examination by an expert, the firearm was found to be loaded with two live rounds of ammunition. In appearance it resembled a remote locking device for a motorcar but it was a .25 mm gun, measuring approximately 8 x 3 centimetres. Initially, it had been designed for discharging blanks. But it had been modified so as to be capable of firing live ammunition from inside each of the two smooth bore barrels. It had a barrel length less than 30 centimetres, and was therefore a prohibited weapon for the purposes of section 5(1) of the Firearms Act. It carried, in consequence, a minimum statutory penalty of 5 years. To that aspect of the matter we shall later return. 7. In interview, the offender made no comment in relation to any question asked of him. Not guilty pleas were entered at the plea and directions hearing on 30th July and the trial was fixed for 20th October. On that occasion, as we have said, the offender pleaded guilty to the three counts in the indictment. The learned judge was aware that there was a mandatory minimum sentence of 5 years custody in relation to the possession of the disguised firearm. 8. Initially, pleas were tendered on the basis that the offender was minding the firearm for a short time for someone else. But that basis was not persisted in and the pleas were entered, as we indicated earlier. The offender had minor previous convictions for driving matters and failing to surrender to bail. In relation to that latter matter he had received, from the Stockport Magistrates in December 2003, a 6 month conditional discharge. The firearms offences were, in consequence, committed in breach of that conditional discharge and also while he was on bail to be sentenced for the dangerous and other driving offences. 9. The pre-sentence report which was before the sentencing judge, as it is before this Court, noted the offender's absence of serious criminal record and assessed the offender as being at a low risk of re-offending. However, the offender had given the author of that report an account which was inconsistent with the plea which he came to tender of possessing the firearm with intent to endanger life. He claimed, to the author of that report, that he had been asked to mind the device by an acquaintance and was unaware of its true nature until after his arrest. That aspect of the matter was canvassed before the sentencing judge and counsel for the defendant then, as now, Miss Roberts, made it plain that the offender accepted that he did indeed have possession of the firearm with intent to endanger life. But he would not give any further information about the circumstances in which he came to be in possession of that firearm, save to say that he had not had it for long and it belonged to someone else. 10. Miss Cheema, on behalf of the Attorney-General, draws attention to what she, rightly, submits are five aggravating features. First, the firearm was disguised and adapted for no purpose other than causing injury. Secondly, it was loaded with two rounds of live ammunition, and was being carried with intent to endanger life. Thirdly, the offender was wearing the body armour and gloves to which we have referred. Fourthly, the carrying of this weapon in these circumstances took place in the evening, in a residential area. Fifthly, the offender was at the time on bail. 11. Miss Cheema draws attention to four mitigating features. First, the pleas of guilty; secondly, the fact that the firearm had not been used; thirdly, the relative youth of the offender; and fourthly, the lack of relevant previous convictions. 12. Miss Cheema draws attention to a number of authorities apart from R v Avis [1998] 1 Cr App R 420 , in particular, Attorney-General's Reference No 2 of 2000 [2001] 1 Cr App R(S) 27, Attorney-General's Reference No 49 of 1998 [1999] 1 Cr App R(S) 396 and Attorney-General Reference Nos 58 to 66 of 2002 [2003] EWCA Crim 636 . The last of those authorities was a case in which the Court dealt with a number of members of a notorious gang in Manchester. There is no evidence that this offender was a member of that or any other identifiable gang. 13. Miss Cheema submits that the sentence passed by the learned judge failed adequately to reflect either the statutory minimum in relation to count 2 or the aggravating features which we have already identified. She submits that the prevalence of the carrying and use of guns in metropolitan areas in general and the city of Manchester in particular, is such that deterrent sentences are called for. The submission is made that these sentences, in consequence, were clearly unduly lenient. 14. On behalf of the offender, Miss Roberts, in an admirable submission, said all that could be said on behalf of this offender. She accepts that it was a matter of some surprise, in the absence of any submission by her to that effect, that the learned judge should find exceptional circumstances on count 2. It appears that the learned judge's sole basis for doing so was the assessment in the pre-sentence report of the low risk of the offender re-offending. Clearly, as a matter of law, that is not and could not be an exceptional circumstance. Miss Roberts accepts here, as indeed she accepted in the court below, that this is not a case in which exceptional circumstances could properly be advanced. She repeats to this Court the deficiency in her instructions, in the sense that she was not able to obtain from the offender any proper explanation as to the circumstances in which he was in possession of this weapon, which is lethal at point blank range. She referred, by way of distinguishing features, to some of the authorities to which we have referred. She also relies upon the principle of double jeopardy, that is to say, that the offender is being, in these proceedings, sentenced a second time. She stresses the comparative youth of the offender, the favourable references which were before the sentencing judge, the indications that he is capable of leading a productive life and the absence from his record of anything of a similarly grave nature. 15. To all of these matters we have regard. This, as it seems to us, was a serious case in the three aspects reflected in the counts in the indictment. There was no reason whatever for the statutory minimum term of 5 years not to be imposed in relation to count 2. So far as count 1 is concerned, the gravity of the matter, in our judgment, lies in the particular circumstances that a loaded lethal firearm was being carried, with admitted intent to endanger life, in the street of a residential area, in the evening; and the offender was not alone. Furthermore, he was, with the intent which he admitted, equipped with the body armour which we have identified and he was wearing gloves. It cannot be said, as it seems to us, that he may merely have been wearing, for fashion reasons or otherwise, the uniform of some youths to be found in Manchester. His camouflaged ballistic armour was concealed beneath an outer garment; and the gun which he was carrying was doubly loaded. 16. Having regard to all of these matters, despite the offender's comparative youth, we would have expected, on a late plea of guilty, a sentence of at least 7 years to be passed in the court below, in relation to counts 1 and 2. Taking into account double jeopardy, the sentence which we pass, in place of the sentences of 4 years' detention passed by the learned sentencing judge, in relation to counts 1 and 2 concurrently is one of 6 years' detention.

```yaml citation: '[2005] EWCA Crim 880' date: '2005-04-07' judges: - (LORD JUSTICE ROSE) - MR JUSTICE BODEY - MR JUSTICE OWEN ```

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 1606 Case No: 200905140D4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge Forrester T20087033 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/06/2011 Before: LORD JUSTICE LEVESON MR JUSTICE KEITH and HIS HONOUR JUDGE PERT Q.C. (sitting as a judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between : DELROY BROWN Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Toby Long for the Appellant Mr Peter Kyte Q.C. for the Crown Hearing date : 10 June 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. On 3 October 2008, following a trial at the Central Criminal Court before His Honour Judge Forrester and a jury, Delroy Brown was convicted of murder and sentenced to life imprisonment with a minimum term of 20 years less time spent on remand specified under s. 269(2) of the Criminal Justice Act 2003 . His application for leave to appeal against conviction based upon fresh evidence (along with an application for the necessary extension of time) has been referred by the single judge to the full court; other grounds of appeal were refused. In relation to his conviction, we grant an extension of time and leave to appeal. A more recent application for leave to appeal sentence has been referred by the Registrar. The Background 2. The background to the attack in this case was said to be a comparatively trivial incident which took place on 10 January 2008. Khalilulah Naseri (“the deceased”) who was aged in his mid twenties, worked at his uncle’s greengrocers (M.S. Naseri) situated at 45 Electric Avenue in Brixton Market. On that day, there was an incident in which the deceased had witnessed the appellant removing an orange from the fruit displayed in the street and proceeding to peel it. He then approached the appellant and challenged him to pay for the orange; an argument ensued and a number of staff from the greengrocers and other nearby shops became involved. 3. The prosecution alleged that the argument led to the deceased being hit with a blunt object which might have been a broom handle while, at the same time, two other members of staff were also injured. The appellant then went to a parked Renault Laguna motor car (registered in the name of his wife) and took a hammer from the boot. He then threatened the deceased saying “I’m going to kill you. I’m going to take your head off with a hammer.” The incident was defused by a female and the butcher from next door taking the hammer away from the appellant. As the appellant drove away from the scene he said something like “I will return, this is not over, I am coming back for you” or “I’m coming back for your blood”. As a result of the incident the greengrocers closed early, but at 7.15 pm to 7.30 pm that evening, a group of four black males carrying metal bars was seen approaching the shop along Electric Avenue. A witness said that the “orange man” (i.e. the man involved in the incident relating to the theft of the orange) shouted “fuck you, fuck you” and he used Jamaican patois. But he did not identify the appellant out at an identification parade. In any event, the group dispersed when two Community Support Police Officers appeared. 4. The case for the prosecution was that it was this lack of respect that led to an attack some two days later, at about 7.30 pm on 12 January 2008, when the deceased was brutally attacked by between two and four black males (including the appellant either as a principal, or as a secondary party to a joint enterprise) who approached the shop from the direction of Pope’s Road. Two other members of staff, Mr Hussainkhail and Mr Hamid, were also attacked with a baton and a knife, which caused them both to fall to the ground. In the course of the attack, while inside the shop, the deceased was hit from behind by an object that was thrown at him and he received two substantial stab wounds to his chest; his heart and liver were penetrated. Although an ambulance arrived on the scene shortly after being called at 7.36 pm, the deceased was then suffering a cardiac arrest. The stab wounds proved to be fatal and he was formally pronounced dead at 8.15pm. 5. The Prosecution relied on eye witness accounts of the initial incident on 10 January and the subsequent appearance of the four men early that evening said to show that the appellant planned to return to the scene and to kill the deceased in revenge for the orange incident. They also relied on CCTV footage after the stabbing which showed two males running away from the shop at 7.35 pm towards Pope’s Road (said to be the appellant and an accomplice) along with telephone evidence (including cell site analysis) shortly before and after the murder. In that regard, the prosecution also put weight on the inference to be drawn from the fact that the appellant admitting changing his clothing and then washing the top he had been wearing (which had a distinctive logo and came from a batch of less then 100 garments of that type), at a time which was in fact shortly after the murder had taken place: the CCTV footage showed a black male running away from the greengrocers wearing a similar top to the one which the appellant had been wearing. 6. The CCTV was also important in other ways. There was a reconstruction of events after the stabbing and an expert in image analysis concluded that the degraded pattern on the appellant’s top was entirely consistent with the degraded pattern of the dark top which was seen on the original CCTV footage. CCTV footage taken at 7.36 pm from Atlantic Road of the blue Honda motor car also placed the appellant in the immediate vicinity of the scene. 7. Although the prosecution accepted that there were some inconsistencies in the accounts given by eyewitnesses, reliance was also placed on what it was contended were lies told by the appellant as to the relevant events. Thus, it was said that he had given three different versions of events (two in police interview and one from the witness box) and his version of events was not credible. We shall return both to the interviews and the evidence of the appellant the proper assessment of which lies at the foundation of this application. 8. In short, the defence case was that although the appellant had been involved in the altercation in relation to the orange, he was not part of the group that attacked the deceased. Rather, he had driven past the shop in a blue Honda which he had borrowed from a friend minutes before the killing in order to go to a nearby street to smoke cannabis. He gave evidence in his own defence that at the time of the killing he was alone in his car, smoking cannabis and he was joined by a male called Mark who by chance was looking for someone to help start his car. He maintained that he changed his clothing after the murder because it was greasy as a result of him having been working on two cars. 9. As for his interviews, he had not deliberately lied but suffered from learning difficulties (which included his inability to read road signs or tell the time). This deficit had prevented him from giving his account with the consistency to be expected of someone with greater intelligence; it had also made him suggestible during the course of lengthy interviews. These factors had caused his account of events to become distorted. The prosecution had sought to counter that contention by suggesting that the appellant had a far better understanding of things than he had pretended to have. 10. The defence also put weight on the fact that the identification of the appellant was unreliable, given that out of all the eyewitnesses, only one witness, Mr Ahmadzai, had positively identified him in an identification parade. In reality, there were also other candidates for this murder and, in consequence, the prosecution had failed to prove their case. Thus, the issue for the jury was whether they could be sure that the appellant had been correctly identified as being part of the group of males that entered the shop and whether he had the necessary intent to be convicted of murder, either as a principal or as a secondary party to a joint enterprise. 11. The issue about the level of the appellant’s intellectual functioning caused the judge to remind the jury about the respective arguments advanced by the prosecution and the defence. Having told the jury that it was agreed that the appellant was “illiterate” and “not very bright”, the judge went on to say that the prosecution’s case was that the appellant: “… is not as dim as he pretends to be; in other words he is attempting to persuade you that he is much less able to understand events than he appears” whereas the defence said that the appellant: “… was doing his best at all times, and if he appeared unconvincing in the witness box, why that is not his fault because he has genuine problems, including difficulty in concentrating.” 12. The judge made it clear that this was an issue for the jury to consider. He said: “You heard the submissions of both counsel. You have seen him. You decide. Is he dissembling before you, or may his demeanour and answers to questions have been wholly genuine?” 13. Two other passages in the summing-up are also relevant. In telling the jury that they should “make allowance for any natural understandable reasons” for any inconsistencies in a witness’s evidence, the judge added: “In the case of the defendant, I have reminded you to make allowance for the fact that he is the only witness on trial and also for any possible lack of understanding. If you think there may be a natural good reason for his asking questions to be repeated of course you will not hold it against him. You saw him and you heard him, you know a fair amount about him, you make up your own minds.” 14. Further, when the judge was giving the jury the conventional direction about how they should approach the evidence of a defendant who they thought had told lies, the judge said that it was submitted on the appellant’s behalf that “… he has made errors which were brought about by his own difficulties, he is not able to tell the time for instance. Also, submits the defence, he was influenced by the way questions were being put into simply going along with the officer who was suggesting times to him …” 15. It was common ground at the trial that, in the light of the evidence, the issue of manslaughter did not arise and the only question to be left to the jury concerned participation in murder. In addition to the standard directions about joint enterprise, the judge made it clear: “The prosecution allege that this offence was planned in advance … [I]t is alleged that the defendant had a grievance against the staff at Naseri because of the events of 10 January and decided to act in revenge; that is the allegation. It was for this reason that he and others as alleged – possibly a total of four on the evidence – … that these persons went to the greengrocers on the evening in question and attacked the staff there, killing not just one person but killing one person and injuring two others. … So, allege the Crown … it was not a spontaneous act of violence arising on the spur of the moment as sometimes may happen in a street fight. That is not the allegation in this case at all. It was planned in advance and agreed to by those involved. 16. The judge went on to make it clear that if the knifeman went beyond anything which the defendant had agreed or realised he might do, the knifeman alone was responsible but if the defendant knew that the knifeman was carrying a knife and might act in the way he did with intent to kill the deceased or cause him grievous bodily injury, by participating in the attack he had accepted the risk that the knifeman would act in that way and was responsible accordingly. He put the issue in this way: “As you appreciate, the prosecution’s case, hotly disputed by the defendant, is that this case is all about the defendant’s grievance; that it was he who intended serious revenge for his personal public humiliation on 10 January. Therefore it was his plan to cause at least really serious bodily harm to the staff at Naseri, if not to kill one or more of them, that he was present at the scene with one or more accomplices playing a part in the joint enterprise, either as the knifeman or participating by encouragement and that as a consequence of the joint actions of a number of people, those others unknown within the particulars of Count 1, Khalil was murdered. …Is that proved, or may the defendant, as he says, have been elsewhere, playing no part in the events which resulted in the death of Khalil? Thus, may the men involved, two or four, whatever it is, may the men involved have been other men with some other grievance against the staff at Naseri; perhaps, submits the defence, the earlier incident involving the mango on 5 January, about which one of the prosecution witnesses spoke.” 17. In the event, the jury resolved those issues against the appellant and he was convicted of murder. Expert Evidence 18. Following the trial, it has become clear that his then legal team advised that there were no grounds upon which an appeal against conviction could be mounted. With the assistance of his family, the appellant then changed solicitors and his new solicitor instructed a consultant clinical psychologist, Dr Bradley Mann, to examine him. Dr Mann saw the appellant on 14 July 2009, and his report shows that, on the tests he conducted, the appellant had an IQ of 58. Only 0.3% of people of his age have an IQ as low as that, though “despite that” the degree of his learning disability should nevertheless be characterised as mild. Dr Mann concluded that the appellant would have had “difficulty in being able to fully appreciate the consequences of being associated with others planning criminal activity or even the consequences of his presence during the incident”. 19. As part of the application to call Dr Mann, it was argued that if a report along these lines had been available to the defence before the trial, three consequences would have followed. First, an application to exclude the evidence relating to the appellant’s interviews by the police would have been made, and was likely to have been successful, not least because the appellant did not have an appropriate adult with him to whom he could look for advice and support. Secondly, it is submitted that both the examination-in-chief and cross-examination of the appellant, as well as his treatment by the judge, would have been more sensitive to the level of his intellectual functioning than had in fact been the case; this would have led to a rejection of the proposition advanced by the Crown that the appellant was not as dim as he appeared to be. Third, the evidence would have impacted on the approach to issues of joint enterprise. To deal with this evidence, the Crown have obtained reports from Professor Gisli Gudjonsson, a clinical forensic psychologist and Professor of Forensic Psychology at the Institute of Psychology, King’s College, London,. We decided to admit the evidence of both witnesses de bene esse . 20. It is appropriate to start any analysis with a clear enunciation of the way in which the court must approach this type of evidence. The governing principles are well known and set out in s. 23 of the Criminal Appeal Act 1968 , as amended by the Criminal Appeal Act 1995 , (“ the 1968 Act ”) in these terms: “23.─ (1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice─ … (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to─ (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” 21. The ambit of the provision in relation to expert evidence has been much trodden over recent years but is now clear. It is clearly expressed in R v Steven Jones [1997] 1 Cr. App. R. 86 by Lord Bingham CJ when he said (at 92G): “The Court has in the past accepted that section 23 may apply to expert evidence, and we would not wish to circumscribe the operation of a statutory rule enacted to protect defendants against the risk of wrongful conviction. But it seems unlikely that the section was framed with expert evidence prominently in mind. The requirement in subsection (2)(a) that the evidence should appear 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 an ordinary sense. The giving of a reasonable explanation for failure to adduce the evidence before the jury again applies more aptly to factual evidence of which a party was 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 standard and experience, are interchangeable in a way in which factual witnesses are not. 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.” 22. Thus, the first stage is to consider whether evidence which may have been heard de bene esse should, in fact, be received either because it satisfies the criteria set out in s. 23(2) of the 1968 Act which, in the context of this case concerning expert evidence, is likely to mean whether there is a reasonable explanation for the failure to adduce the evidence at trial or whether it is appropriate to go beyond the particular considerations set out in s. 23(2) to the wider interests of justice. If a decision is made to receive the evidence, the second stage is to determine whether it appears to the Court that the evidence affords any ground for allowing the appeal on the basis that although contained within s. 23(2), if it does not afford a ground for allowing the appeal, the material takes the case no further. 23. The grounds for allowing an appeal have been considered in a large number of recent decisions, most recently in R v. Noye [2011] EWCA Crim 650 , which confirms that the correct approach is to be found in Dial & anor v. State of Trinidad and Tobago [2005] UKBC 4; [2005] 1 WLR 1660 . In that case, Lord Brown of Eaton-under-Heywood who gave the judgment of the majority (the others being Lord Bingham of Cornhill and Lord Carswell) analysed the authorities and put the matter in this way: “[31] In the board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view ‛by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict’: R v Pendleton [2002] 1 All ER 524 at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP [1973] 3 All ER 762 , [1974] AC 878 at 906, and affirmed by the House in R v Pendleton: “While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe].” [32] That is the principle correctly and consistently applied nowadays by the Criminal Division of the Court of Appeal in England – see, for example, R v Hakala [2002] EWCA Crim 730 , R v. Hanratty, decd. [2002] 3 All ER 534 and R v Ishtiaq Ahmed [2002] EWCA Crim 2781 . It was neatly expressed by Judge LJ in R v Hakala , at para.11, thus: “However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe.” 24. There is no doubt that Dr Mann’s report “appears … to be capable of belief” in the sense that its contents represent his views, and that any oral evidence he would have given at the trial along the lines of his report would have been admissible. In that context, it is necessary to consider why evidence now said to be relevant was not called at the trial. To that end, the appellant has waived privilege and a detailed statement obtained from leading and junior counsel then instructed. 25. In short, it is clear that the defence did not commission such a report because neither leading or junior counsel, nor their solicitors, considered it necessary. In a note signed by leading and junior counsel, it is explained: “There was no question but that the [appellant] was uneducated and illiterate. It did not appear to us or anyone whom we were dealing with who knew the applicant that he was mentally unable to deal with the trial or the issues that arose. We spoke with him on many occasions and he came across to me [leading counsel] as a man from the country in Jamaica (my father was Jamaican); he was a simple man with a strong Jamaican accent, but not stupid. He was in his late 30s when we represented him, he had been in this country for ten years, he had worked as a mini-cab driver and as a casual mechanic. He had been interviewed by the police over an extensive period and he appeared to deal with the questions well enough. He was able to give us clear instructions.” 26. That explanation is, of course, entirely reasonable, but we must observe that it rather undermines the appellant’s case about how significant the level of his intellectual deficit was, given that it was not observed or experienced by leading and junior counsel who had spent many hours with him, and who inevitably had discussed with him at some length both the case and the evidence; they were also clearly looking for ways to ensure that the defence case could be advanced as attractively as possible. 27. We turn, then, to the views of Dr Mann and Professor Gudjonsson. In addition to having studied their various reports, we permitted them to be cross-examined so as to reach a conclusion whether Dr Mann’s views, when considered alongside those of Professor Gudjonsson, might afford any ground for allowing the appeal. They each took the appellant’s personal history from him, and that revealed that he had gone to school in Jamaica. He had never learnt to read or write, and claimed to be totally illiterate. He had left school without any qualifications when he was 14 or 15. He had done “a kind of basic practical ‘apprenticeship’ in car mechanics” in Jamaica, which had enabled him to do simple repair and maintenance tasks. That was the work he had done both in Jamaica and since coming to the UK in about 1998. He claimed to have difficulty working out the correct change when buying something and telling the time, but he said that he had no difficulty using public transport, that he was able to look after his daughter, and he described his cooking and cleaning skills as good. 28. When it came to how the appellant behaved when he was seen by Dr Mann and Professor Gudjonsson, Dr Mann said that the appellant engaged fully in the assessment. Professor Gudjonsson agreed, saying that the appellant was reasonably friendly and co-operative. They agreed that the appellant’s level of concentration was good, Dr Mann commenting that eye contact and conversation was normal. But what came across to Professor Gudjonsson was that the appellant was “exceedingly assertive” and “confrontational”. He kept on challenging Professor Gudjonsson if he perceived that the same or similar questions were being repeated. He did not appear to be intimidated in any way. He was not afraid to express his views, and if he did not understand any of Professor Gudjonsson’s questions, he did not hesitate in saying so. He came across to Professor Gudjonsson as a strong-willed and forceful man, who had full confidence in himself, and who seemed reasonably articulate and lucid. He was able to stand up for himself. Indeed, when Dr Mann came to comment on the views of Professor Gudjonsson, he did not express surprise about the confrontational and assertive way the appellant had behaved towards Professor Gudjonsson. On the contrary, Dr Mann said that that supported the results of the tests he had carried out on the appellant and which are referred to below. 29. When it came to whether the various tests carried out on the appellant had given an accurate picture of his intellectual abilities, Dr Mann and Professor Gudjonsson were not quite of the same view. The appellant’s presentation to Dr Mann suggested that the tests which he carried out provided an accurate picture of his cognitive ability, but Professor Gudjonsson was less confident of that fact, given that the appellant had been hesitant and slow when performing the tests, and had questioned why he had had to do them. 30. Professor Gudjonsson’s impression of the appellant as an assertive, confident and strong-willed man, who was not easily led by others, was supported by tests conducted by Dr Mann designed to assess the extent to which the appellant was suggestible, whether by way of response to leading questions or when it was suggested to him that a previous answer he had given was wrong. The tests showed that he was less prone to suggestibility than the general population, and that was illustrated by the way he maintained his account during his police interviews of having been elsewhere at the relevant time, despite pressure put on him to admit that he had been present when Mr Naseri had been attacked. 31. The impression which Professor Gudjonsson had of the appellant was also supported by a test carried out by Dr Mann which was designed to assess the extent to which the appellant would do something which he was asked to do even if he did not want to do it. The test showed that he was significantly less likely to do something he did not want to do than other people. Dr Mann and Professor Gudjonsson agree that the result of this test should be treated with caution because people with a low IQ might have some difficulty understanding some of the questions which the test requires them to answer. But with that proviso, Professor Gudjonsson thought that the results of the test showed that the appellant’s comprehension of language was better than his IQ indicated (which was consistent with some of the words he used, and used appropriately, like “guarantee” and “distribute”), that he did not have a tendency to answer questions by agreeing with them whether he agreed with them or not, and that despite his apparently low intelligence, the appellant was “exceptionally robust when it comes to resisting inter-personal pressure”. 32. We return to the level of the appellant’s intellectual functioning. When Professor Gudjonsson tested it, the appellant’s IQ turned out to be 55, marginally lower than Dr Mann’s tests had revealed. Having said that, Professor Gudjonsson was doubtful whether the scores were entirely representative of his “true” intellectual ability. His low IQ score could be attributable in part to a lack of education rather than genuine intellectual impairment. His apparent lack of confidence when taking the tests may have artificially lowered the scores he obtained. And the way he expressed himself, the level of his social functioning during the assessment, the fact that he could do the basic jobs expected of a car mechanic, his verbal and comprehension skills as revealed by the “compliance” test administered by Dr Mann, and the views of his previous legal team all suggested to Professor Gudjonsson a level of intellect greater than his IQ scores indicated. 33. Although the appellant is not particularly bright, Professor Gudjonsson’s view was that he understands questions and can give coherent answers. When you speak to him, he said, it is not obvious that he has a low IQ. Indeed, Professor Gudjonsson was astonished by how “sharp” the appellant could, at times, be. For example, his assessment of the appellant was interrupted by a break for lunch. When it resumed, Professor Gudjonsson asked the applicant whether it was still the morning or now the afternoon. The appellant said that he did not know. “Surely you know whether it is the morning or afternoon?” asked Professor Gudjonsson. “Define what you mean by afternoon”, replied the appellant. 34. For his part, Dr Mann acknowledged that one’s IQ is really only the starting point when it comes to assessing intellectual functioning. It is a useful tool and provides a snapshot of cognitive functioning at the time of the assessment, but the scores have to be considered alongside observation and what Dr Mann called “functioning ability”. On the other hand, the appellant’s functioning ability had to be considered in the light of his IQ, and since his IQ suggested that he could not carry out tasks requiring a high element of intellectual functioning, the sort of tasks he would have been performing as a car mechanic had to be seen in that light. The transcripts of his interviews by the police showed that he could maintain a high level of concentration and “hold a story”, but the transcripts of his evidence at the trial showed instances of him not understanding some questions as well as poor memory, and Dr Mann said that that supported the view which he had formed of the appellant’s intellectual functioning based on his IQ. 35. We were not impressed by the examples of supposed lack of comprehension and poor memory in the appellant’s evidence which Mr Long put to Professor Gudjonsson. His failure to comprehend was not necessarily genuine, particularly as the occasions when he appeared to misunderstand the questions were times when his account was being severely tested. The things which he could not remember related for the most part to what he had said when interviewed, which had been some time previously and which he might have had some difficulty recalling (particularly if what he had said then had been untrue). As Professor Gudjonsson said, the occasions when the transcripts recorded him correcting counsel show that he was both alert and vigilant at the time. 36. Moreover, Dr Mann’s initial assessment of the appellant’s intellectual functioning had not taken account of what his legal team thought of him because, prior to giving evidence, he had not seen the note to which we have referred. When confronted by it, Dr Mann acknowledged that their view of him carried considerable weight, not merely because they had spent a lot of time with him, but also because of their experience in dealing with people going through the criminal justice system. He acknowledged that this account made his own concerns about the appellant’s ability to concentrate, to understand questions and to answer them properly more questionable. In the end, there struck us as being very little between Dr Mann and Professor Gudjonsson in terms of the appellant’s intellectual functioning, but if there was still some difference between them, we preferred Professor Gudjonsson’s assessment. 37. There is one other topic dealt with by Dr Mann and Professor Gudjonsson which we must mention. Dr Mann did not doubt that the appellant knew the difference between lying and telling the truth. Indeed, we think that Dr Mann would agree with Professor Gudjonsson that the appellant understands the potential negative consequences of telling a lie, that is to say that it may get you into trouble. But Professor Gudjonsson acknowledged that “the lying of persons of very low intelligence is likely to lack subtleties and sophistication”, and that, we think, is what Dr Mann was talking about when he said that the appellant was unable to appreciate how, if the jury thought that his account was untrue, the fact that he had in their view lied about his whereabouts would impact on the assessment of his guilt. As Dr Mann put it, the appellant “would have difficult[y] in appreciating any benefits to admitting his presence but non participation at the scene of crime”. 38. With all that in mind, we turn to the grounds of appeal to see whether Dr Mann’s evidence (when considered alongside that of Professor Gudjonsson) could afford any ground for allowing the appeal. The first is whether the evidence of the appellant’s interviews by the police would have been excluded in the light of their evidence, which would presumably have been considered by the judge on a voire dire . In written submissions, there were three limbs to the argument. First, Dr Mann thought that the appellant would have had difficulty in understanding his rights when they were explained to him by the police, and he would not have been able to evaluate the advantages and disadvantages of exercising those rights. For example, he claimed to Dr Mann that he had not been aware that he could make no comment to the questions he was asked. Secondly, Dr Mann and Professor Gudjonsson agree that the level of the appellant’s intellectual functioning meant that, had that fact been appreciated by the police, he should have been accompanied by an appropriate adult. Thirdly, Dr Mann says that the appellant told him that there had been times when he had not understood what he was being asked. Accordingly, he should have been questioned in a way which ensured that he was not left in doubt about what he was being asked, and that more effort should have been made to ensure that he knew that he should ask for the question to be repeated or rephrased if he did not understand it. 39. After Dr Mann and Professor Gudjonsson had given evidence, Mr Long took the view that he could no longer pursue a ground of appeal relating to admissibility. We agree with that stance. Although the appellant was, in fact, entitled to the assistance of an appropriate adult, when the police told him that there was special help which had to be given to people with learning difficulties or disabilities and asked if he needed this special help, he replied in the negative. He similarly denied needing the special help that was given to people who went to a special school or help for any other reason; he did, however, make it clear that he did not read very well and would need help reading documentation. In that regard, it is worth noting that the force medical examiner did not recommend that he required an appropriate adult. 40. We add that the appellant’s solicitor was present throughout the interviews and played a comparatively pro-active role; when it came to legal advice, any appropriate adult would have had to defer to the advice which the solicitor gave him, and the role of the appropriate adult would really have been to give the appellant support and non-legal advice. We acknowledge that the appellant did not have that assistance, but although we should not be regarded as underestimating the important and valuable role which the appropriate adult can play, we do not accept that it is likely that an appropriate adult would have made any impact on the course of the interviews not least because Professor Gudjonsson’s assessment of the appellant (not disputed by Dr Mann) was as a confident, assertive and strong-willed man. In that regard, R v. Law-Thompson [1997] Crim LR 674 makes it clear that the absence of an appropriate adult from interviews where a solicitor was present is unlikely, in itself, to justify excluding the interviews. 41. We turn to the way in which the appellant was interviewed by the police and dealt with in court. As to the police, the interviews were recorded, and both Dr Mann and Professsor Gudjonsson were provided with transcripts of them. Only Professor Gudjonsson analysed them in his report and concluded that the appellant had no apparent difficulty in concentrating, had been able to give “reasonably clear and comprehensible answers”, and had “apparently had no major problems with understanding the questions”. He referred to occasions when the appellant’s solicitor intervened (appropriately, in Professor Gudjonsson’s view) to clarify matters and to further communication, and to occasions when the appellant himself wanted the interviews to break off so that he could consult with his solicitor. In his evidence, Dr Mann said that he did not disagree with Professor Gudjonsson’s assessment of the interviews. We have read the transcripts ourselves (including, where necessary, the unedited version which did not go to the jury) so that we could see for ourselves, for example, how the caution was explained to the appellant and Professor Gudjonsson’s assessment of how the way in which appellant coped accords with ours. 42. Finally on this aspect of the case, before being assessed by Dr Mann, it has never been the appellant’s case (apart from what he told Dr Mann about not appreciating that he could make no comment to the questions he was asked) that he had difficulty understanding his rights or evaluating what his stance in the interviews should be. Although he has waived any privilege relating to his dealings with his lawyers, his solicitor has not said that when she explained the appellant’s rights to him, he appeared not to understand what she was saying, or appeared unable to decide whether to answer the questions he would be asked. Admittedly, he told Dr Mann that he had not realised that he could make no comment to the questions he was asked, but Dr Mann did not come to any conclusion as to whether he believed the applicant or not. Again, when Professor Gudjonsson took the applicant through the words of the caution, the applicant said that he did not understand them, but Professor Gudjonsson as well was not sure whether that was true or whether this was an example of the applicant not co-operating with him. All in all, even if this ground of appeal had been pursued, we would have been wholly unpersuaded that there was any real chance that the evidence of the interviews might have been excluded if evidence along the lines of Dr Mann’s and Professor Gudjonsson’s reports had been before the court on any application to exclude that evidence. 43. Turning to what happened in court, it is important to remember that the trial proceeded on the basis that the appellant was illiterate and “not very bright”. The appellant gave evidence over two days, and as the judge noted, the jury had a good opportunity to come to their own assessment of how bright he was (albeit that theirs was a lay assessment based on how the appellant appeared in the artificial surroundings of the courtroom). To the extent that it is said that the questioning of the appellant by counsel for the prosecution was inappropriate for someone who was illiterate and “not very bright”, it was no more inappropriate for someone with the appellant’s IQ, and certainly no more inappropriate for someone with what Professor Gudjonsson described as the appellant’s “true” intellectual ability. The allegation in relation to the judge is that when the appellant answered “sorry?” or words to that effect to questions he was asked, the judge intervened by saying “Did you not hear?”, leaving the jury with the impression that the judge thought that the appellant was being evasive, when in truth it was just his low intelligence which had caused him not to understand the question. In fact, that happened just three times during the appellant’s evidence, and we doubt very much whether the jury would have thought that the judge had thought that the appellant was being evasive. And as for the suggestion that the jury would have viewed the appellant’s evidence in a different light if they had heard from Dr Mann and Professor Gudjonsson, we do not think that they would have thought any differently of his evidence than how they would have viewed it in the light of their knowledge that he was illiterate and “not very bright”. The fact is that Professor Gudjonsson’s view is that the applicant performed “reasonably well” when giving evidence. Again, in his evidence, Dr Mann did not disagree with that assessment: neither do we. 44. We have not overlooked the suggestion made by the prosecution that the appellant was not as dim as he appeared to be, and the argument that this suggestion would have been put to rest if the jury had had the benefit of Dr Mann’s evidence. We do not agree. The jury would also have had Professor Gudjonsson’s evidence and, in particular, his evidence about the appellant’s “true” intellectual ability. If anything, the jury, when looking at the evidence of Dr Mann and Professor Gudjonsson together, would have been more likely to think that the evidence supported the prosecution’s suggestion rather than contradicting it. In considering whether the appellant’s conviction was safe despite this evidence, we have borne in mind as well the view of the appellant’s legal team which, again, was not contradicted by Dr Mann and which he accepted was an important factor to be taken into account. 45. Finally, within the context of the fresh evidence, Mr Long also contends that the new material would have impacted on the approach of the learned judge to the issue of joint enterprise. The primary case for the Crown was that the appellant was the man who had stabbed the deceased. However, in the alternative, it was contended that, if the jury could not be sure of that, the appellant was equally as guilty of murder as whoever had stabbed the deceased because he had participated in a joint enterprise whose aim was to kill the deceased or to cause him at least really serious harm. The jury may therefore have convicted the appellant of murder on the basis of the alternative case one of the issues in that case being whether the appellant had actually done anything himself which amounted to his participation in the joint enterprise either by encouraging the others to do what they did because it was he who had “set up the attack”, or accompanying the others intending to encourage the others to do what he realised they were going to do. 46. Mr Long argues that if there had been evidence from a professional about the level of the appellant’s intellectual functioning, the judge would have had to tailor his directions to the jury about whether the appellant had actually intended by his presence to encourage the others to attack the deceased to take account of any tendency on the appellant’s part, as a result of the level of his intellectual functioning, to accompany the others without thinking what the impact of his presence at the scene might have. Had the jury had to address that issue, the jury might not have been sure that he had participated in the joint enterprise, and he would have been entitled to be acquitted altogether. 47. The second point taken by Mr Long in relation to this alternative formulation of the prosecution case relates to the knife and whether, on the assumption that the appellant knew that one of the people he went to the scene with had a knife, he realised that it might be used to cause the deceased at least really serious harm. It is said that if there had been evidence from a professional about the level of the appellant’s intellectual functioning, the jury might not have been sure of that feature of the case, and that in those circumstances the judge would almost inevitably have had to have left the possibility of convicting the appellant of manslaughter to the jury. 48. If it would have been appropriate in the light of Dr Mann’s evidence for the judge to tailor his directions to the jury about whether the appellant had intended by his presence to encourage the others to attack the deceased to take account of the appellant having unthinkingly accompanied the others, it would have been just as appropriate for the judge to have done that on the basis that the appellant was “not very bright”. The evidence of Dr Mann would have made such a direction no more necessary than it would have been without his evidence. Equally, if it would have been appropriate in the light of Dr Mann’s evidence for the judge to have left manslaughter to the jury on the basis that the appellant’s lack of intelligence was such that he might not have realised that whoever had the knife might use it to cause the deceased at least really serious harm, it would have been just as appropriate for the judge to have done that on the basis that the appellant was “not very bright”. In this instance as well, the evidence of Dr Mann would have made such a direction no more necessary than it would have been without his evidence. In the event, we do not accept that the directions provided by the judge were not entirely appropriate and tailored to the case because they did require the jury to focus on this defendant (with all the descriptions of his intellectual deficits to which we have referred and which were identified both in the trial and the summing up) and what he intended. The jury had abundant material as to the level at which the appellant functioned: taking the broad view espoused by Professor Gudjonsson (which we have said that we prefer), we do not accept that putting IQ numbers would have helped. 49. The final point taken by Mr Long relates to the decision-making of the appellant during interview and at trial, namely, that a man of greater intelligence may have decided not to deny his presence at the scene, but to claim that he had not been a party to any plan to attack the deceased and had not attacked him himself. In our judgment, save for speculation on the part of Dr Mann, there is simply no basis in any of the evidence for this argument which, in any event, is not persuasive having regard to the circumstances in which the appellant found himself. Thus, the appellant might well have thought that if he admitted that he had been there, it would not be possible for him to deny that he had taken part in the attack on the deceased, not least because the attack followed an occasion when he clearly believed that the deceased had shown him disrespect. In these circumstances, it would have been entirely understandable for him to deny that he was there. This was far from being an obvious example of poor decision-making by a man of limited intellectual ability. Furthermore, this point might have had an evidential basis if the appellant had ever said that he had denied that he had been at the scene because he had then thought that that was the best defence he had. In fact, he has consistently maintained that he was not there and still does. It is simply not possible to approach this case on an entirely speculative basis. 50. For these reasons, we have concluded that the evidence of Dr Mann, when looked at alongside that of Professor Gudjonsson, does not afford any ground for allowing the appellant’s appeal against his conviction. In those circumstances, although we heard this evidence and the rebuttal de bene esse , we decline to admit it and the primary ground upon which this appeal has been brought (being the ground referred to the full court by the single judge) fails. Alternative Verdicts 51. Although we have rejected Mr Long’s contention that it would have been open to the jury to convict the applicant of involuntary manslaughter on the grounds that he took part in a joint enterprise in which he knew that a knife was involved but neither intended, nor realised, that the knife might be used to cause really serious bodily injury, Mr Long had a further argument in relation to the failure to leave an alternative verdict of manslaughter which he maintained was a free standing complaint based on the decision of the House of Lords in R v. Coutts [2006] UKHL 39 ; [2007] 1 Cr App R 60 : he did, however, make it clear that he would not have advanced this contention in the absence of other grounds. 52. Coutts was concerned with the murder of a woman who died at the flat of the accused and whose body was found a month later on public land. The Crown alleged deliberate strangulation to satisfy sexual fantasy; the defence contended accident in the course of consensual asphyxial sexual activity. It was common ground at trial that it would be unfair to leave manslaughter as an alternative verdict but the House of Lords concluded that such a verdict was open on the evidence. Lord Bingham made it clear that the alternative had to suggest itself to the mind “of any ordinarily knowledgeable and alert criminal judge” (rather one that “ingenious counsel may identify through diligent research after the trial”); other speeches identify a similar approach. 53. In R v. Banton [2007] EWCA Crim 1847 , the issue was considered in the context of a defendant who asserted that the victim was one of three aggressors who assailed her with bottles, whereupon to defend herself, she picked up one bottle and hurled it in his general direction, not intending to hurt or cause injury. Unlawful wounding was not left to the jury and, in dismissing the appeal, Toulson LJ said (at para. 21 et seq): “The foundation of the prosecution's case against the appellant was that she smashed a bottle in the complainant's face. The appellant denied it. This presented the jury with a stark question of fact. For the prosecution to have sought the appellant's conviction on a different factual basis would have been a radical departure from the case presented … The existence of some possible evidential basis for such an alternative verdict would by no means necessarily be a sufficient basis for putting it to the jury. The judge would be justified in not leaving it to the jury if he reasonably considered that it to be remote from the real point of the case … realistically it is hard to imagine that the jury would have convicted the appellant of wounding with intent unless they accepted the prosecution witnesses' account of what she did". 54. In R v. Foster [2007] EWCA Crim 2869 , [2008] 1 Cr App R 470 , it was emphasised that the danger highlighted in some of the speeches in Coutts concerned the risk that faced with the stark choice between convicting a defendant whose behaviour was utterly deplorable and acquitting him altogether, the jury may unconsciously but wrongly allow its decision to be influenced by considerations extraneous to the evidence but, as Sir Igor Judge P (as he then was) explained (at para. 60), that risk is not always present. Sir Igor went on (at para. 61): “The judgment whether a ‘lesser alternative verdict’ should be left to the jury involves an examination of all the evidence, disputed and undisputed, and the issues of law and fact to which it has given rise. Within that case specific framework the judge must examine whether the absence of a direction about a lesser alternative verdict or verdicts would oblige the jury to make an unrealistic choice between the serious charge and complete acquittal which would unfairly disadvantage the defendant. In this context the judge enjoys ‘the feel of the case’ which this court lacks. On appeal the problem which arises is not whether a direction in relation to a lesser alternative verdict was omitted, and whether its omission was erroneous, but whether the safety of the conviction is undermined.” 55. Against that background, it is necessary to consider the facts of this case. Thus, as we have recounted, the prosecution maintained that the background was the incident on 10 January which directly impacted on the appellant and which had led to his seeking to retrieve a hammer from his car whether to use offensively or defensively. There was no challenge to the evidence that the death of the deceased (and the injuries to the others in the shop) was the consequence of a concerted (and obviously pre-arranged) attack involving weapons, including at least one knife. The judge made it clear that the jury had to be sure that the appellant knew that the knifeman (assuming it was not him) was carrying a knife and might act in the way that he did with intent to kill or cause grievous bodily harm. In the context of a planned multi-handed attack with weapons, including a knife, it is simply not feasible once the jury were sure that the appellant was involved in the attack that he might not have appreciated that the knife would be used. That is doubtless why it was common ground between the extremely experienced prosecuting and defence counsel (and the judge who will have formed his own independent view) that manslaughter was not a realistic option. We agree. 56. In the circumstances, there is no basis upon which it can properly be concluded that the verdict of the jury in this case was unsafe. The appeal against conviction is dismissed. Sentence 57. The appellant is now 42 years of age; his only relevant previous conviction concerned possession of an offensive weapon (a knife) in public for which he was sentenced to a community punishment. The judge, however, concluded that this “vicious and cowardly attack” had involved a knife being carried in a public place and used with an intention to kill: he considered it a revenge attack after the appellant felt humiliated and disrespected. In the context of a starting point of 15 years, he found two aggravating features, namely a significant degree of planning and premeditation and the injuries caused to two others. In that context, pursuant to s. 269(2) of the Criminal Justice Act 2003 , he fixed the minimum term at 20 years. 58. Mr Long submits that the judge failed to have regard, as mitigation, to the appellant’s intellectual deficit and should have reduced the minimum term; he points to para. 11(c) of Schedule 21 to the Act as identifying, as a potential mitigating factor, the fact that an offender suffers from a mental disorder or disability which, although not falling within s. 2(1) of the Homicide Act 1957 (so as to give rise to a defence of diminished responsibility), lowered his degree of culpability. The short answer to that submission is that there is no basis for concluding that this appellant’s intellectual deficit did, in fact, lower his culpability in any way. 59. Standing back, however, there is another reason why this sentence was entirely appropriate. The carrying in public of knives and their use to cause injury or death is of the very greatest public concern and, well before the amendment to Schedule 21 to the 2003 Act which included, as para. 5A, a new starting point for the use of a knife or other weapon taken to the scene (which was passed and implemented subsequent to this case and, we emphasise, is therefore irrelevant to the determination of this sentence), courts have repeated how seriously such an aggravating feature must be viewed. In the circumstances, this application for leave to appeal sentence is also refused.

```yaml citation: '[2011] EWCA Crim 1606' date: '2011-06-29' judges: - LORD JUSTICE LEVESON - HIS HONOUR JUDGE PERT Q.C. ```

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No: 04/5758/C3 Neutral Citation Number: [2005] EWCA Crim 3159 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 8 November 2005 B E F O R E: LORD JUSTICE LONGMORE MR JUSTICE DAVID STEEL RECORDER OF WINCHESTER HIS HONOUR JUDGE BRODRICK - - - - - - - R E G I N A -v- MENELIK TUTAN PHILIP DANIEL MAILLET - - - - - - - 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 JEFFREY LAMB appeared on behalf of the APPELLANT MISS SALLY THOMPSON appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE LONGMORE: On 18th August 2004 in the Crown Court at Croydon before His Honour Judge Macrae this appellant, Menelik Maillet, was convicted following a retrial of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods, namely 2.5 kgs of cocaine. He was, after conviction, sentenced to a term of twelve years' imprisonment. 2. There was a co-accused who pleaded guilty a month earlier to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods and he was sentenced to a term of eight years. 3. Maillet now appeals against conviction by leave of Field J, who in granting leave said this: "This being a case where the credibility of the applicant was of major importance, it is arguable that the judge was wrong to decline to give a good character direction as to the credibility (and possibly also as to propensity) on the ground that the applicant had been cautioned for the possession of cannabis in Denzil Road NW2 for personal use." 4. The evidence was mainly that of the Customs. The Customs officer was attracted by the excessive weight of the co-accused's cooler bag, which tested positive for cocaine. The bag weighed 5.25 kgs. The bag carried by the co-accused weighed 2.47 kgs on its own and the bag carried by the appellant weighed 2.37 kgs. 5. The appellant said that he had decided to go to St Lucia in August 2003, but it appeared that no booking was made until 9th December, ten days before the appellant and the co-accused flew out. They were due to fly back on 31st December. The booking for the return flight was made on 30th January 2004. The appellant told the Customs officers that he had been on holiday. He had seen relatives but had stayed in a hotel. 6. He gave evidence. He said that he had taken £500, some clothing in his suitcase and a cooler bag. He had known the co-accused Hector for ten years. He did not know that Hector had cocaine in his bag. It was also Hector's idea to go out to St Lucia as he had friends over there. Hector's friend Tiny found them somewhere to stay on the island. Tiny said that there was a festival on the island that they would enjoy, so they decided to stay. Tiny said he would sort out their tickets. They relied on him for the following month as neither of them had any money left. He understood that Tiny was not expecting to get reimbursed for the tickets. 7. On one occasion the appellant did say that he noticed one of the cooler bags had been moved from their room into the lobby. He thought that was a bit strange. He picked one up and put it back in his room. He did not notice anything different about it. He got his ticket from Tiny two days before they left. 8. In cross-examination he agreed that it was intended to be a two-week holiday but was in fact a six-week break. He agreed that he could not get it right in interview. He agreed that he had not purchased any souvenirs, even during the first two weeks of his stay. The festival was a one-day affair. It occurred about a week after they were due to leave. They had stayed longer because they had no money. He acknowledged that it was very generous of Tiny to pay for their flights. 9. This appeal is centred on the refusal of the judge to give a good character direction. The way the question of character arose was that in the first place counsel then acting for the appellant said that he wished to raise the question whether he could adduce from the relevant police officer in cross-examination that Hector had significant previous convictions. The judge then himself raised the question of the caution which the appellant had received some five years before for the possession of cannabis for his personal use, only to be told that Aikens J, at the first trial, had directed the previous jury that no convictions were recorded against the appellant and that learned judge then proceeded to give the defendant the benefit of a good character direction. His Honour Judge Macrae disagreed that that was the right way to proceed; and the matter was left over to the next day, when counsel then appearing for the appellant decided not to pursue the matter of a good character direction on behalf of his client and made no mention of Hector's previous convictions to the jury. The learned judge said that in his view it was not right to put the appellant forward as a man of good character as that would be to mislead the jury. 10. Mr Lamb, who did not appear below, now submits to us that the judge was wrong not to have given a good character direction, and indeed a full good character direction, because the appellant's credibility and lack of propensity in committing such offences was an essential part of his defence. He also submits that the judge was wrong to regard the caution received by the appellant in May 2000 as disbarring him from being treated as a man of good character and thereby preventing his counsel in practical terms from adducing the previous convictions of the co-defendant Hector. 11. In the case of Martin [2000] 2 Cr App R 42 this court noted the helpful article of the late Sir Richard May in [1997] Crim LR page 491 identifying the problem raised by defendants being previously given cautions. That case shows that an accepted way of dealing with the problem is to direct the jury that the defendant has no previous convictions and that that should be a matter which they should bear in mind when they are considering whether to believe his evidence. That is the first limb of the normal good character direction. The actual decision in the case of Martin was that the judge there was right not to have given the second limb of the good character direction, namely propensity, and the court therefore dismissed the appeal. 12. But, in our view, when a caution is in issue, a judge is not bound to give such a direction as was given in the case of Martin . It is a matter for the judge's discretion. It is, in our judgment, difficult to criticise a judge who decides in a drug case that, when the caution is for the possession of another drug, albeit for a lesser offence and in respect of a lower class of drug, a good character direction should not be given. The fact is that this defendant, as he was entitled to do, decided to conceal from the jury a potentially relevant matter, namely that he had on a previous occasion been cautioned for possession of cannabis. It is not for the defendant to dictate to the court the terms of such a concealment and insist that, as a matter of law, a good character direction, whether one or both limbs of it, be given. 13. The result of that may be that in some cases some defendants may be more fortunate than others. But when a defendant is himself the instigator for the concealment of his past from a jury, that, in our judgment, is no injustice. For those reasons, despite the understandable grant of leave by the single judge, we find it impossible to say that His Honour Judge Macrae exercised the discretion (which he undoubtedly had) on a wrong basis in this case, and this appeal will be dismissed.

```yaml citation: '[2005] EWCA Crim 3159' date: '2005-11-08' judges: - LORD JUSTICE LONGMORE - MR JUSTICE DAVID STEEL - HIS HONOUR JUDGE BRODRICK ```

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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: 2022 02633 B5 [2023] EWCA Crim 1421 Royal Courts of Justice Strand London WC2A 2LL Thursday 5 October 2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MRS JUSTICE MAY MRS JUSTICE ELLENBOGEN REX v ELRYCK EGETON MEEK __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MS SHENAIYA KHAREGAT appeared on behalf of the Applicant _________ J U D G M E N T (Approved) THE VICE PRESIDENT: 1. This applicant was convicted of six offences against his former partner. His application for leave to appeal against conviction was refused by the single judge. It is now renewed to the full court. 2. For about six months in 2021 the applicant was in an intimate relationship with Lorraine Kennedy (‘the complainant'). The prosecution case was that during that period the applicant engaged in controlling and coercive behaviour towards the complainant, causing her to fear violence (count 1); that he assaulted her by beating on a number of occasions (counts 2, 3, 5 and 6); and that he assaulted her occasioning her actual bodily harm (count 4). 3. The complainant gave evidence about each of those matters. For present purposes it is unnecessary to go into any detail. Parts of her evidence were supported by evidence from her daughter, and from a friend who had taken photographs showing bruising of the complainant. The prosecution also adduced evidence of messages stored on the mobile phones of the complainant and her daughter, which showed some of the communications passing between each of them and the appellant. In addition, there was evidence of the appellant's previous convictions, which were relied on as showing a propensity to use violence and to behave in a threatening way towards a partner. 4. The applicant's case was a denial that any of the alleged events had occurred and an assertion that the complainant had fabricated her allegations. He gave evidence to that effect. 5. Before coming to the grounds of appeal, we summarise briefly the chronology of relevant matters. 6. On 9 December 2021 a magistrates’ court sent the applicant to the Crown Court for trial. 7. In his Defence Statement dated 10 February 2022, the applicant sought disclosure of downloads of his own phone, which had been seized from him by the police, and the phones of the complainant and her daughter. He refused to provide the police with the PIN for his phone and it was not possible for the police to unlock it. 8. At a directions hearing on 31 May 2022 Her Honour Judge Brown, who was to be the trial judge, refused a request for the applicant to be permitted to inspect his phone or to have it examined by an expert. She ruled that the applicant could instead provide his PIN so that the police could obtain a download. The judge further refused applications for downloads of the phones of the complainant and her daughter to be provided to the defence. Instead, the defence were to provide key search terms so that the prosecution could review the downloads for any disclosable material. 9. The trial was due to start on 25 July 2022. On 8 July the prosecution provided to the defence a bundle of some 450 pages containing extracts from the phone downloads. Ms Kharegat, who represented the applicant at trial as she does today, notified the court that she wished to have an application heard to vacate the trial on the ground that there was insufficient time to take instructions on this material. 10. In the event, that application was heard on the first day of the trial. It was refused, but after the jury had been sworn and the case opened, the judge allowed the afternoon for counsel and the applicant to consider the material. In giving her decision, the judge observed that the applicant was in custody and that the next available trial date would likely be a year later. 11. On 26 July 2022 a juror was ill. The jury were discharged. The judge rose briefly. When she returned to court, and before the new jury panel were brought in, she told the applicant that it had been reported to her that the applicant had made a gesture of pointing a gun at the complainant's mother, who was in the public gallery. That gesture had been witnessed by a member of the court staff. The applicant immediately denied doing so. The judge indicated that she would not take the matter any further, but warned the applicant that if he did any such thing again, he may well face other charges and may well be in contempt of court. The applicant became angry and swore at the judge. She rose to give him time to calm down. 12. When proceedings were resumed, counsel asked for time to put into writing an application that the judge should recuse herself on the grounds that she had shown apparent bias against the applicant by the manner in which she had dealt with the allegation of a threatening gesture and by her earlier ruling on disclosure and her refusal to grant an adjournment. The judge made clear that she could see no possible reason to recuse herself. The applicant interrupted the proceedings, accusing the judge of bias, and was sent to the cells. The judge told counsel that she would proceed to empanel the jury and give her preliminary remarks, would then break for the short adjournment, and would then see whether the applicant wished to return to court. She made clear that he would be permitted to return if he wished to. 13. On 27 July the applicant was not brought to court from the prison at which he was held on remand. The court was informed by the prison that he had not been produced because he had tried to assault a member of staff and had had to be restrained. In response to an enquiry by the judge, the prison indicated that there was a difficulty about providing transport for the applicant that afternoon, but the applicant had said that he was willing to attend court that afternoon or on the following day. Having heard submissions, the judge ruled that the trial should continue in the applicant's absence; his conduct was tantamount to a refusal on his part to attend court that morning, and as a result of his conduct it was not practicable to secure his attendance that afternoon. 14. The applicant attended court and gave his evidence on 28 July. He completed his evidence-in-chief. We have read the transcript of his cross-examination of that afternoon. From the outset he was argumentative. He avoided answering questions and instead insisted on making comments and statements and asking questions of prosecution counsel. When the judge tried to explain to him the need to confine himself to answering questions, he spoke over her. When the judge eventually began to warn him of the possible consequences of the way he was behaving, he accused her of wanting to "kick him out of court", saying she "had done it loads of times already". Cross-examination continued for a time, but the applicant continued to make comments and criticisms rather than answering questions and the judge told him to return to the dock. The applicant accused her of being "a complete disgrace" and a racist. At that point, around 3.30 pm, the judge sent the jury home. She told the applicant that he could continue his evidence on the following day provided he would answer questions rather than trying to make statements. 15. At the start of proceedings on 29 July, the judge asked the applicant if he wished to continue giving evidence by answering questions. The applicant replied that he believed she was racist, that he was holding her in contempt of court, and that he did not want to give evidence in her court. The judge asked the jury to rise. In their absence she told him that his conduct was unacceptable and sent him to the cells. She said he could return if he apologised and behaved properly. The applicant made clear he would not apologise for calling her a racist. 16. The defence case was then closed. The trial continued with the speeches of counsel and, on the following day, the summing-up. 17. In her summing-up the judge gave an explanation of the reasons for the applicant's absence at various stages of the trial, saying that it was necessary to do so in order to correct the misleading impression which the applicant had given to the jury. 18. The jury convicted of all counts. 19. At a later trial before a different judge the applicant was convicted of an offence of breach of a non-molestation order. He was sentenced for all the offences in February 2023. 20. Ms Kharegat has been good enough to appear today pro bono . We are grateful to her for doing so. In her written and oral submissions she advances six grounds of appeal, contending that the judge erred in the following respects. Ground 1 The applicant's request to inspect his own phone, which was an exhibit in the case, was reasonable and should have been granted. He was under no duty to disclose his PIN. Ground 2 The judge wrongly refused to order disclosure of the full download of the complainant's phone and to order a download of her daughter's phone. Such downloads would have shown the true relationship between the parties, would have shown that the complainant had not been cut off from her friends and family as she claimed, and would have shed a light on the relationship between mother and daughter which was relevant to the applicant's case. Analysis of the complainant's phone would also have enabled the applicant to test the veracity of the photographs of injuries said to have been inflicted by the applicant. Ground 3 The prosecution served the phone material more than a week later than had been ordered, leaving insufficient time for the applicant and his representatives to review it. The judge should have granted an adjournment so that the applicant could know the case against him. Ground 4 The judge failed to consider the applicant's right to be present during the proceedings and the need for him to be able to give instructions during the trial, in particular in circumstances where it had been submitted that there was insufficient preparation time pre-trial. On 27 July 2022 the judge unfairly assumed that the applicant's absence showed him to be trying to control the proceedings and wrongly failed either to adjourn or to arrange for him to be brought to court later that day. In the result, the applicant was not present to hear the cross-examination of the complainant. Ground 5 When the judge received the report of a threatening gesture, she unfairly reprimanded the applicant without giving him any chance to make representations. She thereby showed apparent bias and should have recused herself. Ground 6 The judge's direction to the jury as to why the applicant had been absent for parts of the trial was unnecessary, was given in circumstances where the judge had initially said she would not give any such explanation in her summing-up, and resulted in prejudice to the applicant. In her helpful oral development of her grounds this morning Ms Kharegat submits that individually and collectively those errors deprived the applicant of a fair trial and make his convictions unsafe. 21. We have reflected on the applicant's submissions and on the Grounds of Opposition which have been put forward in a Respondent's Notice. Our conclusions are as follows. Ground 1 The judge was entitled to make the rulings she did. It would have been wrong to order the prosecution to allow the applicant access to the phone in circumstances where there was an obvious risk that he might delete material from it. No good reason was put forward why the applicant could not provide his PIN, thus enabling the police to make a full download which could be analysed by experts on both sides. True it is that the circumstances had not arisen in which failure to provide the PIN was a separate criminal offence, but the remedy for the alleged injustice was in the applicant's own hands. We would add that it is not clear to us how the trial could realistically have been carried on, if circumstances had been allowed to obtain in which the applicant was giving evidence about what was recorded on a phone which the prosecution were not allowed to see. Ground 2 We cannot accept the submission that the applicant was entitled to the full download of the complainant's phone or that of her daughter, which would inevitably contain a great deal which was wholly irrelevant to these criminal proceedings. Insofar as the complainant had communicated with the applicant, he could of course have had access to what was recorded on his own phone if he had been prepared to disclose his PIN. Insofar as he asserted that the download would show that the complainant was living a social life inconsistent with the allegation in count 1, and/or would show that the photographs allegedly of her injuries had in some way been altered, and insofar as he was not merely hoping to be able to embark upon a lengthy fishing expedition, he could provide suitable search terms to the prosecution. The prosecution had reviewed all the material and had complied with their disclosure duty. Ground 3 The late service of the phone material is not condoned, but the reality was that counsel had sufficient time to take instructions upon it. Between them, she and the applicant knew what they were looking for. We acknowledge that the applicant himself had not received the material until very shortly before the trial, but his representatives had had it for two weeks and had therefore had the opportunity to identify parts of the material on which instructions would particularly be needed. In the circumstances, and given the very long delay which would arise if the trial date was vacated, the judge was entitled to refuse the application. Ground 4 There is no basis for the suggestion that the judge failed to consider the applicant's rights. The reality was that he had chosen to behave in a way which made it impracticable for him to be brought to court at the appropriate time. The judge, who was placed in a very difficult position by the applicant's constant misbehaviour and who had to make decisions at short notice, needed to consider not only the applicant's interests but also those of the witnesses and the jury. The applicant had only himself to blame for being absent from parts of the trial. We note that he appears to have had no difficulty in being present, and conducting himself appropriately, when giving his evidence-in-chief. He chose to adopt a different attitude when his evidence was tested in cross-examination. Ground 5 There was no arguable basis for an allegation of apparent bias, still less of actual bias. The judge's ruling as to the parameters of disclosure and her refusal of an adjournment could not possibly provide such a basis. They were case management rulings, which, if wrong, could in due course be the subject of an appeal. As to the reported gesture towards the public gallery, although the judge might have expressed herself more clearly, it was apparent that she did not intend to take the matter any further, was not making any finding against the applicant, and was merely warning him about his future conduct. She was doing all this in the absence of the jury. We sympathise with the difficulty which counsel faced when representing such a difficult lay client; but as the judge said, counsel do not merely act as a mouthpiece for whatever their lay clients may wish to say, and there was in our view no basis for an application for recusal to be made. Ground 6 Again the applicant has only himself to blame. He had chosen to make, in the presence of the jury, vociferous allegations that the judge was treating him unfairly and was wrongly kicking him out of the trial. That was a deliberate misrepresentation of the facts. It placed the court in a most difficult position. It would obviously have been wrong to discharge the jury. The judge therefore either had to address what had happened or to risk the jury reaching their verdicts on the basis of a serious misrepresentation. In our view the judge was entitled to address the matter as she did. She rightly directed the jury that they must be careful not to allow the information about what had happened, both in their presence and when they were absent, to prejudice their consideration of the evidence. 22. For those reasons, grateful though we are for Ms Kharegat's assistance, we are satisfied that there is no arguable ground of appeal against the convictions. This renewed application accordingly fails and is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2023] EWCA Crim 1421' date: '2023-10-05' judges: - LORD JUSTICE HOLROYDE - MRS JUSTICE MAY - MRS JUSTICE ELLENBOGEN ```

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: The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to the complainant shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the victim of these offences. This prohibition applies unless waived or lifted in accordance with section 3 of that Act. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral Citation No. [2024] EWCA Crim 54 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT HARROW Her Honour Judge V. Francis Case Nos. 202300756B5 and 202300758 B5 Royal Courts of Justice, Strand, London WC2A 2LL Thursday 18 January 2024 Before: LADY JUSTICE ANDREWS MR JUSTICE JAY HIS HONOUR JUDGE ANDREW LEES (Sitting as a Judge of the CACD) REX V DRISS SERHIR __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T (Approved) LADY JUSTICE ANDREWS : 1. These are renewed applications for leave to appeal against conviction and sentence following refusal by the single judge. In each case the applications are made long after the expiry of the relevant time limit. The applicant requires an extension of 280 days for leave to appeal conviction and 205 days for leave to appeal sentence. 2. On 4 May 2022, in the Crown Court at Harrow, following a trial before HHJ Francis and a jury, the applicant (then aged 21) was convicted of three counts of rape of a child under 13. On 18 July 2022, the trial judge sentenced him on each count to an extended sentence of 12 years, comprising a custodial term of 9 years and an extension period of 3 years, pursuant to section 279 of the Sentencing Act 2020 . She ordered the sentences to run concurrently. The judge also made a Sexual Harm Prevention Order for a period of 15 years. 3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences and accordingly, no matter relating to the complainant shall, during her lifetime, be included in any publication, if it is likely to lead members of the public to identify her as the victim of these offences. This prohibition applies unless waived or lifted in accordance with section 3 of that Act . 4. In support of the applications for extensions of time, the applicant stated that following his conviction he suffered from mental health issues, and was placed on suicide watch by the prison authorities. After he sought professional help with his mental health and “decided to fight for his case again”, he was advised by his trial solicitor that he had no grounds of appeal. He therefore spent some time trying to engage a fresh legal team on a private basis, which proved difficult. Many of the firms he approached had too much work as a result of the aftermath of the Covid Pandemic. Finally, in September 2022, he found out how to appeal in person. 5. He maintains that he has submitted three previous applications for leave to appeal since September 2022, and is unsure if they had been lost in the post or directed to the wrong department. However, the Criminal Appeals Office has conducted a search and can find no trace of any previous application submitted by this applicant. 6. Whilst the applicant’s mental health difficulties provide some explanation for the early part of the delay, it is not a good reason for delay of this length that the applicant has received negative advice on appeal from his trial representatives and has spent a long time trying unsuccessfully to find other lawyers who will give different advice. There is no evidence to support the applicant’s assertion that he first sought to appeal in September 2022, and it is highly unlikely that three previous applications went astray. 7. However, the ultimate test that the Court must apply is whether it is in the interests of justice to grant the extensions of time. That necessarily involves consideration of the merits of the proposed appeals. If there are genuine and sufficiently arguable grounds for doubting the fairness of the trial or the safety of the applicant’s conviction, then it generally would be in the interests of justice to grant the necessary extension. We must therefore consider, as the single judge did, whether any of the grounds would have a real prospect of success. 8. The offences were said to have been committed on the night of 21 October or early morning of 22 October 2019. The complainant (to whom we will refer as “X”) was at the relevant time a 12-year-old girl whose family were known to Social Services. She was said to be a child at risk of sexual exploitation. On 21 October 2019, she went missing from her home. Her mother was then working on night-shifts which started at 10.00 pm. That morning she came back from her shift and went to bed to sleep, planning to be up in time to collect her younger children from a childminder. She asked X to stay in the house until she woke up. However, when she woke up, she found that the front door was open and X had gone. 9. X’s mother tried to contact her by phone. She managed to speak to X, who said that she would be back before her mother left for work that evening. However, by 9.00 pm X had still not returned and her phone was now switched off. At around 12.30 am she called her mother and said that she was safe and that everything was all right, but she would not reveal where she was. Her mother said she was whispering, and her voice sounded strange and worried. 10. The following morning X telephoned her mother and her social worker, in a tearful state, and asked to be picked up from the local railway station. The social worker picked up X and returned her to her home. She was in an extremely distressed state but she would not tell her mother what had happened. Later that day, she became even more upset and agitated after her mother explained that at a Safeguarding Meeting it had been decided that every time X went missing in future, she would be checked over for injuries and marks. She ran out of the house, shouting that she would not undergo a medical examination. Eventually X was detained and placed into care. 11. X’s mother suspected that she had been hurt in some way and preserved the pair of grey tracksuit bottoms that X had been wearing in a plastic bag. The clothing was subsequently handed to the police and forensically examined. Semen with the applicant’s DNA in it was found on the outside of the crotch. 12. In her Achieving Best Evidence interview, X said she knew the applicant some time before October 2019 and that they had been communicating via social media. She had met him that afternoon for a coffee in a local cafe. He appeared to her to have taken drugs. The two of them then travelled together to London by train. Initially they went to a Pizza Hut restaurant near Baker Street station. The applicant was carrying what appeared to be a handgun, and a knife, and he had a large amount of cash on him which he asked X to hide in her bra. They then went to a hotel. The applicant went off and paid for the room telling X to wait outside. He then collected her. They went upstairs to the room together and engaged in vaginal sexual intercourse twice. Afterwards they went into Central London, spending most of the night in a shisha bar before returning to the hotel. On their return she performed oral sex on him. 13. The applicant gave a “no comment” interview following his arrest. During the course of the proceedings, he served a Defence Statement in which he denied that anything sexual had occurred between him and the complainant. He explained the presence of his semen on the complainant’s tracksuit bottoms on the basis that it must have been left on the bedcover in the same hotel room, after a previous occasion when he had stayed there and had masturbated. He suggested that X must have sat down on it inadvertently. 14. Apart from the evidence of the complainant herself and expert evidence from a forensic scientist, who disputed that the semen could have got onto tracksuit bottoms in the manner described by the applicant, the prosecution relied upon diary entries that X had made describing the events of 21 and 22 October 2019, the evidence of the mother and social worker and of one of the police officers who attended the house on 22 October about those events and X’s behaviour, and the evidence of an independent female witness, who described having seen X with a boy, loitering on the train station platform. She described X as having love bites on her neck and she had challenged X as to what she was doing and with whom. 15. The prosecution also relied on evidence from the hotel manager, who described having conducted a search of the hotel records to discover whether the applicant had booked the same or any other room in the hotel on another occasion - there were no other bookings that he could find. Finally, they relied on evidence from the officer in the case about the applicant’s arrest and police interviews and about how he, the officer, had gathered evidence including chat logs on the applicant’s phone and evidence of Internet searches undertaken by him. He also gave evidence about two relevant previous convictions of the applicant that had been ruled admissible by the trial judge as evidence of bad character following a contested application by the prosecution. One was for possession of an offensive weapon and the other for possession of a bladed article. 16. The defence case was one of denial. The applicant accepted that he was with the complainant overnight on 21 and 22 October in London and that they had stayed together at the hotel, but he maintained that there had been no sexual contact between them whilst they were together. He denied going to Pizza Hut, that he had been armed with a knife or a gun at any stage, and that he had given cash to X. He said he had booked the hotel room on the morning of 21 October, when he had travelled to London with his partner. He had left his clothes after checking in that morning and he and his partner had had sex and watched a film together before they both left the hotel. He had planned to return to London later and stay in the hotel room on his own, but he subsequently made contact with X, told her what his plans were and offered that she could come along for the day. 17. He had not expected X to stay overnight but, when she asked if she could, he agreed. He had not taken X’s phone from her but had rather gone to a shop to purchase a phone charger which they had both used to charge their phones in the hotel room. Initially they were in the room for about 25 minutes, during which time all they did was eat a McDonald’s which he had purchased on his way back from the shop. They then went out to Piccadilly, where they met some of his friends. They did not return to the hotel until around 9.00 or 10.00 that evening and after they arrived another friend rang him and suggested that they should go and meet up at the shisha bar. They left the hotel at around 11.00 to go to the shisha bar and stayed there until the next morning. The applicant said that whilst under the influence of what he had smoked at the shisha bar he may have masturbated at the hotel after their return but he did not recall doing so. Both he and X were fully clothed on their return, and they just went to sleep. They had travelled back to her home station together on the same train. 18. In the grounds of appeal, the applicant complains that he did not get a fair trial. He complains in particular about the admission of the evidence of his bad character. He also said that his defence team had failed to raise the fact that X had made allegations of sexual offences against her, which involved a group of other males, some 5 months before this indictment. He challenged X’s reliability as a witness, based on inconsistencies and her accounts of the index offences and comments made by her mother and as reported by Social Services. He sought to challenge the DNA evidence. Finally, he said that he became aware that he knew a jury member (halfway through the trial) and that the juror concerned gave him “a weird smile” just before the verdict was returned. 19. The prosecution served grounds of opposition, but it is unnecessary to refer to them in any detail in this judgment because they are generally reflected in the single judge’s reasons for refusing leave to appeal. However, as regards the point about the juror, the prosecution said that there was never any suggestion made during the trial that the defendant knew one of the jurors. If he had done so, the matter would have been investigated. Moreover, none of the jurors ever passed a note to the judge to the effect that they recognised the defendant. 20. In the light of the complaint that the defence team had failed to raise matters that the applicant alleged adversely affected the fairness of his trial, he was invited to, and did, waive privilege, although when doing so he said he was not complaining about his representation. Trial counsel has provided a response, in a note dated 30 April 2023, to which the applicant replied in a letter received on 26 May 2023. We have read both these documents. 21. Counsel rightly pointed out that X’s allegations concerning sexual behaviour of other males towards her could only have been admissible if the requirements of section 41 of the Youth Justice and Criminal Evidence Act 1999 were made out. She said that the unused material suggested that X’s complaints about the previous incident were likely to be true. Had there been any basis for believing them to be otherwise, she would have made the necessary application to adduce them as bad character evidence. She also made the valid point that, even if the evidence had been admissible and was admitted, it was likely to have engendered further sympathy for X and made matters worse for the applicant. 22. Counsel is correct to state that this evidence was inadmissible by virtue of section 41 . The applicant appears to accept this, but he complains that this statutory inhibition on cross-examination of the complainant meant that his trial was unfair. That argument has no prospect of success. Section 41 is not incompatible with Article 6 of the ECHR. It strikes a fair and proportionate balance between the interests of the defendant and the complainant by ensuring that only relevant evidence which has probative value is adduced at trial. 23. The bad character provisions provide a mechanism for relevant evidence of sexual conduct which goes to the complainant’s credibility to be adduced, but in this case trial counsel did not have the basis for making an application under those provisions. There is no merit in this complaint. As the single judge observed, the fact that the complainant had made previous allegations of rape was not relevant to any issue in this case and there was no evidence in any event that those allegations were untrue. 24. As to the forensic evidence which the applicant seeks to criticise, defence counsel at trial said that the defence instructed a forensic expert to examine the tracksuit bottoms and that that expert’s report was, if anything, more damning than that provided by the prosecution. Therefore, there was no basis for challenging the prosecution expert’s evidence relating to the semen on X’s tracksuit bottoms. 25. In refusing leave to appeal against conviction and the necessary extension of time, the single judge described the explanation given by the applicant for the presence of his semen on X’s tracksuit trousers as “preposterous” and said that he was convicted on “overwhelming” evidence. That view was plainly shared by the trial judge, who said in sentencing that the account that he gave was rightly rejected by the jury because what he described “just didn’t hang together,” and that it was a sign of the applicant’s immaturity that he could not see that. 26. The single judge also said that the applicant’s previous convictions were plainly relevant to an important matter in issue, namely the applicant’s propensity to carry weapons and the judge was entitled to rule that evidence admissible. The credibility of X was a matter for the jury to assess and it was powerfully corroborated by the DNA evidence. If the applicant had been concerned about a juror, he could and should have raised the matter at the time. 27. We agree with all those observations. The trial process was scrupulously fair. The judge’s summing-up, the transcript of which we have read, was balanced and contained all the appropriate legal directions to the jury. There is nothing in any of the applicant’s grounds that causes us to doubt the safety of his conviction for these offences. There being no point in granting the requested extension of time, we therefore refuse it and dismiss this renewed application for permission to appeal against conviction. 28. Turning to the appeal against sentence, the applicant says that the judge passed a sentence that was too long because she did not sufficiently take into account certain mitigating factors, specifically his father’s sad death from cancer shortly after being diagnosed, his own mental health issues, and his age at the time of the offences, which was 18. He also complains about the lateness of the pre-sentence report, which he says was provided less than three days before the sentencing hearing and was “not complete”. However, he does not identify what further information could or should have been in the report which might have afforded him additional mitigation. 29. The prosecution provided a Sentencing Note which suggested that the offences fell into category 2 (culpability A), with a starting point of 13 years and a range of 11 to 17. In her careful sentencing remarks, the judge explained why she had decided that the offending was at the bottom end of category 2A or the top end of category 2B, which has a starting point of 10 years and a range of 8 to 13, and why she took a starting point of 12 years. This was a sustained period of detention involving violence to a victim who was vulnerable to sexual exploitation; in terms of culpability there was grooming, including isolating X from those protecting her, and the provision of alcohol. 30. Having presided over the trial, the judge was in the best position to evaluate culpability and harm. She specifically had regard to the applicant’s age and immaturity when doing so, and they were an important feature in her decision to take a starting point of 12 years rather than 13, as she could have done. The judge then turned to the aggravating features, including the presence of a weapon which caused X to be frightened, the inability of X to return home because of the offending against her, and the fact that the offences were committed whilst the applicant was under the influence of drugs, in particular cannabis. Although the judge did not expressly articulate how much these factors would have increased the 12-year starting point, an increase of up to 2 years would have been justifiable before any personal mitigation was taken into consideration. 31. We do not consider there is any substance in the criticisms in the pre-sentence report, which is 15 pages long and appears comprehensive. It was completed on 14 July 2022, following a remote interview with the applicant on 5 July. It records that the applicant expressed no genuine remorse for the harm caused to the victim, that he continued to deny the offences and that he constantly blamed X for accusing him of something that he continued to claim he did not do, accusing her of a personal vendetta against him. He also indicated no willingness to address his cannabis consumption and said that he was still taking drugs whilst in prison. 32. The report addresses the applicant’s mental health and records, his suicidal ideation and depressive episodes. The probation officer specifically refers to a clinical psychology report which suggested that he had traits of emotionally unstable personality disorder. She gives compelling reasons to support a finding of dangerousness . The report was produced in sufficient time for the judge to read and digest it, and the applicant’s trial counsel did not need more time to consider it before addressing the judge in mitigation. 33. The judge made it clear in her sentencing remarks that she had considered the contents of the pre-sentence report, and of three separate Child Abduction Notices that had previously been served on the applicant in respect of other vulnerable young women, which the jury had not seen. She expressly took into account all the mitigating factors referred to by the applicant in his grounds of appeal, including the effect on him of his bereavement, his ongoing mental health issues and his age and immaturity. It is clear from her observation about there being no magic wand that turns an 18-year-old into a fully formed adult, and her assessment of the applicant’s immaturity, both at the time of offending and at the time of sentence, that she adopted an approach to sentencing someone of his age and immaturity that fully accorded with the Guidelines on Sentencing Children and Young Persons, although he had already turned 18 at the time of the offending. 34. In our judgment, no complaint can be made about the judge’s decision that the applicant met the criteria for dangerousness , nor with her decision in principle to pass an extended sentence. She gave clear and cogent reasons for taking that course. A 3-year extension licence period was within the reasonable range. 35. As far as the custodial element is concerned, the judge weighed all the aggravating and mitigating factors in the balance and reached a period of 9 years. That sentence, far from being obviously too long, was well within the available range of offending of this seriousness. Again, therefore, there is no purpose to be served in granting the extension of time. 36. For those reasons, this renewed application for leave to appeal against sentence is also refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2024] EWCA Crim 54' date: '2024-01-18' judges: - LADY JUSTICE ANDREWS - MR JUSTICE JAY - HIS HONOUR JUDGE ANDREW LEES ```

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: 201702251 B3 Neutral Citation Number: [2018] EWCA Crim 725 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHREWSBURY Date: 11/04/2018 Before: THE RT HON THE LORD BURNETT OF MALDON LORD CHIEF JUSTICE OF ENGLAND AND WALES THE HON MRS JUSTICE CARR DBE and THE HON MR JUSTICE PHILLIPS - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - JODIE RANA Applicant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Farrhat Arshad appeared for the Applicant Charles Hamer appeared for the Crown Hearing date: 21 March 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Burnett of Maldon CJ: 1. On 4 September 2015 in the Crown Court at Shrewsbury the applicant was convicted of arson, being reckless as to whether life was endangered (count 1), and doing an act tending to pervert the course of justice (count 2). She was sentenced to six years’ imprisonment on Count 1 by Mr Recorder Mills, with a concurrent sentence of four months’ on Count 2. The prosecution case was that she had set fire to her home in the early hours of 25 October 2014, in which her parents were asleep, and immediately maliciously blamed her boyfriend by falsely suggesting that he had threatened to kill her and her family if she did not assist him with a motor claim. We will explain the facts in more detail, but part of the prosecution case was that she was within 20 or 25 metres of the house (inferentially in it) at the time the fire was started. That was supported by agreed expert evidence relating to her mobile telephone. The applicant said she was further away but it was suggested to her, in reliance on the expert evidence, that she was lying. The essence of the case advanced before us is that the expert evidence was wrong with the result that the convictions are unsafe. 2. The application for leave to appeal against conviction on that basis was referred by the single judge to the full court together with the application to adduce fresh evidence. He extended time. We grant leave to appeal. The facts in outline 3. In 2014 the appellant, then aged 22, lived at 29 Sunningdale, Hadley, Telford with her parents, Lakhbir Rana and Paula Simmonds, and her cat. The front door was sometimes left unlocked, particularly when the appellant was out late. The garage at the side of the house, where Mr Rana kept petrol for his lawnmower in a can, had a rear entrance which was also left unlocked. 4. On Friday 24 October 2014 the appellant went out for a long evening of drinking with friends, at the end of which she was dropped off near the house at about 02.00 on Saturday 25 October. Her friend Becky Haywood had been dropped off first and sent a text at 01.59 saying she was home. The appellant used her iPhone to call Becky once she had been deposited on the corner. That call commenced at 02.03.53 and ended ending at 02.06.12. The applicant said she smoked a cigarette at that time. She told Becky that she was “on her way home” or “nearly home”. She had been dropped off on the corner of Waterloo Road and Crescent Road, a shade under 90 metres as the crow flies (a little longer by foot) from her front door. 5. At 02:15:04 the appellant’s iPhone connected to the wireless router located in her bedroom at the house. That connection signified an exchange of data and was an example of a phenomenon experienced by many who have set their phones automatically to tie up with their home wifi – it does so before one enters the house. It was at that point that the prosecution said that she must have been within 25 meters of home. 6. At about that time, or very shortly thereafter, a fire was started deliberately at the base of the only staircase in the house. Petrol was used as an accelerant. The fire developed rapidly, producing a large quantity of smoke which filled the ground floor and first floor rooms. A smoke alarm on the landing was activated, waking Mr Rana and Ms Simmonds, who had been asleep in their upstairs bedroom. Mr Rana attempted to smother the fire without success. The next fixed point in the chronology is the call made by Ms Simmonds to the emergency services. She was connected at about 02.20. The details of her call were received on a printer at the fire station at 02.20. Neighbours were alerted and enabled Ms Simmonds and Mr Rana to escape unhurt from their bedroom window down a ladder. 7. At 02.21:55 the appellant again called Becky using her iPhone. She sounded hysterical and was crying, saying that her house was on fire and screaming about her parents and her cat. That call lasted until 02.27.40. 8. A fire engine arrived at about 02.25am. As fire fighters prepared to enter the house, the Watch Manager in the charge of the team, John Pritchard, saw the appellant walking across the front garden of 30 Sunningdale, the adjoining property, and approaching the front door of her house. When challenged, the appellant told Mr Pritchard that she wanted to get the cat out of the house. At the scene she said to her mother “it’s him”. It was the appellant’s evidence that her boyfriend had threatened to do this one week before. The prosecution relied on these observations to show that the appellant knew that the fire was the result of arson. 9. The appellant went to her grandmother’s house nearby, where she was interviewed by a police officer. She told the officer that her former boyfriend had threatened the previous week “to do this”, and confirmed that assertion in a written statement. Later that morning, she was interviewed again and made a further written statement to the effect that she had split up with her boyfriend two months before. The threat had been made in a telephone call on the previous Tuesday, when he had stated that if the appellant did not complete forms relating to a traffic accident claim, he would kill her and her family. 10. The police seized various items of the appellant’s clothing and footwear but none of them showed any sign of fire damage, smoke or any trace of petrol. The petrol can from the garage was not checked for fingerprints. 11. The boyfriend was arrested later on 25 October. He denied that he had split up with the appellant and was able to demonstrate that he had spent the night with her at an hotel on 3 October 2014. The appellant’s parents did not approve of the relationship. The appellant subsequently admitted that she had lied to the police about the relationship having ended. She accepted that it was continuing on 24 October 2014. That evening she had spoken to her boyfriend on the telephone, falsely telling him she was at home and he had texted to say goodnight to her. 12. The appellant was arrested on 6 December 2014 and charged with the offences of which she was convicted in due course. She was interviewed twice and provided muddled or inconsistent accounts. The Crown’s case at trial 13. The Crown’s case was that the appellant came within 20 or 25 metres of the house at 02.15 when her iPhone connected with the router situated in a first-floor bedroom. She went in by the front door and straight through and into the back garden. Then she entered the garage and collected the petrol can kept there. She returned to the house, used the petrol on the stairs and set light to it. The evidence of the fire on the stairs showed that it was at its most intense a few stairs up and on the risers, rather than treads. That showed that the petrol was introduced from the bottom – effectively thrown in an upwards direction. Thereafter, she went back to the garden and garage to replace the petrol can in its correct position before leaving via the back garden and somehow making her way around to the front garden of number 30, where she then waited and watched before making the call at 02.21.55. In the meantime, the smoke alarm had been activated waking her parents, her father had attempted to put out the fire with a wet eiderdown and her mother had made the call to the emergency services. The fire must have been started a minute or two before 02.20. The appellant’s motive was to frame her boyfriend and get him out of her life. Her actions were accomplished whilst she was drunk and left no forensic trace. 14. The chronology we have set out was contained in agreed facts. 15. The Crown had a report from Martin Griffiths, a cell site expert. He was not called to give evidence. A substantial part of his report was devoted to ordinary cell site evidence which showed that, in the course of the telephone calls mentioned, the phone was connected to two different sites a long way from the house. That evidence did not provide any useful information. But he considered the significance of the iPhone connecting with the router at 02.15.04. He did not conduct any tests using the phone, router (or similar pieces of equipment) whether at the site or elsewhere. His report explained how a phone would connect automatically. He was asked to consider the coverage of the router beyond the house itself. Unfortunately, the manufacturer of the router (Netgear) had not disclosed the technical specification, but Virgin media had marketed the router as having a coverage distance of 30 metres. Mr Griffiths continued: “1.8.38 On this basis I have factored in the losses I would expect for the Wifi coverage over away from 29 Sunningdale and have given an assessment of what I believe the effective coverage distance would have been and therefore provided an estimate of where I believe a handset could have connected to the home router within 29 Sunningdale at 02.15.04 on 25 th October 2014. … 1.8.40 Map 3.4 shows an area where a handset could have been located outside 29 Sunningdale … 1.8.41 In my opinion the data is consistent with a handset being within a 20-25M radius (clear line of sight) from 29 Sunningdale … at the start of the session initiated at 02.15.04” 16. Mr Griffiths’ plan had two concentric circles around the router. One at 20 metres was marked “inner margin” and the other at 25 metres “outer margin”. The applicant’s then advisers made their own inquiries of an expert who confirmed Mr Griffiths’ assessment. As we have noted, the appellant’s own case (confirmed in her evidence) was that the phone regularly connected much further away. Nonetheless, there was an agreed fact put before the jury: “Map 3.4 shows the area where the handset could have been located to connect with the router in the bedroom. The highlighted segment [within 20 metres] shows the area most likely for the handset to have been located but it could have been located anywhere within a radius of 25 metres from the router’s location but not outside that radius.” It seems that Mr Griffiths’ evidence was interpreted as excluding the possibility that the phone could have connected more than 25 metres from the router. We do not read his evidence in that way. He used the language of “consistent with” having earlier said (1.8.8) that he was asked “to consider where the handset … could have been when attaching to this network.” His conclusion was based on no tests, nor even technical data relating to the router in question. It is true that in its marketing material Virgin media suggested a range of 30 metres but that could not be taken as a maximum. Rather, it might be thought, that such material would indicate a consistent reliable range on which customers could rely. 17. Given the timings and the appellant’s presence at the scene, the prosecution suggested that she had the opportunity to set the fire, and access to both accelerant and means of ignition. She admitted that she regularly went into the garage where there was petrol. She had been smoking so had a means of ignition and she knew that the front door to the house and the back door of the garage would both be unlocked. 18. Moreover, the appellant had lied to the police in two written statements in the context of attempting to blame her boyfriend. She had also incorrectly stated when interviewed that she had been dropped off by her house by a taxi and that she had only telephoned Becky on one occasion. It was clear, and not in fact controversial, that she was dropped at the corner of Waterloo Road by friends at or shortly before 02.00. She accepted that she had lied about ending the relationship but not about the threats her boyfriend had made. She had been drunk and confused at the time of the incident which, she said, accounted for the inaccuracies in her chronology. 19. The prosecution also adduced evidence that the appellant had made a false complaint to the police in August 2013 (which she later withdrew) that she had been robbed of her handbag and punched, when she had in fact been involved in a fight in a pub. The defence case at trial 20. The appellant’s case was that she had a normal loving relationship with her parents and she also loved her home and her cat. She had no conceivable reason to wish to put them in danger. 21. She gave evidence that she had been dropped at the junction of Waterloo Road and Crescent Road from where she had called Becky and smoked a cigarette, which took some time. Her parents did not know that she smoked and that was why she lingered after she was dropped off. She could not account for what she had been doing between 02.06 and 02.21, beyond smoking a cigarette, but she had not been setting fire to her house. She had walked past the mouth of Sunningdale, when she became aware of the fire from noise she heard. She did not remember seeing the fire engine arrive, although it would have driven along the road where she says she was standing or walking. Her evidence about the fire engine and its arrival was confused. She saw it outside the house, together with ladders. 22. Despite the agreed expert evidence, she did not accept that she was within 25 metres of house at 02.15.04. The appellant said that she had often been able to connect to her wireless signal from much further away, including the corner of Waterloo Road and at her grandmother’s house nearby. 23. The appellant said that at her grandmother’s house she had been asked by the police officer who might have done this, and the first person who came to mind was her boyfriend. She had lied to the police about her relationship with him because her family disliked him and she did not want her grandmother to hear that they were still together. Although no family member was present when she was further interviewed for another witness statement later that day, she had repeated the lie in case what she said to the police was reported back to her father. She later accepted that her relationship with her boyfriend had continued up to 24 October but repeated her account of his threat to kill her and her family the Tuesday before the fire, although she said she had not then taken it seriously. 24. She did not accept having lied about arriving in a taxi or making only one phone call, saying that she had had a lot to drink and was upset. But she did admit having lied to the police in claiming that she had been robbed in August 2013. She denied she was prone to doing silly things when drunk and said that the August 2013 incident was an isolated mistake. The appellant agreed that she had seen nobody else around before the commotion surrounding the fire but that it would have been possible for someone to leave by the back garden and over a field. 25. The appellant was convicted of both counts by unanimous verdict of the jury. The fresh evidence 26. The appellant obtained a report from Gregory Robinson, a cell site engineer and experienced expert witness. He and Mr Griffiths have exchanged a series of reports and gave oral evidence before us. Mr Robinson does not dispute Mr Griffith’s evidence that the appellant’s iPhone connected to the Virgin router at the house at 02:15:04 on 25 October 2014, but is critical of the untested assumption that the range of the router was no more than 20-25 metres. Mr Robinson conducted his own tests from his commercial premises with the identical model of router (the actual router no longer being available, apparently having been disposed of by the insurance company) but a different model mobile phone. His tests produced a “reasonably solid service” up to 72 metres from the router and several areas up to 160m away where the test handset logged onto the network and exchanged data. 27. Ms Arshad, who has appeared today for the appellant, but did not appear at trial, submits that Mr Robinson’s evidence satisfies the requirements of section 23 of the Criminal Appeals Act 1968 (as amended) in that (a) it is capable of belief (b) it may afford a ground for allowing the Applicant’s appeal (c) it would have been admissible at trial on the question in issue and (d) there is a reasonable explanation for the failure to adduce it. Mr Hamer for the prosecution does not suggest otherwise. 28. In further exchanges of reports, Mr Griffiths accepted certain of Mr Robinson’s criticism of his original evidence, but voiced his own concerns about Mr Robinson’s methodology. He suggested that the use of a different handset in a different environment calls into question whether Mr Robinson’s results properly reflect what would have been the position on 25 October 2014 in Sunningdale. In turn, Mr Griffiths has now undertaken his own practical tests. Albeit in a different urban area, they have confirmed that the range of the router is considerably more than the 20 to 25 metres he had previously indicated. He found that a phone connected at up to 45 metres but did not do so at 50. He therefore went no further. Mr Robinson’s tests, conducted from his office in a more open area, not only showed connection at up to 160 metres but also that the distance from the router is not the determining factor whether there is a connection. He walked a convoluted route in the vicinity of the router. There was no connection in many places close by and a good connection at considerable distances. 29. The experts are agreed that the record in the handset at 02.15.04 does not show when the appellant walked into range of the router in her house. That is because the system keeps a record only of the last connection made. It does not keep a record of earlier connections, nor does it make a record of the length of the connection. The fact that there was a connection at 02.15 does not preclude the possibility of an earlier connection at any time during the period from about 02.00 when the appellant was dropped off at the corner. 30. That Mr Griffiths was able to make a connection up to 45 metres from the router does not provide the outer limit of connectivity, as Mr Robinson’s tests demonstrated and as Mr Griffiths agreed. The result is that the connection between the home router and the appellant’s iPhone at 02.15.04 could have occurred at any point between the corner of Waterloo Road and Crescent Road and the appellant’s house. The distances involved were not great. It would take only a minute or two to walk from the corner to the house. But the prosecution case required the appellant to accomplish a good deal in the relatively small time frame between 02.15, when her phone last connected to the router and 02.20 when the results of the 999 call were sent through to the fire station. If, rather than covering 20 to 25 metres before entering the house, the appellant had to walk two or three times that distance the timing became more difficult. Additionally, the prosecution relied upon her insistence that the phone could connect at some distance from the home as another lie. The submissions 31. Ms Arshad submits that the evidence of the appellant’s close proximity to the house at 02.15.04 was at the heart of the prosecution case and was relied upon not only to place her in the house when the fire was started but also as a significant attack upon her credibility. The conviction is unsafe. 32. Mr Hamer accepts that the expert evidence “was an important component of the prosecution case” in what was a circumstantial but strong case. He submits that the conviction is safe having regard to the other evidence. He relies upon a combination of the following features: • The availability of petrol in the garage; • The appellant’s knowledge that both the front door of the house and the back door of the garage were unlocked; • The appellant’s possession of a means of ignition; • Her knowledge or belief that the fire had been set deliberately; • The lies told to the police about her relationship, and the earlier false allegation in 2013; • The fact that the second call to Becky was made at 02.21.55 so soon after the fire started. Discussion 33. At the end of his cross-examination, Mr Hamer put squarely to the appellant that she had set fire to the house on the spur of the moment whilst drunk with the aim of getting her boyfriend out of her life. The prosecution case was built on the appellant’s presence in the vicinity of the house and the fact that she had lied about various things, some of which she accepted. The appellant accepted that she had lied to the police about the relationship with her boyfriend having come to an end. She accepted in cross-examination that she had lied to him earlier that evening when she told him on the telephone that she was at home, rather than out with her friends. She explained that he disapproved of her going out with her friends. She accepted that she had made up the allegation in 2013. She maintained that her boyfriend had indeed threatened her and her family a week before the fire. She was cross-examined appropriately and hard over the issue arising from her iPhone connecting at 02.15.04 but maintained that her experience, despite the expert evidence, was that the phone connected and could be used from the corner at which she was dropped off. She gave detail of how the iPhone would connect, the signal strength and also that it did so at her grandmother’s house, both at well over 25 metres. She said that these experiences were shared by her mother. That was in answer to questions which included “couldn’t have been beyond 25 metres; you can’t challenge that can you?” In the end, Mr Hamer said: “Well, I’m simply putting to you that according to the evidence that’s just not possible.” To which the appellant replied: “Yeah, I can’t argue with that but I’m just saying what my opinion is.” 34. Much of the appellant’s evidence was confused, indeed contradictory. For example, she said in her evidence in chief that her boyfriend, who lived 10 minutes’ walk away, knew that the doors were often unlocked, then agreed in cross-examination that only she knew. She was cross-examined on the detail of the statements she had made to the police, which were inconsistent on matters such as when she first became aware of the fire engines and precisely where she was at the that time. She was unclear whether the fire brigade had arrived before she called Becky at 02.21.55 (as we had seen they had not). She gave unclear evidence about where she was when she made that call and also about what she did thereafter. The appellant had agreed with Mr Hamer that she was nearer paralytic than sober and the evidence of Becky was that she was hysterical during the second phone call. 35. In his summing up, the recorder reminded the jury about the uncontroversial evidence of the appellant’s parents that the family was a close, loving one with nothing to foreshadow behaviour of the sort alleged on the night in question. The appellant was also devoted to her cat, which was rescued by the fire brigade. Some of those with whom the appellant had spent the evening gave evidence of her demeanour. They explained she was quite drunk but not legless. She had been in a good mood all evening and was fine when she was dropped off at about 02.00. There was nothing in her first three-minute call to Becky at 02.03 to cause any concern. She was distraught when she made the second call at 02.21. He reminded the jury that proof of a motive is not a necessary ingredient of an offence, but also that the prosecution case, reflected in count 2, was that the motive was to get her boyfriend out of her life. The jury was reminded about the absence of forensic evidence linking the appellant to the fire. 36. The recorder had allowed the evidence of the earlier false allegation into evidence but directed the jury to be cautious about both that and the admitted lies about whether the relationship with the boyfriend was continuing. The case hinged on the chronology of events from 02.00, the appellant’s inability to account for what she doing after her first call to Becky (beyond smoking a cigarette) and her belief that the fire was non-accidental. 37. In that chronology the evidence that the appellant was either in (or very close to) the house at 02.15.04 was, as Mr Hamer accepts, important. It was important because it contradicted the appellant’s account that she was still at the corner at that time. It was important because it was agreed expert evidence and it was important because it suggested that the appellant was lying about something at the heart of the events of the night, rather than unrelated matters. The recorder, whilst reminding the jury that the evidence about 25 metres was agreed, also directed the jury to consider her account that the expert evidence must be wrong. 38. We now know that the expert evidence was wrong and that the appellant’s account on that aspect of the case was credible. Yet in a prosecution which relied so heavily on her admitted and alleged lies, we consider that this expert evidence was a powerful and damning part of the Crown’s case. We accept that, even in the absence of this evidence, there was a case to answer. Our task is not to speculate about what the jury might have done if the agreed evidence had not been before them, but rather to ask ourselves whether, in the light of the fresh evidence, the conviction remains safe, or is unsafe: Section 2 of the Criminal Appeal Act 1968. 39. We took time to consider our judgment at the conclusion of the hearing because we wished to re-read the evidence and summing up to enable that question to be answered. The prosecution case rested upon the premise that the appellant’s evidence that her boyfriend had threatened violence was a pretence; there was no doubt that he could be excluded as responsible. It would be too much of a coincidence for him to have been in the vicinity unseen at the same time as the appellant was dropped off and made her way home. 40. We have noted that there was no forensic connection between the appellant and either petrol or fire, or the petrol can. The timing postulated by the prosecution required the appellant to accomplish a good deal whilst drunk in a very short time after her phone connected to the wifi. The prosecution case required her to have gone from being entirely equable, through having fixed upon the plan to set fire to her house and executed it in less than 15 minutes, whilst for much of that time she was smoking a cigarette. It also suggests that her distress in the second call to Becky may well have been contrived. We accept all that is entirely possible. Not without some hesitation, we have concluded that the fresh evidence, undermining as it does an important part of the prosecution case both on timing and also the potency of the appellant’s lies, renders the conviction unsafe. In the circumstances we allow the appeal and quash the convictions.

```yaml citation: '[2018] EWCA Crim 725' date: '2018-04-11' judges: - LORD CHIEF JUSTICE OF ENGLAND AND WALES - THE HON MRS JUSTICE CARR DBE - THE HON MR JUSTICE PHILLIPS ```

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: 2007/5133/A6 Neutral Citation Number: [2007] EWCA Crim 3426 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 19 December 2007 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE LATHAM) MR JUSTICE COOKE MR JUSTICE CRANSTON - - - - - - - - - - - - - - - R E G I N A v KASRA ROSTAMKHANY - - - - - - - - - - - - - - - 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 P Stage appeared on behalf of the Appellant Mr R Brown appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE CRANSTON: In this case the applicant pleaded guilty to one count of possession or control of a false document with the intention of using it to establish a registrable fact. On 8th August 2007 he was sentenced by His Honour Judge Anthony at Lewes Crown Court to eight months' imprisonment. The offence is an offence under section 25(1) of the Identity Cards Act 2006 . The Registrar has referred the case to this court today. 2. The facts in outline are these. Early one morning in April 2007 the applicant arrived at Gatwick Airport on a flight from Cyprus. He handed over a false Italian passport in the name of someone else. The passport was subsequently found to have been a stolen blank document. On the arrival of an interpreter he gave his name as Kasra Rostamkhany and his date of birth as 19th July 1986. He said he was an Iranian national. At this point he claimed asylum. When interviewed, he said that he had been in fear of his life. An uncle had paid an agent to get him to Europe and to claim asylum. He left Iran on 12th April, travelled by horse to Turkey where he stayed three or four days, before flying to Cyprus. The applicant said he stayed in Cyprus for eight to nine days. The agent then put him on a flight to the United Kingdom and gave him this false Italian passport. He used the passport to check in knowing it was false. He said on his account that he knew no one in the United Kingdom, but that his intention had been to find an immigration officer and to claim asylum on arrival. We are informed today that he has now been given leave to remain. 3. The basis of his plea, which is somewhat elaborate, is that he had pleaded guilty only because of the difference between the Status of Refugees Convention and United Kingdom domestic law. He would not be guilty had the United Kingdom properly honoured its international treaty obligations in its domestic legislation. The basis of plea was also that the applicant, a man of previous good character, had suffered detriment by reason of the failure of the United Kingdom to adhere to its Convention obligations. 4. In his sentencing remarks the learned judge said this: "... people who use false passports must expect prison sentences. In these days when there is so much concern about identity theft, and security is a major concern, particularly at airports and on aircraft, the use of a false passport is a very serious matter". However, the learned judge also said that the material placed before the court suggested that the degree to which the applicant should be held at fault was less than in many cases. If he had simply claimed asylum and not produced a passport it would be less serious still but, said the learned judge, the applicant had attempted at first to pass himself off as holding a genuine Italian passport. The sentence imposed was shorter than would normally be the case. His detention for immigration purposes was in effect dual detention. Whatever sentence was imposed he would remain in custody until his asylum application was processed. There was no recommendation for deportation. 5. The offence, as we have said, is under the Identity Cards Act of 2006. Under section 25 of that Act it is an offence for a person with the requisite intention to have in his possession or under his control inter alia an identity document that is false and that he knows or believes to be false. Subsection (2) of that section says that the requisite intention for the purposes of subsection (1) includes the intention of using the document for establishing registrable facts about himself. In this case, of course, the registrable fact was his identity. The offence is punishable by imprisonment for a term not exceeding 10 years. Section 30 of the Act importantly adds the possession of false documents offence, that is section 25 , to section 31(3) of the Immigration and Asylum Act 1999 , which gives a specific defence for refugees with false documents. Under section 31 of that Act it is a defence for a refugee charged with an offence to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened, he presents himself without delay, shows good cause for his illegal entry and makes a claim for asylum as soon as reasonably practical after his arrival in the United Kingdom. Importantly subsection (2) of that section says that if in coming from a country where his life or freedom was threatened the refugee stops in another country, the defence only applies if he shows that he could not reasonably have expected to be given protection in that other country. That in brief outline is United Kingdom law. 6. The applicant says that in this respect the United Kingdom is in breach of its obligations under Article 31 of the Status of Refugees Convention. Broadly stated, that Article provides that contracting states such as the United Kingdom shall not impose penalties on account of illegal entry or presence in respect of refugees who come directly from the territory where their life or freedom is threatened, provided they present themselves without delay and show good cause for their illegal entry or presence. In R (on the application of Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin) it was said that in an attempt to prevent forum shopping section 31 of the 1999 Act is narrower in scope than Article 31 of the Convention. However, the court in that case held that the language of section 31 is the law which the courts must apply and there is no room to apply Article 31. But if the courts are bound to apply the provisions of United kingdom legislation, Mr Stage on behalf of the applicant says that they must still have regard to the Convention in sentencing those convicted of offences under the Act. One limb of his argument is that there is a legitimate expectation amongst those such as the applicant about the application by the United Kingdom as a contracting state of the Convention. In our view that cannot be accepted either in the light of Pepushi itself, see paragraph 37, or the reality that there can be no legitimate expectation that the United Kingdom authorities will not give full force to the provisions of United Kingdom law as laid down by Parliament. 7. Consequently, the matter becomes simply one of sentencing in this type of case. The principles are four-fold. First, custody should only be imposed unless the court is of the opinion that the offence is so serious that neither a fine or community sentence can be justified. Secondly, using false identity documents with the requisite intention in an attempt to gain entry into the United Kingdom will in normal circumstances invariably be serious enough to justify a custodial sentence: R v Kolawole (2005) 2 Cr.App.R (S) 14. Thirdly, that genuine refugees may arrive in the United Kingdom using false documents, so a responsible compromise has to be maintained between control of entry and arrangements affecting the stark realities facing them: see R v Mohammed (Farik Said) [2001] EWCA Crim 2332 , paragraph 21. Fourthly, that the sentencing court will, as best it can, reflect the degree of a defendant's criminality in the sentence imposed. 8. That last principle, the degree of the defendant's criminality, was the point at issue in R v Wang [2005] 2 Cr.App.R (S) 79. It is important in considering that case, however, to recognise that that was a case under section 2 of the Asylum and Immigration (Treatment of Claimants Etc) Act 2004, which in essence deals with entering the United Kingdom without a passport. In relation to that offence, this court said that the defendant in that case had to be sentenced on the basis that she had possessed a passport but only for a very short period and not on the ground that she had destroyed immigration documents. The court also took into account the fact that she had pleaded guilty and her personal mitigation, such as her youth, and that she had an extant asylum claim. 9. In this case the applicant says that there are a number of strong points in terms of personal mitigation. First, it is said that this was a case de minimus - less serious than in many other cases. The applicant says that he only presented the false passport when asked. He did not speak English and did not know what else to do and only wanted to collect his luggage before embarking on the claim for asylum. Secondly, it is said that ultimately there was no dispute about identity because there were many other documents which verified his true identity. Thirdly, it is said that he is a young man of good character in an unfamiliar country and away from his family and the fact that he came to the United Kingdom via Cyprus rather than Turkey makes the offence no more morally reprehensible. 10. In our view the learned judge took all these matters into account. As he said, the applicant had not simply claimed asylum but had attempted to pass himself off as holding a genuine Italian passport. Taking into account all his personal mitigation, the learned judge was able to pass a sentence which, as he said, was less than that which ordinarily would apply in this sort of case. In our view his approach cannot be faulted and on that basis we dismiss the appeal. 11. MR BROWN: My Lord, I am instructed to apply for costs against the appellant. 12. MR STAGE: My Lord the situation is that he has no means in this country at all. He is living really on charity at the moment. 13. THE VICE PRESIDENT: We make no order in relation to costs.

```yaml citation: '[2007] EWCA Crim 3426' date: '2007-12-19' judges: - (LORD JUSTICE LATHAM) - MR JUSTICE COOKE - MR JUSTICE CRANSTON ```

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: [2007] EWCA Crim 680 Case No: A8/2006/4622 , A6/2006/2831 A2/ 2006/4561, A2/2006/4503 A8/2006/2436 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/03/2007 Before : LORD JUSTICE LATHAM MR JUSTICE FORBES and MR JUSTICE TUGENDHAT - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - ‘C’ ANTHONY MICHAEL BARTLEY DANNY BALDREY ROBERT WILLIAM PRICE WAYNE MALCOLM SPENCER BROAD Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - STEVEN KOVATS appeared on behalf of the Secretary of State for the Home Department LAUREEN FLEISCHMANN appeared on behalf of the Crown in All the Cases ANTHONY J MORRIS appeared on behalf of the Applicant Bartley JAMAS HODIVALA appeared on behalf of the Applicant Baldrey NICHOLA BLEANEY appeared on behalf of the Applicant Price TIMOTHY SHORTER appeared on behalf of the Applicant “C” Hearing dates : 24 th January 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham: 1. These cases have been listed together so that this court can consider, once again, practical difficulties presented to judges considering imposing extended sentences under both the Criminal Justice Act 2003 , and its predecessor regime introduced by section 58 of the Crime & Disorder Act 1998 and ultimately set out in section 86 of the Criminal Powers of Courts (Sentencing) Act 2000. The latter provisions remain operative in relation to offences committed after the 29 th September 1998 and before the 4 th April 2005. They remain relevant because of the significant number of historic sexual offences which come before the courts. These provisions were in turn the successors to section 44 of the Criminal Justice Act 1991 which provided a very limited power to extend the licence period in sexual cases to the end of the nominal sentence. 2. The provisions of the 1998 and the 2000 Acts simply grafted on to the ordinary operation of release and licence provisions a power in relation to sexual and violent offences to extend the licence period beyond the end of the nominal sentence period. Sections 227 and 228 of the 2003 Act, however create a new form of extended sentence with different criteria relating, in particular, to the date of release from custody. 3. The particular problems which these cases exemplify relate to the power of the court to order consecutive sentences, either consecutive extended sentences, or a mix of extended and ordinary determinate sentences. This court has commented on numerous occasions in the past on the extraordinary complexity of the provisions in question. As a result it has consistently advised sentencing courts that in relation to offences committed before April 2005, it is not good practice to impose consecutive extended sentences ( R –v- Nelson [200] 1 Cr App R(S) 565 [2001] EWCA Crim 2264 ) or consecutive sentences including an extended sentence (See R –v- Cridge [2000] 2Cr App(R) 477 and R –v- Pepper [2005] EWCA Crim 1181 ) 4. In R –v- Lang [2006] 1WLR 2509 , [2005] EWCA Crim 2864 ) at paragraph 20, the Vice President suggested that the same principle should be applied to extended sentences imposed under the 2003 Act. This has been echoed in R –v- Alam and Watson [2006] EWCA Crim 1680 . And in R –v- O’Brien et al [2006] EWCA Crim 1741 , Hooper LJ cited Lang as some support for the court’s conclusion in that case that consecutive indeterminate sentences should not be imposed, nor should indeterminate sentences be made consecutive to a determinate sentence, or an extended sentence. 5. However, in R –v- Brown and Butterworth [2006] EWCA Crim 1996 , this court, presided over by Gage LJ, gave more detailed consideration to the problem. Before setting out the court’s conclusions, we should say something further about the differences between extended sentences under the 1998 and 2000 Acts, and extended sentences under the 2003 Act. 6. We have already given a general description of the two forms of extended sentence. But the important point is that extended sentences under the 2003 Act are clearly intended to be a new species of sentence. Sections 227 and 228 of the 2003 Act make it plain that the sentence is a single sentence of imprisonment comprising the aggregate of the custodial term, and the extension period: see section 227(2) and section 228 (2). The custodial term, pursuant to section 227(3) is the term of imprisonment appropriate for the offence determined in accordance with the provisions of section 153 of the 2003 Act, namely the shortest term that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it. In other words, it is the appropriate determinate sentence if the court had not been required by sections 227 or 228 to impose an extended sentence. 7. The provisions for release on licence of a prisoner serving an extended sentence under sections 227 or 228 are quite different from the provisions for release of prisoners serving determinate sentences or extended sentences under the 1998 and 2000 Acts, and are contained in section 247 of the 2003 Act. By sub-sections (2) and (4), the Secretary of State must release the prisoner if he has served one half of the appropriate custodial period and the Parole Board has directed his release on the grounds under sub-section (3) that it is no longer necessary for the protection of the public that he should be confined; alternatively, the prisoner must be released if he has served the whole of the appropriate custodial period. It follows that the period which the prisoner serving an extended sentence imposed under the 2003 Act will spend in custody will depend on whether and when the Parole Board has directed his release. 8. In this context it is also important to bear in mind the provisions of section 264 of the 2003 Act, which deal with the treatment of consecutive sentences where such sentences are imposed on the same occasion. Sub-section (2) provides that the period before which the Secretary of State is not required to release a prisoner is the aggregate of the length of custodial periods ordered to be served consecutively; by sub-section (6)(a)(i) this means the appropriate custodial term in relation to an extended sentence under section 227 or 228 and one half, in most cases, of the term in determinate sentences. Further, by sub-section (3) the licence period is the period after release until the time at which he would have served a term equal in length to the aggregate length of the terms of imprisonment but for his release. As far as extended sentences are concerned, as we have said above, the important point is that the length of the sentence of imprisonment (as opposed to the “custodial term”) is the combined period of the custodial term and the extended licence period. 9. Returning to Brown & Butterworth , the court concluded as follows: “23. It will be apparent from the above that whereas an offender, the subject of an extended sentence, may not be released after serving half of the custodial term until the Parole Board is satisfied it is no longer necessary for the protection of the public to confine him, an offender serving a fixed term or determinate custodial sentence of 12 months or more will be released after serving half of his sentence, see Section 244(3)(a). It follows that if a consecutive determinate sentence is passed to an extended sentence it may be difficult to determine when the custodial element of the extended term ends and the determinate sentence begins. 24. In our judgment these difficulties do not arise if an extended sentence is made consecutive to a determinate sentence. Mr Close, on behalf of Brown, argued that section 264(2) may be interpreted as permitting the Secretary of State to refrain from releasing an offender where a consecutive extended sentence is passed and until such time as the aggregate length of the determinate sentence, and the custodial term of the extended sentence, has expired. We do not believe that this is so. It seems to us that this will be inconsistent with the clear terms of section 247(2).... ....... 26. At the outset we feel it may be helpful to make some short points of general application. First we conclude that the court has the power to pass consecutive extended sentences. We have no doubt that the court has power to pass an extended sentence consecutive to a determinate custodial sentence. It may very well be that the court has power to pass a determinate sentence consecutive to an extended sentence. As Mr Bassano points out, nothing in the statutory provisions seems to forbid any of these combinations of sentence and section 264 would appear to contemplate such sentences. 27. However, when the release provisions of section 247 are factored in difficulties may well arise in respect of the calculation of dates for release and the start of the period on licence. In those circumstances in our judgment the following points should be observed. First, consecutive extended sentences appear to provide considerable problems in determining the application of the appropriate licence period once the custodial element has been served. Secondly, similar problems will arise if a determinate sentence is made consecutive to an extended sentence. Accordingly we take the view that consecutive extended sentences and a determinate sentence consecutive to an extended sentence are, in general terms, not appropriate and should be avoided. However, we see no reason to suggest that such problems will arise if the extended sentence is made consecutive to the determinate sentences. 28. There is no reason to suppose that concurrent extended sentences raise any of the above problems, nor that an extended sentence concurrent with a determinate sentence will cause insuperable difficulties. However, in the latter case, a concurrent determinate sentence, longer than the custodial element of an extended sentence, may well have the effect of the extension being subsumed in the longer determinate sentence. It is therefore sensible where possible to avoid such combination of sentences since it would defeat the purpose of the mandatory extended sentence. 29. Finally nothing that we have said is in anyway intended to dilute the guidance given by the court in Lang , and R –v-S [2005] EWCA Crim 3616 . We observe that as these appeals demonstrate extended sentences in combination with other offences can pose difficult sentencing problems and advocates should be alert to assist judges navigate their way through the complex statutory provisions.” 10. The cases before us provide an the opportunity to pull together the threads of the statutory provisions and these authorities, in particular Brown and Butterworth, with the considerable assistance of Mr Kovats on behalf of the Home Office, and indeed all counsel who have appeared before us. It seems to us that, in the first instance, we should not disturb the consistent advice that has been given in relation to the provisions of the 1998 and 2000 Acts, as exemplified in particular in Nelson and Pepper . Where these provisions apply a court should not, as a matter of good practice, and save in exceptional circumstances, impose consecutive extended sentences, or consecutive sentences of any other nature with an extended sentence. But there is nothing unlawful in doing so: and in some cases it may be necessary. We are satisfied by the material provided by Mr Kovats that such consecutive sentences under the 1998 and 2000 Acts do not, in themselves, impose insuperable difficulties to those seeking to administer them. Where there are consecutive extended sentences, under the 1998 and 2000 Acts, the practice is as follows: i) The custodial term of the extended sentence and the entirety of the terms of ordinary determinate sentences are aggregated into a single term: section 44(2) and 51(2) of the Criminal Justice Act 1991 . ii) If that aggregate single term is four years or more, the offender is eligible to apply for release on parole licence after serving one half of that single term and will be released on licence at the end of the two thirds point in any event; sections 32(5) and 35 of the Criminal Justice Act 1991 . iii) If the aggregate single term is less than four years release is automatic after one half of the single term: section 33(1) of the Criminal Justice Act 1991 . iv) The offender then remains on ordinary licence until three quarters of the aggregate single term would have been served: section 37(1) of the Criminal Justice Act 1981. v) The extension period then takes effect: section 44(3) of the Criminal Justice Act 1991 . 11. But the advent of the 2003 Act, however, presents a number of problems. As we have pointed out, and as has been pointed out in paragraph 23 of Brown & Butterworth, the release provisions relating to prisoners serving determinate and extended sentences are different. As far as the latter are concerned, release after one half of the custodial term is not automatic, but dependent upon a direction from the Parole Board. Where there are concurrent sentences, there is no difficulty. Release will have to await the direction from the Parole Board, or the serving of the custodial term, whichever is the earliest of those events. If an extended sentence is ordered to be served consecutively to a determinate sentence, the logical solution would be that the prisoner would be released when he has served one half of the determinate term, and then such part of the custodial term of the extended sentence as is required by section 247(2) and (4). The prisoner is then on licence until the end of the custodial term (if released early) plus one half of the determinate sentence plus the extension period. As we understand it, this is the practice adopted by the Secretary of State, and would accord with the logic of the extended sentence provisions. 12. But, as was noted in argument in Brown and Butterworth, this sensible and logical approach would appear to be in conflict with the provisions of section 264(2) of the 2003 Act which provides: “Nothing in this Chapter (which includes section 247(2)) requires the Secretary of State to release the offender on licence until he has served a period equal in length to the aggregate of the length of the custodial periods in relation to each of the terms of imprisonment.” 13. As we have already said, “custodial period” in the case of an extended sentence is the “custodial term”, not the period spent in custody. Prima facie therefore, this sub-section exempts the Secretary of State from releasing a prisoner sentenced to an extended sentence consecutive to a determinate sentence until the completion of the whole of the custodial term (i.e. one half of the determinate sentence plus the custodial term of the extended sentence).. 14. In paragraph 24 of Brown & Butterworth , the court considered that that would be inconsistent with the express provisions of section 247(2). But because the aggregation provisions in this sub-section are expressed so as to exempt the Secretary of State from the requirement to release earlier, we are not sure that the concern expressed by counsel in that case can be lightly dismissed. Mr Kovats, on behalf of the Secretary of State, has, however, expressly confirmed that effect will be given to section 247(2) by the Secretary of State whatever the strict wording of section 264(2). We would therefore expect that, in practice, the sensible and logical method of dealing with consecutive determinate and extended sentences will be followed. As section 264(2) is expressed in discretionary terms, the Secretary of State would have to justify any departure from that practice. 15. We would expect that the same principle will be adopted in the case of consecutive extended sentences. Again the logical approach would be to aggregate the two custodial terms and permit early release, on the direction of the Parole Board, after one half of the custodial term has been served. The period of licence as a result of the provisions of section 261(3) will be such period as expires at the end of the aggregate of the terms of imprisonment, that is the aggregate of the custodial terms and the aggregate of the extended terms. Once again we understand from Mr Kovats that that is the way that the provisions are operated in practice. This would appear to be wholly in accordance with the logic and policy of the statutory provisions, even though, once again, section 264(2), if strictly applied, would appear to permit the Secretary of State to debar release until after the whole of the aggregated custody period have been served.. 16. More difficult questions, however, arise if a determinate sentence is expressed to be consecutive to an extended sentence. The custodial term of the extended sentence would again, strictly, have to be served first, before the custodial period of the determinate sentence. The consequence would be that commencement of the determinate sentence would have to await the decision of the Parole Board to direct release under section 247(2), although there will be no question of the prisoner’s release until he has served the custodial period of the determinate sentence. Mr Kovats did not shrink from suggesting that that was the position. The consequence would be to require any prisoner subject to an extended sentence who wished to obtain early release from custody to make his application at a time when he might not, instinctively, consider it appropriate i.e. during the first part of the period spent in custody. In our view the only proper approach would be to treat, in this respect, the custodial period in the same way whichever sentence is expressed to be consecutive to the other i.e. to treat the final part of the period in custody as the custodial term of the extended sentence. That would be consistent with the concept of aggregation, and can be achieved by the exercise of the Secretary of State’s discretion. There should be no difficulty. It equates the approach in both scenarios, and meets the statutory objective. If the Parole Board is asked to consider directing release after the prisoner has served one half of the determinate sentence, plus one half of the custodial term of the extended sentence he is more likely to meet the criteria for early release. The Secretary of State would, therefore, once again, have to justify any exercise of discretion which departed from that practice. 17. But the fact that these practical solutions are not mandated by the 2003 Act underlines why consecutive sentences under the 2003 Act should be approached with great caution. Nonetheless, as we have said, they can be valuable tools in the sentencer’s armoury. One particular example is where a defendant is charged with repeated affrays. In such a case, even though an extended sentence may be mandated, the sentencer has to work within the confines of a maximum sentence of three years imprisonment. In such circumstances, consecutive sentences may be the only way to impose an appropriate custodial punishment and provide for a realistic extended period on licence. 18. Having explained how the sentences can be made to work, and explained the pitfalls, we would not expect this court to interfere with consecutive sentence orders unless the appellant can establish that an insuperable difficulty exists in giving effect to such an order in his case. 19. In summary, our conclusions as to the practice to be adopted in dealing with consecutive and concurrent sentences in this complex area of sentencing are as follows: a. There is nothing unlawful about the imposition of a concurrent or consecutive sentence within either regimes relating to extended sentences, and indeed, as explained by Hooper LJ in R –v- O’Brien et al [2006] EWCA Crim 1741 , where sentences of life imprisonment or imprisonment for public protection are imposed under chapter 5. This court will not interfere where extended or indeterminate sentences were justified, unless the practical result is manifestly excessive, or for some reason gives rise to real problems of administration. b. Nonetheless, judges should try to avoid consecutive sentences if that is at all possible and adjust the custodial term or minimum period within concurrent sentences to reflect the overall criminality if that is possible within other sentencing constraints. c. If consecutive sentences are considered appropriate, as in the example that we have already given, or necessary, if one or more of those sentences are determinate sentences, the determinate sentences should be imposed first, and the extended sentence or sentences expressed to be consecutive. d. In shaping the overall sentence, judges should remember that there is no obligation for the sentences to be expressed in historical date order. There is nothing wrong with stating that the sentence for the first offence in point of time should be served consecutively to a sentence or sentences imposed for any later offence or offences. 20. We then turn to the individual cases: C 21. On the 17 th January 2005 in the Crown Court at Bournemouth, the appellant pleaded guilty to four offences of indecent assault, three offences of indecency with a child and one offence of taking an indecent photograph of a child. On the 10 th March 2005 at the same court, he pleaded guilty to 16 counts of making an indecent photograph of a child. On the 19 th April 2005, he was sentenced to an extended sentence of eight years under the 2000 Act , comprising a four year custodial term and an extension period of four years, for all the offences to which he pleaded guilty on the 17 th January 2005. For eleven of the offences to which he pleaded guilty on the 10 th March 2005 he was sentenced to two years imprisonment concurrent with each other but to be served consecutively to the extended sentence, for four of those offences he was sentenced to 12 months to be served concurrent with the two years determinate sentence; and for the last of those offences; he was sentenced to six months imprisonment again to be served concurrently both with the sentence of 12 months imprisonment and the sentence of 2 years imprisonment. 22. Five hundred and ninety-six other offences of making indecent images of a child were taken into consideration. 23. His application for an extension of time of one year four months in which to apply for leave to appeal against sentence and the application for leave to appeal against sentence have been referred to the full court by the Registrar. We grant the extension of time and we give leave to appeal. We do so because there are a number of problems arising out of the sentences imposed in this case. But before we turn to those, we should set out, shortly, the facts. 24. On the 6 th August 2004 as a result of information that the appellant’s credit card had been used to access child pornography on the internet, a search warrant was executed on the appellant’s home and items including a camcorder and a tape was seized. The tape showed the appellant’s natural daughter then 7 to 8 years old wearing make-up and pair of adult sized cami knickers sitting on a sofa rubbing her genital area first over the material and then apparently under the material; the camera focused on the genital area. The child then left the room and returned wearing an adult black slip. She once again rubbed her genital area over the material, got up and approached the applicant and took hold of his erect penis and masturbated him for several second. She left the room and returned, once again rubbing her genital area. The appellant was then heard to say “Do you want to suck it for the camera. Do you want to suck it and put it in your mouth to the camera.” The child then walked towards the appellant and is seen putting her head towards his groin area and after a few seconds raising her head. The appellant then said “Sophia, Sophia do that again”. She walked back towards him took hold of his erect penis and again appeared to lean forward bringing her head close to his groin. 25. As a result, the appellant’s daughter was interviewed. She said that between the ages of 6 and 11 the appellant would regularly rub his penis against her stomach or vagina and ejaculate. The indictment charged one specimen count for each year. A further count related to an occasion when the appellant required her to masturbate him when she was six years old. 26. As far as the offences in the second indictment were concerned, one of the images was at grade 5, ten at grade 4, 4 at grade 3 and 1 at grade 1. Including the other offences to be taken into consideration there were 38 images at grades 4 and 5. 27. The appellant does not seek to appeal against the sentences imposed on the offences to which he pleaded guilty on the 17 th January 2005. There are, however, two substantial problems in relation to the sentences for those offences. First, although the transcript of the Judge’s sentencing remarks makes it quite plain that the sentences were as we have set them out above, the Crown Court for some reason has recorded the sentences as “an extended sentence of eight years comprising a custodial term of four years and an extension period of eight years”. Quite apart from the fact that that did not reflect the judges order, the total would appear to indicate a sentence of 12 years which exceeds the maximum of 10 years for indecent assault and indecency with a child at the time. Further, the sentence that was imposed by the judge for taking an indecent photograph of a child, that is the extended sentence of eight years, exceeds the maximum sentence for that offence at the time, which was 3 years imprisonment. There is in our view nothing wrong with the total extended sentence of eight years as stated by the judge. But the appeal must be allowed so as to amend the record to show that the sentence was an extended sentence of eight years, comprising a four year custodial term and an extension period of four years for all the offences save Court 6, taking indecent photographs of a child, for which there will be a sentence of 18 months imprisonment concurrent to the extended sentence. There is one further technicality, namely that two of the counts referred to the child’s age as under 16 years, whereas at the time the relevant age was 14 years. As the child was undoubtedly younger than fourteen years in any event, we do not propose to interfere with the sentence imposed on those counts. 28. However, it is submitted on behalf of the appellant, that as far as the sentences for making indecent photographs of a child to which he pleaded guilty on the 10 th March 2005 are concerned, the consecutive sentences were wrong in principle relying on Nelson and Pepper . Further, and in any event, it is submitted that the number of images at levels 4 and 5 do not justify a sentence of two years imprisonment in the light of the guidance of this court in the case of Oliver . With the latter submission we agree. The appropriate total sentence for the offences in the indictment to which he pleaded guilty on the 10 th March 2005 should be 12 months imprisonment. The sentences for the eleven counts to which he was sentenced to two years imprisonment will therefore be 12 months imprisonment. As to the four counts to which we was sentenced to 12 months imprisonment, that should be reduced to 9 months imprisonment, that again to be concurrent. We do not propose to interfere with the sentence of six months imprisonment imposed on the final count on that indictment. 29. As far as those sentences are concerned, for the reasons that we have given, we consider that there is no reason in principle why a consecutive sentence should not have been imposed; and we accordingly allow the appeal only to the extent we have indicated. Bartley 30. On the 17 th February 2006 at the Crown Court in Manchester, the applicant pleaded guilty to two counts of affray, and one count of perverting the course of justice. On the 11 th May 2006 he was sentenced as follows. As to the first offence of affray an extended sentence of 32 months pursuant to s. 227 of the 2003 Act made up of a custodial term of 20 months imprisonment and an extension period of 12 months: for perverting the course of justice he was sentenced to three months imprisonment concurrent: for the second offence of affray, he was sentenced to an extended sentence of 25 months pursuant to section 227 of the 2003 Act made up of a custodial term of 13 months and an extension period of 12 months to be served consecutively to the extended sentence imposed in relation to the first offence of for affray. The total sentence was an extended sentence of 57 months made up of a custodial term of 33 months and an extension period of two years. The judge further directed that 182 days spent on remand would account towards his sentence pursuant to section 240 of the 2003 Act. 31. His application to appeal against sentence was referred to the full court by the Registrar. 32. Both offences of affray involved disputes between him and Vicky McKenzie , with whom he was living. The first occurred in the early morning of the 30 th May 2005 when the police attended at Vicky McKenzie’s address. She was upset and one of her legs was bleeding. At first the appellant was abusive and refused to go outside to speak to the officers. He appeared then to change his mind; but as he bent down to put on one of his shoes, an officer saw that he had a kitchen knife in his pocket. The officer shouted at him to put the knife on the floor; but instead, the appellant pulled it out raised it above his head and shouted “Go on then fucking kill me I am ready”. He then ran at the officer shouting “Fucking come on then, lets go”. The officer fled from the house chased by the appellant who was brandishing the knife above his head. The appellant chased the officer to the police vehicle in which the complainant was sitting. The police officers drove off with the complainant. Other officers then arrived at the scene, but could find neither the appellant nor the knife. At the time the appellant was on bail for an earlier incident involving Vicky McKenzie in relation to which he was never charged. 33. Following that incident, the appellant and the complainant became reconciled the next day and arranged to stay the night together at a hotel. The police were called because there was a complaint of a disturbance in their hotel bedroom. When the police arrived, they could not gain access because the appellant had placed a chain on the bedroom door. He shouted that he had a hostage. So the police forced the door. Vicky McKenzie was sitting in a chair with the appellant behind her, holding a small black handled kitchen knife. The officer shouted to him to put the knife down. After two requests he agreed and held the knife in front of him; and it was then taken from him without difficulty. 34. At the time of his arrest he was found to be in possession of a bag of amphetamine. During his interview the drugs were placed on the table. The appellant grabbed the bag and swallowed some of the contents. This formed the subject matter of the count of perverting the course of justice. 35. As far as the affray at the hotel was concerned, the following written basis of plea was accepted by the prosecution: 1. It is accepted that as PC Barrett describes, upon his entry to the room he saw Anthony Bartley “He was standing behind a female who was seated in a chair, a female I now know to be Vicky McKenzie, Bartley had a knife in his right hand in front of McKenzie’s face approximately 9 to 12” away.” 2. That the knife was held out stretched for the officers to take which they did; 3. That the knife was not at any time used to indicate that he intended to harm anyone. 4. That he had shortly before the police came into the room taken the knife away from Vicky McKenzie who used it on occasions to self harm; and 5. That Vicky McKenzie admits in her video interview on the 4 th July 2005 at page 127 that she self harmed by cutting herself. 36. The appellant now 40 years of age had 23 previous court appearances. There were seven court appearance for offences against the person including four offences of assault occasioning actual bodily harm, and ten previous court appearances for public order offences, including six offences of affray. He had five previous court appearances for threatening behaviour and four previous court appearances for criminal damage. In 1992 he received a total sentence of 11 years and 6 months imprisonment in Greece for offences of theft, kidnapping, escape, possession of offensive weapons and prison mutiny. He was extradited from the United Kingdom to Greece having escaped from custody in Greece. The sentencing judge considered that the appellant met the criteria of dangerousness in section 229 of the 2003 Act. There is no appeal against that finding. What is said, however, on his behalf is that the judge erred in principle in imposing consecutive extended sentences, and that the total sentence was in any event manifestly excessive bearing in mind the basis of plea which the prosecution had accepted. 37. As we have already said, we do not consider that consecutive extend sentences are wrong in principle; and for repeat offences of affray they may well be appropriate. But in the present case, the basis of plea did not, in our view, justify a consecutive extended sentence of the length imposed by the judge in this case. In our view, this offending behaviour merited in total of extended sentence of three years. Because of the restriction on the length of the custodial term which has to be imposed in an extended sentence, we think that the right way of expressing the sentence is to impose an extended sentence of 36 months pursuant to section 227 of the 2003 Act made up of a custodial term of 24 months imprisonment and an extension period of 12 months for the first affray, that is Count 3 in the indictment. As far as the sentence for perverting the course of justice is concerned the sentence will remain the same. As far as the second affray is concerned, that is Count 8 in the Indictment, the sentence will remain the same, but will be served concurrently with the extended sentence imposed in respect of Count 3. To that extent the appeal is allowed. Baldry 38. On the 27 th February 2006 at the Crown Court in Chelmsford the appellant pleaded guilty to an offence of inflicting grievous bodily harm. On the 16 th June 2006 at the Crown Court at Basildon he pleaded guilty to an offence of unlawful wounding. On the 8 th August at the Crown Court at Chelmsford HHJ Hayward-Smith QC sentenced him to an extended sentence of 30 months detention pursuant to section 228 of the 2003 Act made up of a custodial term of 12 months detention and an extension period of 18 months for the offence of inflicting grievous bodily harm, and an extended sentence of 36 months pursuant to the same section made up of a custodial term of 18 months detention and an extension period of 18 months detention, to be served consecutively, for the unlawful wounding. The total sentence was an extended sentence of 66 months detention made up of a custodial term of 30 months detention and a extension period of 36 months. 39. He appeals against sentence by leave of the single judge. 40. As far as the first offence was concerned, this occurred on the 16 th June 2005. The 48 year old complainant was going home by train, when he was viciously assaulted by the appellant and another young man, for no apparent reason. The appellant punched him once to the face causing a fractured cheek bone and a black eye. The victim fell to the floor where there was further scuffling. The appellant was arrested on the 28 th June 2005. When interviewed, he declined to comment. On the 27 th August 2005, the second complainant Mr Bardo was walking home when he was confronted by the appellant and two others. The appellant for no reason punched him on the face several times. Mr Bardo fell to the ground where he was further punched by the appellant. He sustained several lacerations to his face and a broken lateral incisor tooth. The police came to the scene and found the appellant hiding in a bush. Once again he declined to make any comment in interview. 41. At the time the appellant was 18 years of age. He had, apart from one offence of threatening behaviour, no serious history of violence. However the pre-sentence report, which dealt only with the first offence, indicated that there was a high risk of the appellant re-offending. The judge came to the conclusion that, bearing in mind the nature of the two offences, and the fact that the second offence was committed whilst he was on bail for the first offence, there was a significant risk of his causing serious harm in the future. It was in those circumstances that he imposed the extended sentences. 42. It is submitted on his behalf that the judge erred in principle in imposing consecutive extended sentences. For the reasons that we have give, we reject that submission. More fundamentally counsel on his behalf has urged us to take the view that the criteria of dangerousness have not been met, on the basis that these two offences do not sufficiently establish a pattern of violence which could justify such a finding. We have considered the submission with care bearing in mind the appellant’s age, but, in our view, the judge was fully entitled to come to the conclusion that he did. This appeal is dismissed, Price 43. On the 27 th June 2006 at the Crown Court in Lincoln, the appellant was convicted of five counts of sexual assault on a child under thirteen and one count of inciting a child to engage in sexual activity. On the 7 th August 2006 he pleaded guilty to failing to surrender to bail. 44. On the 17 th August 2006 he was sentenced to two years imprisonment concurrent in relation to the five counts of sexual assault on a child under thirteen and an extended sentence of five and a half years under the 2000 Act made up of a custodial term of two and a half years and an extension period of three years concurrent to the determinate sentence of two years imprisonment. He was then sentenced to six months imprisonment concurrent for the Bail Act offence. Consequential orders were made under the Sexual Offences Act 2003 . He appeals against sentence by certificate of the trial judge in the following terms: “ Certified Point. What is the appropriate course to follow where D has committed a Bail Act offence for which the sentence ought to be consecutive but where an Extended Sentence is being imposed under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 for the main offence. And in the light of Pepper, Newton and Collins an extended sentence ought not to be imposed consecutively to a determinate sentence or vice versa? Note A similar problem will arise if an Extended Sentence is being imposed under CJA 2003” 45. The only point in the present case is that the judge, in order to avoid what he considered to be the prohibition on imposing a consecutive sentence for the bail offence, expressly increased the custodial term of the extended sentence by six months to reflect what he considered to be the appropriate sentence of imprisonment for the Bail Act offence. The single point is whether, in doing so, he erred in principle. In our view he did. For the reasons we have given, he was not precluded from imposing a consecutive sentence for the Bail Act offence. Whilst, in practical terms, this may make no difference where an extended sentence is imposed under the 2000 Act , nonetheless his record will show a custodial term for the sexual offence which is six months longer than the judge thought appropriate. And under the 2003 Act, if it had applied, a defendant would be significantly disadvantaged. The custodial term of his ordinary determinate sentence would be only three months. But if added to the custodial term of the extended sentence could be longer, depending upon if and when the Parole Board directed release. 46. The overall sentence in this case, however, was unimpeachable. In our judgment the right order is to allow the appeal, to the extent that the extended sentence will be one of five years made up of a custodial term of two years and an extension period of three years to be served concurrently to the two years imprisonment for the earlier offences. The six months imprisonment imposed for the Bail Act offence should be served consecutively to those other sentences. For the reasons that we have given this will not result in the appellant serving any greater sentence than that which has been imposed in the Crown Court. Broad 47. On the 1 st March 2006 in the Crown Court at St Albans, the applicant pleaded guilty on re-arraignment to a single count of sexual assault contrary to section 3 of the Sexual Offences Act 2003 . On the 10 th March 2006 having pleaded guilty before the Magistrate’s Court, the applicant was committed for sentence in respect of two offences of driving with excess alcohol. On the 21 st April 2006 in the Crown Court at St Albans he pleaded guilty on re-arraignment to a count in a further indictment of dangerous driving, and to offences of driving with excess alcohol, no insurance, no certificate and failing to stop. He was committed to the Crown Court under section 41 of the Criminal Justice Act 1988 . 48. The applicant was sentenced to an extended sentence of 6 years and 3 months imprisonment under the 2000 Act made up of a custodial term of 15 months and an extension period of five years. For the offences of driving with excess alcohol which were committed for sentence on the 4 th March 2006 he was sentenced in relation to the first, to two months imprisonment to be served consecutively to the extended sentence, and for the second, to three months imprisonment to be served consecutively to the extended sentence and consecutively to the first offence of driving with excess alcohol, and for the offence of dangerous driving he was sentenced to 7 months imprisonment to be served consecutively to all the previous sentences; and for the offence of driving with excess alcohol which had been committed under section 41 of the Criminal Justice Act he was sentenced to 4 months imprisonment, but that was to be served concurrently. The judge further activated a suspended sentence of 15 months imprisonment which had been imposed on the 27 th January 2005 for offences of possessing air-weapon ammunition and ordered it to be served consecutively to all the previous offences. He was further ordered to be returned to custody to serve the whole remaining period 139 days in respect of his sentence of imprisonment, the licence period for which had not expired when he committed the offences. The consequence was expressed as an extended sentence of 8 and a half years imprisonment comprising a total custodial term of 3 and a half years and an extension period of 5 years. 49. The applicant was not present or represented at the hearing before us. We consider that the sentences in this case require separate consideration. We accordingly give leave to appeal and grant a representation order for counsel. We further direct that the respondent be represented at the hearing of the appeal, and should be in a position to inform the court as to the way in which the prison service has interpreted the court’s order in this case.

```yaml citation: '[2007] EWCA Crim 680' date: '2007-03-22' judges: - LORD JUSTICE LATHAM - MR JUSTICE TUGENDHAT ```

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 1223 Case No: 201005665 A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19 April 2011 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE COOKE RECORDER OF CARDIFF - HIS HONOUR JUDGE NICHOLAS COOKE QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - R E G I N A v BENJAMIN ADAM BROWN - - - - - - - - - - - - - - - - - - - - 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 S Field appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE PITCHFORD: The Recorder of Cardiff will give the judgment of the court. 2. THE RECORDER OF CARDIFF: This is a case in which, by operation of the Sexual Offences (Amendment) Act 1992 , the anonymity of the two complainants in relation to the sexual offending concerned is protected. Accordingly, no reporting of this judgment shall identify those victims, whom we shall refer to as "J" and "D". 3. On 24 November 2008 at the Gloucester Crown Court, having earlier pleaded guilty, the applicant, Benjamin Adam Brown, was sentenced to three concurrent extended sentences in relation to three counts of sexual assault upon a child, J, contrary to section 9(1) of the Sexual Offences Act 2003 , the custodial term being specified at six and a half years and the extension period at three years. Concurrent terms of four and a half years' imprisonment for another offence contrary to section 9(1) of the Sexual Offences Act 2003 , two years' imprisonment for an offence of indecent assault contrary to section 15(1) of the Sexual Offences Act 1956 , two years' imprisonment for nine offences of making indecent images contrary to section 1(1) (a) of the Protection of Children Act 1978 , and six months' imprisonment for another two offences contrary to section 1(1) (a) of the Protection of Children Act 1978 were also passed. No separate penalty was imposed for a breach of bail. Seven days, which might have been allowed as credit off the sentences actually imposed pursuant to section 240 of the Criminal Justice Act 2003 , was not allowed so as to reflect a failure to surrender. 4. A Sexual Offences Prevention Order, to which we will refer in rather more detail later, was also made pursuant to section 104 of the Sexual Offences Act 2003 . The applicant now seeks to renew his application for leave to appeal against sentence following a refusal by the single judge. He also seeks an extension of time, delay having resulted from an initial negative advice in relation to appeal against sentence, and time taken in relation to the instruction of fresh representation. We should make it clear that we have looked at the merits of this case and have not determined it solely by reference to the rather long period of delay. 5. No criticism is made of the determinate sentences passed. The proposed challenge relates to the assessment of the applicant as dangerous, and the consequent imposition of extended sentences. 6. The relevant offending consisted of the long-term sexual abuse from the age of 13 of J, whom the applicant had been trusted to babysit. The applicant, putting it at its lowest, failed to prevent J from consuming alcohol. He also gave him money and gifts. He eventually encouraged him to film himself naked. The sexual activity included masturbation (on one occasion video recorded), oral sex and anal penetration. The applicant appears to have at least to some extent taken advantage of J's beginning to abuse drugs. 7. The indecent images included a movie of a friend of the principal victim J, D, urinating, and the still image of the buggery of an unknown boy aged about 10. That image was placed in accordance with the well-known scale at level 5. 8. The effect upon the applicant's victims, both J and D, was drawn to the attention of the sentencing judge. J was a vulnerable victim and understandably in the circumstances he had been particularly affected. 9. There was a detailed basis of plea qualifying the pleas count by count. The offending was recognised by the applicant as involving a significant breach of trust. 10. The applicant is aged 33 years and was of hitherto clean character. A pre-sentence report available to the sentencing judge included: "2.6. Mr Brown seemed to have a distorted perception of his relationship with the victim and he describes being "in love" with [J]. Indeed, his request to speak to the victim after the PSR interview indicates his lack of understanding of how his sexual abuse has affected the victim in the long term. He did not show an appreciation of how his grooming of the victim, who was a vulnerable young male looking for a positive role model he could depend on, was exploited for Mr Brown's sexual gains and gratification. 2.7. He seems to take the view that because the victim did not openly protest or struggle against his abuse, that this was an indication that the victim did not object to his sexual advances or inappropriate behaviour. This would seem to further support my assessment that Mr Brown has an unrealistic perception of the harm caused to [J]. The defendant explained that he wanted to be a father figure for the victim and that he cared for the child which would seem to further demonstrate his flawed and distorted thought processes in regard to appropriate behaviour around children." 11. It was material of that kind, in our judgment, that provided the primary source for the assessment in relation to dangerousness which the sentencing judge was to make. It is often the case that it is such material, rather than the precise terms in which conclusions are expressed in pre-sentence reports, which can and does sensibly inform decisions taken in this context. 12. The conclusion section of the pre-sentence report is in the following terms: "5.3. If the Court is minded to impose a custodial sentence of a fixed term, I would propose the imposition of an Extended Sentence for Public Protection to enable Mr Brown to undertake relevant programme interventions as part of a Licence Condition. Should Mr Brown not complete the required programme intervention within prison, a period of at least three years is required for him to be able to complete all the pre groups work, the core sessions and the post group work in order for him to fully benefit from the programme in the community." 13. Two psychological reports have been prepared in relation to the applicant, the earlier of which was available to the sentencing judge. The earlier reports did not support an assessment of dangerousness in terms, but, worryingly, it included: "Mr Brown said that he befriended the youngster initially as a means of helping him and tried to provide a stabilising influence. Mr Brown felt that he was functioning almost as a surrogate father to the boy, and [J] describes him as such. Mr Brown was accepted into the household and would frequently stay over at the invitation of [J's] mother. Mr Brown said that on at least one occasion he was aware that [J] had stolen money from him. Mr Brown described [J] as somebody who was already sexually knowing and who was bisexual. [J] for his part knew that Mr Brown was gay and, even before they became sexually involved, would pull a banana in and out of his mouth in front of him, suggestively. Sexual activity with [J] was, he said, consensual and mutual." 14. Again, it is that sort of material which can provide assistance in underpinning a finding of dangerousness. 15. We do not consider that, having regard to all the material available to the sentencing judge, it was in any way incumbent upon him to accept the psychological assessment that the risk of offending was acceptably reduced by the fact that the offending concerned principally arose in relation to very particular circumstances. It is not without significance that the psychological report available to the sentencing judge did not extend into any particularisation in relation to assessing the significance of the possession of the images to which we have referred. 16. We consider that the sentencing judge correctly was influenced by considerations arising out of the material which we have set out herein. The more recent psychological report was prepared for a quite different purpose to that of sentencing. It was prepared in relation to a contemplated challenge to the necessity for this applicant to undergo various courses in closed conditions. It includes, at section 17 thereof, an evaluation of the potential significance of a relationship which the applicant has formed with another prisoner. It is unnecessary to go into detail in relation to that for the purposes of this judgment, but reading the detail thereof only serves to highlight the potential difficulties in managing risk in relation to this applicant in the medium term in the community. 17. We consider that the conclusion reached by the sentencing judge to the effect that an extended sentence for public protection was necessary here, rather than imprisonment for public protection and was adequate to manage risk was unimpeachable. He had fully in mind the significance of his also making a Sexual Offences Prevention Order, but he regarded the combination of the possibility of detailed supervision of the applicant's activities pursuant to an extended licence and the prohibition regime provided for by the Sexual Offences Prevention Order as being desirable in this instance. 18. We find the conclusion in relation to dangerousness and the disposal of this case in relation to the primary sentences passed unimpeachable. There is, however, a matter which concerns us in relation to the Sexual Offences Prevention Order which we shall deal with briefly. The final provision of the Sexual Offences Prevention Order which was made reads as follows: "save where to do so is inadvertent or unavoidable, not to possess any images of a child under the age of 16 years unless the prior permission of that child's parents or guardian has been obtained". That restriction would, for example, serve to criminalise the continued possession of a daily newspaper which happened to have an inoffensive photograph of a child in it unless it was disposed of straight away upon realisation that such a photograph was in the newspaper. It is not adequate to rely upon the good sense of prosecutors in cases of this type so that very widely drafted prohibitions can be incorporated. We regard that prohibition as being far too widely drafted, and we are therefore minded to delete it. In order to do so, it will be necessary to grant an extension of time and leave to appeal so as to deal with that point alone. To that extent we propose to permit this application and allow this appeal. 19. LORD JUSTICE PITCHFORD: Mr Field, that order can take effect immediately if you consider that you are sufficiently clothed with authority to accept it. If, on the other hand, you want the appellant, as he now is, to express a view about it, then we would order that it would take effect within seven days unless any written submission is made within that period. What do you want us to do? 20. MR FIELD: At the moment, leave things as they stand. My Lord, I will take instructions, but with that seven days in mind. So if I have understood it correctly, the applicant would have leave to make representations within seven days. 21. LORD JUSTICE PITCHFORD: The order will take effect within seven days unless in the meantime a written application is received from the appellant seeking to make further representations to the court. 22. MR FIELD: I am satisfied with that, my Lord.

```yaml citation: '[2011] EWCA Crim 1223' date: '2011-04-19' judges: - LORD JUSTICE PITCHFORD - 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} ======

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2021] EWCA Crim 1544 No. 202100727 B1 Royal Courts of Justice Thursday, 14 October 2021 Before: MR JUSTICE TURNER HER HONOUR JUDGE KARU ( RECORDER OF SOUTHWARK ) REGINA V KAMIL WOJCIECH KALWARSKI __________ 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] _________ Non-counsel application _________ JUDGMENT MR JUSTICE TURNER: 1 On 20 October last year in the Teesside Crown Court the applicant, Mr Kalwarski, pleaded guilty to a number of offences. They were set out in formal terms in three indictments, and there were two other summary only matters which were associated and which fell within s.51. Mr Kalwarski now renews his application to this court for leave to appeal against conviction, leave having been refused on paper by the single judge. He does not renew a further application for leave to appeal his sentence which had also been refused by the single judge. 2 By way of background, the applicant had been in a relationship with the complainant, Patrycia Kalwarski, for some nine years, over which period they had two daughters. However, this relationship ended in about August 2018, following allegations of abuse. I pass no comment as to whether those applications are well founded or not. I have no evidence in relation to it. Nevertheless, social services became involved. They concluded that the applicant was not engaging to the extent he should have done, and the stage came when he was not allowed contact with the two girls. Things deteriorated to the extent that on 22 March 2019 Mr Kalwarski was issued with a non-molestation order through the Family Court in Middlesborough. That non-molestation order, which we have read, prohibited the applicant, amongst other things, from contacting his former partner and from entering within a designated area in the vicinity of the former family home. 3 We summarise the offences with reference to the indictments in which they are set out. The first indictment was T20200328. The first count on that indictment alleged breach of that non-molestation order. Because of concerns which he had over Mr Kalwarski's movement, his former partner would regularly check his Instagram account by way of monitoring his activities. On 10 September 2019 she again checked his account and noticed that there was there a photograph which had been taken by the applicant of her house from across the road. Added to the picture was a comment in Polish which has been translated as: "This is the border of the ghetto. This is the border I am forbidden to cross. I do apologise to you, my daughters, that I even listened to anybody about that, and do not come to you, but soon enough we will go for a long walk and I will explain to you." 4 The second count on that indictment also related to a similar breach of the terms of the order. On 11 September 2019 the complainant once again checked the applicant's Instagram account. Once more, there was a photograph with a hand pointing at a home address with another comment in Polish which has been translated to as, "Daddy has come to you again just to see you but you are probably at school right now". It transpired that both photographs had been taken from locations that were within the geographical exclusion zone imposed by the non-molestation order. 5 On 12 September 2019 the applicant was interviewed in respect of the alleged breaches of the non-molestation order, and during the course of the interview he admitted taking the pictures. He said he believed he was outside the exclusion zone. This, of course, may have been a factor in mitigation, but it was not a defence. 6 On indictment F20200327 there were seven counts alleging further breaches of the non-molestation order on occasions when the applicant posted a series of messages. These were messages in Polish on the complainant's Facebook page. They were sent in July 2020, and in general, related to the applicant's concern for his children and the alleged parenting shortcomings of his former partner, the last message concluding with the following, "I am even more determined than ever and I am well prepared." 7 The applicant was arrested in respect of these matters on 4 August 2020 and interviewed later that day. In the interview he accepted sending the messages and said that they were meant for his children with whom he had not been in touch for two years. Again, this was a point capable of only going to mitigation and not guilt, because the terms of the non-molestation order were clear that no messages of that sort should be sent. 8 We now come to indictment T20200326. Between 13 July 2020 and 8 August 2020 the applicant sent a series of emails to the Teesside Magistrates' Court. They are reflected in counts 1 to 3 on the indictment which alleged sending an electronic communication with intent to cause distress or anxiety. The emails state the following: count 1, 13 July 2020, that the applicant was going to "set fire to the eyes of the judges"; count 2, 1 August 2020: "Urgent, if the case is continued based on the wrong application. Repeat the paternity strike if you force me to court based on the error and you will convince me that everything is fine when I did not see the children 16 months. I repeat my protest." 9 Count 3, 8 August 2020, the final email made further reference to contact with his children but also concluded with the warning, "This time my protest will take a more dramatic face on Monday". 10 On Thursday 16 July 2020 the applicant was due to appear before District Judge Capstick. The court staff were concerned about the potential threat and so were monitoring the applicant's actions. As the day progressed he became increasingly agitated and when his case was called on, two police officers were present at court. When he entered the courtroom, he produced a piece of paper from his pocket, held it above his head in both hands, saying, "This is what it's all about. I'm ending it, right here and now." He then produced a small container containing a flammable liquid, which he poured over his left arm and shoulder and then set light to himself. The applicant then, still ablaze, ran towards the bench, which action was the subject matter of count 5 alleging affray, and knocked over the court clerk, which further action was the subject matter of count 4, alleging assault by beating. He then lost his balance and fell to the floor, and whilst on the floor he was detained by the police and the fire was put out. On his arrest he said, "I told them I would do it and they didn't even stop me." 11 Finally, I deal with the summary offences. The applicant's conduct in the magistrates' court formed the subject matter of a charge under s.4 of the Public Order Act 1986 . The second offence of causing intentional harassment, alarm or distress, under s.4A of the Public Order act 1986 , related to events of 12 August 2020. A member of court staff was checking the outside of the magistrates' court building when he noticed the applicant in possession of a jerry can. Fearing that he might set the building on fire, he radioed for the doors of the building to be closed, and that a 999 call should be made. In the event, the applicant made no attempt to enter the building, but was captured on CCTV walking past the doors still carrying the jerry can. 12 Following the applicant's arrest, PC Johnson recovered a black petrol can from the applicant's vehicle which he said contained a quarter cupful of liquid that smelled of petrol, although during the course of the interview the applicant denied that it was. 13 Following his guilty pleas, the applicant was duly sentenced to a total term of imprisonment of 18 months. In grounds drafted by the applicant himself he seeks to challenge his convictions, alleging that it was unfair that the judge had invited the prosecution to lay more charges in relation to setting himself on fire in the courtroom as a result of which the count of affray had been added. The incident related, he said, to a peaceful protest against his mistaken sentence. He went on to contend that it was unfair that he was prosecuted for what amounted to non-criminal behaviour or accidental breach of the order. He said the police had informed him that the order had been cancelled. He said that it was unfair that his explanation or witnesses were not used at the trial and his lawyers did not represent him properly. He said his solicitors were not properly prepared and had not read his case papers, that evidence and witnesses were not called on his behalf. It was also unfair that the judge did not listen to his explanation regarding mediation with his ex-partner. 14 Against this background, however, it must be noted that the applicant made a full and unambiguous admission of guilt to the author of the pre-sentence report. The points he made to that author were in mitigation and did not amount to a defence to the allegations raised against him. 15 I have no doubt that he felt genuinely aggrieved at the way he thought he had been treated by his former partner, social services, the police, the court and his own legal team. However, none of his points, although they may well be sincerely made, amount to potential defences to the charges to which he pleaded guilty, in respect of which the evidence was and remains, we have to say, overwhelmingly strong. 16 In refusing leave the single judge observed: "You wish to be able to argue that your conviction is unsafe. You pleaded guilty to the counts on which you were convicted and therefore chose not to have a trial to contest these counts. There are limited grounds on which it is possible to argue that a conviction based on a guilty plea is unsafe. I am unable to discern any of them in the proposed grounds you have put forward for consideration. From the materials before me, it appears that before entering your plea you were fully and accurately advised about the charges you faced, the choices you had about how to plead, and the potential consequences of your choices. You confirmed at the time that you understood all of this clearly. You had time to think about your choices. You made clear and unequivocal decisions to plead. Because the case was adjourned on a number of occasions, you had plenty of opportunity to seek advice and to check on and confirm your decisions. You maintained your guilty pleas throughout. You were represented, and it would appear, appropriately advised throughout. It appears you wish to be able to complain about the advice you were given and the way you were represented. However, I can find no basis in the materials I have seen on which such complaints could arguably be upheld. Nor can I see anything that has changed since your convictions to suggest that there is an arguably good reason for permitting you to change your mind about your pleas. In those circumstances," concluded the single judge, "it is not arguable your conviction is unsafe." 17 We agree with that conclusion. I am going to add on a more personal note that I do appreciate the efforts which the applicant has made to come down to London and to put his case before us. He has been courteous and restrained and we understand, in the circumstances of the family difficulties he faced, how strongly he feels about his case. However, our job is to apply the law, and in all the circumstances we are unable to find that the conviction was unsafe. _____________

```yaml citation: '[2021] EWCA Crim 1544' date: '2021-10-14' judges: - 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} ======

Case No. 2008/04893/A1 Neutral Citation Number: [2008] EWCA Crim 2695 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Thursday 6 November 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MRS JUSTICE SWIFT DBE and MR JUSTICE MADDISON _______________ ATTORNEY GENERAL'S REFERENCE Nos. 60 of 2008 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 _______________ R E G I N A - v - DANIEL ALEX CALVIN GORDON __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4A Telephone No: 020-7421 4040 (Official Shorthand Writers to the Court) __________________ Mr P Wright QC appeared on behalf of the Attorney General Mr M Jackson appeared on behalf of the Offender __________________ J U D G M E N T THE LORD CHIEF JUSTICE: 1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence imposed at Birmingham Crown Court (sitting at Coventry) on 14 August 2008 by Her Honour Judge Fisher. We grant leave. 2. The offender is Daniel Gordon. He is 22 years old. He has previous criminal convictions. On 25 January 2008, in the Crown Court at Birmingham, he pleaded guilty to offences of robbery and possessing an imitation firearm at the time of committing an offence. He pleaded not guilty to a related offence of sexual assault. That matter was adjourned for trial. We are told by counsel on the offender's behalf, and we accept, that it was made clear at a very early stage in the proceedings that the victim of the sexual assault and the witness who would have supported her account were not required to give evidence. 3. On 16 June 2008, when the matter was listed for trial, the offender pleaded guilty to sexual assault. Sentence upon him in respect of all the offences was adjourned for the preparation of a pre-sentence report. 4. In the meantime, the trial of his accomplice, whose part in the offences will be described shortly in the judgment, proceeded before Her Honour Judge Fisher. In due course he was acquitted by the jury. 5. On 14 August 2008 the offender was sentenced on count 1 (robbery) to four years' imprisonment, on count 2 (possession of an imitation firearm) to two and a half years' imprisonment, and on count 3 (sexual assault) to three years' imprisonment. All the sentences were ordered to run concurrently, making a total of four years' imprisonment. An order was made that the time spent in custody on remand should count towards the sentence. The offender was placed on the Sex Offenders Register. 6. Whether this offence is described as robbery or burglary, it was an offence of grave seriousness. It amounted to every home owner's nightmare: two women in the sanctuary of their home were defenceless against violent men. 7. On the evening of 22 October 2007, in a bungalow situated in a quiet cul-de-sac in a residential area in Birmingham, a family were going about their ordinary business. At 7.20pm the father and teenage son left home to go about their entertainment for the evening. Their departure left mother and daughter alone together. The daughter was in her bedroom studying. The mother was in the kitchen preparing food. 8. Unfortunately, the offender and an accomplice were nearby. Within minutes of the departure of the father and the son, they entered the premises through an open window. They made their way into the kitchen and there disturbed the mother. Both men had taken steps to disguise their appearance. That is a significant feature in the context of the offender's assertion that he believed that the property was empty. The accomplice had a hat on his head and a neckerchief concealing his face. The offender had fastened a jumper over his head and around his face and neck to conceal his appearance. The accomplice was armed with an imitation handgun 10-12 inches in length. The offender picked up from the kitchen work surface and armed himself with a knife which had a blade of approximately 4 inches in length. 9. The mother underwent a prolonged ordeal. The imitation firearm was pointed at her forehead and she was threatened with the knife. The intruders demanded money from a safe which they believed was to be found somewhere within the home. They forced the mother into her bedroom and began to ransack the premises, demanding items of value. During the search the offender used his mobile phone to contact an accomplice. The conversation was about money within the premises. The intruders both repeatedly demanded to know the whereabouts of the safe. The mother was struck in the face by the accomplice. The force of the blow caused her glasses to be dislodged and her to fall onto the bed. On each occasion when she denied that there was a safe in the property she was struck by the accomplice. The offender pulled back the covers of the bed and told her to get into it. During the attack he yanked a gold chain and pendent from her neck. He used a knife to attempt to remove a ring from her wedding finger. Her finger was cut and there was a further demand to hand it over which, unsurprisingly, she did. The offender then demanded that she hand over the Rolex watch from her wrist, which again she did. The bedroom was searched. Money was stolen as and when it was found. The drawers and personal effects within the bedroom were strewn about. The intruders repeatedly asked as to the whereabouts of the safe. The mother steadfastly maintained that there was no safe. 10. The disturbance was overheard by the daughter. She went to investigate. As she approached her mother's bedroom she saw two masked men. She could hear her mother screaming in distress. She immediately returned to her room and, with great presence of mind, she called the police on her mobile phone. We have seen a transcript of the 999 call made by her. It shows a huge amount of screaming and a number of threats, all overheard down the telephone line revealing what was going on in the bedroom as the mother was at the mercy of the intruders. 11. The accomplice threatened to throw hot food over the mother. He went to the kitchen. He returned with a container of food she had prepared earlier that evening and threw the contents over her. Fortunately, the food was cool and did not cause any physical harm. 12. The accomplice then went to the daughter's bedroom. He forced open the door, causing damage to it in the process. Once inside the bedroom he threatened the daughter with the firearm. He punched her in the mouth with his fist so violently that a front tooth was knocked out and a second tooth was dislodged. 13. In the meantime, the offender continued to demand to know the whereabouts of the safe. The daughter protested that there was no such item. The accomplice ransacked the daughter's bedroom. She indicated that the only money available was in a small religious temple located in the corridor. It contained offerings and items of importance to the family's religious belief. The accomplice disturbed the temple. He then forced the daughter into her mother's bedroom where the mother was detained by the offender. 14. The offender brandished the knife at the daughter, grabbed her by the top of her clothes and demanded that she show him her jewellery. He ordered her to remove her top. He intimated that he would assault her sexually unless she complied with their demands for cash. The offender enquired as to whether there were any condoms within the house. That was a plain threat of sexual violence to persuade her, and no less to persuade her mother, to give the intruders the information that they were seeking. He then used the knife to slit the daughter's top before she was compelled to remove it. The removal of her top left her naked from the waist upwards. The offender held the knife towards her left breast, touched it with his hand and also with the edge of the knife. Unsurprisingly, she thought she was about to be sexually assaulted and indeed mutilated. 15. Fortunately the offender's mobile telephone rang. The call was plainly from another accomplice who was keeping watch. What was said is unknown. However, there was a police response to the 999 call made a few minutes earlier by the daughter. The offender reacted frantically to the telephone call and became very agitated. It appeared to the mother that the offender was being told to leave the premises. The offender ushered the mother and daughter out of the bedroom. As they were ushered out through the premises they saw an opportunity to make their escape. The two women ran out of the house and down the drive. The daughter was still half naked. Both women, unsurprisingly, were in considerable distress. 16. Officers, who had arrived at the cul-de-sac, were in the process of approaching the premises as the two women made their escape. The offender was detained as he ran from the premises. He was caught red-handed. 17. The women were taken to hospital to receive treatment. The whole incident had lasted something like half an hour. The mother sustained a black eye, swelling to her cheek, finger-mark bruises to the side of her jaw, a slight cut to the index finger of her left hand where the knife had been used to obtain the ring, and an injury to her back that was painful to the touch. Her daughter had sustained an avulsion of one tooth and a partial avulsion of a further tooth. Treatment was complicated because the avulsion of the front tooth was accompanied by the complete removal of the root. There were lacerations within her mouth and gum which were sutured. Nerve root treatment was required to both damaged teeth and she may require implants. 18. A search of the offender revealed jewellery, cash, a Rolex watch and the ring. 19. The accomplice made good his escape. 20. When the offender was interviewed he said that he had been informed that there was £65,000 in cash in the bungalow contained in a safe. That information had come to him in a telephone call made earlier that evening. He then met up with the accomplice who entered the premises with him. He did not name that man. Another man was also involved. He said that they had seen the husband and son leave and they therefore believed that the premises would be unoccupied. He admitted entry through an insecure window. He asserted that while in the bathroom his accomplice produced a handgun; prior to its production he did not know that his accomplice was armed. However, he admitted arming himself with a knife in the kitchen. He asserted that he did so in order to take control of a chaotic situation. He admitted that he had implied to the mother that the daughter would be sexually assaulted unless the women complied with his demands. He said that he had had no intention of carrying out a sexual assault; he had merely acted in such a way to persuade her to divulge the whereabouts of any cash that was located in the premises. 21. The offender has a number of previous convictions. Of significance, in February 2004, at Birmingham Juvenile Court, he was convicted of robbery. The facts of that offence were that the offender approached the victim and a friend and demanded money. When the victim refused, the offender produced an ice pick, pushed it into the victim's stomach and said, "Do you want to get stabbed?" The victim allowed the offender to take his wallet. On 4 August 2004, at Birmingham Magistrates Court, he was again convicted of robbery the particulars of which were that outside a pharmacy in Handsworth the offender ran up towards the female victim (who was known to him). He punched her several times to the face. The injuries included swelling to the right side of her face and swelling and a cut to her right eye. In October 2004, at Birmingham Magistrates' Court, he was convicted of common assault, the particulars of which were that, following an altercation in the street, the offender grabbed the victim by the throat, causing injury to the victim's neck. 22. Although there are no victim impact statements, the witness statements from the complainants refer to the profound and lasting effect that the offences have had on them and their loss of the sense of security which they are entitled to feel in their own home. By way of illustration the daughter says: "These two men have changed my life as a result of what happened. I can't even look at my dad now. I was building up my confidence at university. Now that has shattered. They have destroyed me. I don't know how I can go back to my house. I close my eyes and I see everything I have described. I am scared to go out. I thought he was going to kill me." In her statement, the mother said that as a result of what happened she felt fear, helplessness and anger. She expressed worry about the fact that the offender knew where they lived and where they worked. She said: "I felt scared that they were going to shoot us or stab us, as every time I said we did not have the safe or money, they were getting angrier. .... I do not know how .... I will feel in the future .... I am scared .... I don't want my daughter to have to go home. I don't even want to go back in my bedroom." 23. A pre-sentence report was prepared on the offender. It is worth noting how he described his involvement in this offence to its author: "Mr Gordon describes receiving a telephone call at approximately 6pm on 22 October 2007 from an unknown associate, informing him that there was £65,000 in an empty property in the Handsworth area. Mr Gordon stated that he subsequently met a further unknown associate at the premises, where he stated that he intended to commit a burglary. On arrival, Crown Prosecution Service papers suggest that Mr Gordon waited outside the premises until the father and son had left the scene, believing that the property was empty. Mr Gordon explained that he and his co-defendant entered the victims' property via a bathroom window at approximately 7.30. Mr Gordon informed me that it was at this point he realised his co-defendant had a firearm in his possession." Having summarised the facts of the offence, the author concluded that the offender posed a high risk of harm to the general public. The current victims were strangers. They were subjected to a "serious" robbery and sexual assault on the basis of financial gain. The author acknowledged the ongoing risk of emotional harm to the victims. The nature of the risks that the offender posed were described as emotional, physical and sexual assault. The author referred to a psychiatric report and concluded that it would be more beneficial for the offender to be sentenced to a determinate sentence appropriate to the seriousness of the offence, although he drew attention to the fact that the information given to the offender about the possibility of imprisonment for public protection might deter him from further offending. 24. In a report dated 28 February 2008 the Consultant Psychiatrist states: "[The offender] comes across as a surprisingly normal, affable, likeable lad, young and immature .... This seems a paradox. He also does not seem to take the current allegation quite as seriously as might be expected .... as if his ability to evaluate risk is not quite right, for some reason. At interview, he does not appear at all dangerous. He appears immature, but affable, warm and friendly. He may have been easily influenced by his peers, a lack of adequate thinking skills, or by cultural factors, but he does not present as a dangerous, or aggressive individual." That view is repeated in a second report in which the psychiatrist again records that the offender "appears a very pleasant, affable, warm character, and does not appear as an aggressive, psychopathic personality". Accordingly, in the opinion of the psychiatrist, the offender did not present a significant risk of serious harm to the public. 25. The material before the sentencing judge included a letter of apology written by the offender in which he expresses remorse for his offence and apologises to the victims of it. 26. It is to the offender's credit that he pleaded guilty to robbery and the associated offence of being involved with an accomplice who carried an imitation firearm, and that he did so at the earliest possible opportunity. On the other hand, he was caught red-handed at the scene with property from the premises in his possession. He pleaded not guilty to the sexual offence. Although it was made clear that it was unnecessary for the proper conduct of the defence to that count for the victim or her mother to be called as witnesses, the offender maintained this plea until the day of the trial. In all these circumstances we disagree with the conclusion of the sentencing judge that the offender was entitled to full credit for his plea. He was entitled to some credit, but not the one-third credit which is normally regarded as the full amount of credit to be allowed for this purpose. 27. In passing sentence the judge described the offence as "horrific". She noted that its effect would be borne by the victims for the rest of their lives. She said that she was conscious of the fact that the offender was the only one of those involved in this attack who fell to be sentenced. She accepted that the offender may not have appreciated that his accomplice was armed, but she recorded that this was a premeditated offence. She accepted that he entered the premises thinking that they would be empty. She bore in mind that the offender was still a young man -- 21 at the material time -- and that, although he had previous findings of guilt and convictions, it was the first occasion when he had to face a substantial prison sentence. She then described the frank way in which the offender had approached his interview with the author of the pre-sentence report and the two reports from the consultant psychiatrist. She accepted the assessment that the offender was immature. Having expressed the hope that the offender would take advantage of educational facilities in prison, she imposed the sentence we have outlined. 28. In our judgment that sentence was significantly unduly lenient. We acknowledge that the offender expressed remorse and that he is young and apparently immature. Although he is still young, we cannot overlook the fact that this is not the first occasion when he has used physical violence, and indeed physical violence to a woman. However, from our reading of the papers we consider that he is manipulative as well as immature. We are not sure how genuine his expressions of remorse are; whether he has any real insight into the impact of his crime on the victims or whether he is simply remorseful at the situation in which he has found himself and anxious to put himself in as good a position as possible. 29. We do not accept the offender's version of how he became involved in the crime. We are asked to believe that an unknown associate telephoned him and told him that there was £65,000 in an empty property. We ask rhetorically: why should an unknown associate give him such information? Why should anyone leave £65,000 in an empty property? Why should the offender believe such information if his informant was completely unknown to him? We are told that the offender then entered the premises with another unknown associate. That may have been the same unknown man who had made the telephone call, but the implication of what the offender told the author of the pre-sentence report was that it was another, different unknown associate. We ask rhetorically: is it likely that two unknown associates involved the offender so as to enable him to have a share of £65,000 which was being kept in empty premises? It is, in reality, too far-fetched. It is said that the property was empty. The lights of the house must have been on because the mother was going about her business in the kitchen and the daughter was studying in her bedroom. If it was thought that the property was empty, why was there any need to wear any sort of disguise? 30. The sentencing judge was prepared to deal with the case (and we do not feel justified to contradict her view) on the basis that it was not until the offender entered the property that he realised that his accomplice had a firearm in his possession. However, it was to the offender and not to the accomplice that the warning telephone call was made. We are asked to believe that the offender knew nothing of the identity of the unknown accomplice who was keeping look-out. 31. We are singularly unimpressed, and certainly much less than some of those who have dealt with the offender, with the suggestion that he is a warm, affable young man. That no doubt is a convenient front which he is able to produce as and when needed. There was nothing affable and warm about his behaviour on this night, nor, indeed, when he committed the earlier offences. We suggest that the offender's ability to convey affability and warmth needs to be carefully taken into account whenever the date of his release is considered. 32. In our judgment this was a very serious offence of its kind. At least three people were involved in a planned burglary of someone's home. Two of them entered quite deliberately after the two men of the house had gone out. One of the intruders carried an imitation firearm. The other (the offender) picked up a fearful knife and carried it throughout the protracted ordeal which the victims underwent and during the prolonged attack on the premises. We focus on the two aspects of the offender's behaviour for which it is impossible for him to be other than wholly responsible. He used the knife to try to remove the ring from the mother's finger. That was an act of extreme callousness. Worse, he used the knife to cut away the clothing on the top part of the daughter's body. He held the knife towards her breast and touched it with its edge. His purpose was to force the mother or the daughter to tell him what he wanted to know. Those were not the actions of the accomplice; they were the actions of the offender and his alone. His actions led the daughter to believe, with every justification, that she would be sexually assaulted and possibly mutilated. These actions are set out in the our summary of the facts. Two women were subjected by way of joint enterprise to gratuitous violence. The premises were ransacked. It was burglary or robbery (in truth it was both) of the most serious kind. 33. We are satisfied that the offender represents a danger to the public. The risks which he poses well qualify him for an order of imprisonment for public protection. That question was not directly addressed by the sentencing judge. At the time when the offences were committed, the statutory assumptions of dangerousness would have applied. At the date of sentence the entire matter was open to the judgment of the court. We have exercised our own judgment on the facts of this case in the context of the offender's behaviour, the offences he committed on this occasion and his previous convictions. We reject the suggestions in the psychiatric report as wholly unfounded. 34. We acknowledge that the judge presided over the trial of the accomplice and so she had a much greater insight into the features and facts of the case than we have from the papers. But nothing in her sentencing observations suggested that the trial had revealed to her features of the case which might have compelled her to impose a much more merciful sentence than would otherwise have been appropriate. 35. In our judgment there should have been, and there will now be, an order of imprisonment for public protection. This is a clear and obvious case for such an order. We conclude that the determinate sentence of four years' imprisonment was wholly inadequate. We have considered the relevant Sentencing Guidelines Council's guidance. Rather than pass consecutive sentences to allow, for example, for the carrying of the imitation firearm by the accomplice, we consider that the right approach is to take an overall view of this criminality. Even allowing for the guilty plea and the appropriate reduction, and allowing too for the comparative youth of the offender, in our judgment the determinate sentence should not have been less than ten years' imprisonment. 36. If we had been dealing with this case by way of determinate sentences, the sentences would have been ten years, five years and five years' imprisonment on each count, to run concurrently. However, having made an order of imprisonment for public protection, we make it clear that the notional minimum term which must be served in custody before the release of this offender can begin to be considered is one of five years' imprisonment. This will be the sentence on count 1. Time spent in custody to date will count towards that time. 37. Nothing should be reported of this case which would identify the victim of the sexual assault. ________________________________

```yaml citation: '[2008] EWCA Crim 2695' date: '2008-11-06' judges: - MRS JUSTICE SWIFT DBE - MR JUSTICE MADDISON - 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} ======

No. 2003/04281/A9 Neutral Citation Number: [2004] EWCA Crim 496 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 27 February 2004 B e f o r e: LORD JUSTICE RIX and MR JUSTICE TREACY - - - - - - - - - - - - - - R E G I N A - v - DARREN MICHAEL BROWN - - - - - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - MR M BONNELL appeared on behalf of THE APPELLANT MR N L NEALE appeared on behalf of THE CROWN - - - - - - - - - - - - - - J U D G M E N T Friday 27 February 2004 LORD JUSTICE RIX: I will ask Mr Justice Treacy to give the judgment of the court. MR JUSTICE TREACY: 1. This matter comes before the court as a result of a reference by the Criminal Cases Review Commission. On 29 January 2003, in the Crown Court at Sheffield, before His Honour Judge Keen QC, the appellant was sentenced, having previously pleaded guilty, for a burglary of a dwelling-house. 2. The burglary took place in the early hours of the morning of 7 August 2002. We shall refer to it as “the new offence”. The occupiers of the house were asleep in bed. The appellant stole jewellery, cash and bank cards to a value in excess of £2,400. He was arrested on 8 August 2002. He indicated a plea of guilty in the magistrates' court. He was remanded in custody. He remained in custody between 8 August 2002 and his appearance for sentencing on 29 January 2003, a total of 174 days. He was sentenced to four years' imprisonment for the new offence. He had been a very persistent burglar in the past. 3. At the time of his arrest for the new offence the appellant was out on licence from a sentence totalling four years and nine months' imprisonment for burglary. We refer to that as “the first sentence” in this judgment. In respect of the first sentence the expiry date was 1 January 2004. The appellant was released on licence on 3 July 2002. At the date of the new offence, 7 August 2002, the unexpired portion of the first sentence was one year four months and 24 days. 4. On 27 August 2002 the Home Office revoked the appellant's licence administratively. This had the effect of returning him to prison in respect of the first sentence. After the revocation of the licence he would, had he not then been in custody for other reasons, have been released at the three-quarter point of the first sentence, that is on 25 October 2002, pursuant to section 33(3) of the Criminal Justice Act 1991 . The period between the revocation on 27 August and 25 October is 60 days. Thus of the 174 days which the appellant spent in custody between arrest and sentencing, 60 were attributable to his licence having been revoked administratively in respect of the first sentence; 114 days were attributable solely to his being remanded in custody in respect of the new offence. 5. On 29 January 2003 the appellant was sentenced by His Honour Judge Keen. First, he was ordered to return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 for one year four months and 24 days, being the period equal to the entire unexpired balance of the first sentence as at the date of the new offence. Secondly, he was sentenced to four years' imprisonment consecutive for the new offence. 6. The appellant applied for leave to appeal against sentence on grounds settled by counsel. Counsel argued that the judge failed to have any sufficient regard to the principle of totality in determining the period of custody which the appellant would have to serve. The single judge refused leave and observed that the appellant was a career burglar; that the offence was committed at night whilst people were in occupation of the premises; and that he had recently been released on licence. The single judge observed that, although the total sentence was severe, it was not manifestly excessive. 7. After refusal of the application for leave to appeal against sentence, the appellant approached the Commission for a review of his sentence. He raised two particular matters. First, he said that he was undergoing a process involving a comprehensive psychological assessment. He submitted material suggesting that he would benefit from therapy. The matter was considered by the Commission who treated his point as being an argument that his sentence was excessive. Having considered the matter, the Commission rejected the appellant's contention, pointing out that the trial judge had considered some materials which related to the possibility of therapy, but considered that the optimism expressed in those materials was ill-founded. The trial judge pointed out that the appellant had offended within a month of being released, despite having been put on a Prolific Offender Project, and pointed out that he had a duty to protect the public. 8. The Commission, therefore, did not refer this matter to the court on the first ground raised by the appellant. However, counsel today has raised the matter again before us on a new basis. Since the Commission considered the matter, a report has been commissioned from and prepared by Dr Naomi Murphy, a Chartered Clinical and Forensic Psychologist. She has prepared a lengthy report in the form of a psychology assessment, dated 23 July 2003. The recommendation in that report is that the appellant would benefit from participation in long-term psychological therapy aimed at addressing childhood trauma and current inter-personal difficulties. The suggestion is that he would benefit from therapy and that therapy could be offered within the prison regime at one of two institutions which are named in the report. The report identifies that the appellant suffers from a very low IQ and identifies a number of personality and other disorders which are said to be at the root of his problems. 9. Based on that material, which counsel points out was not available to the Commission, we are asked to give further consideration to the sentence which was passed. Counsel has submitted that it would enable us to mitigate the sentence and reduce that which was passed by a period of about six to twelve months. 10. We have considered that submission which was made to us, but we reject it. We do not consider that the report which has been placed before us provides a basis for reduction of the sentence which was imposed by the sentencing judge. 11. The second matter arises out of the matters which were considered by the Commission. The appellant suggested to them that he had not been given sufficient credit for time spent in custody prior to sentence, which was a total of 174 days. He submitted to the Commission a Release Date Notification Slip, which the prison authorities had prepared. It indicated that the appellant would be allowed credit for 114 days spent in custody out of the 174, but the remaining 60 days, since they arose from the revocation of the licence would not count towards his sentence. 12. That matter has been considered in detail by the Commission and by this court. Section 67 of the Criminal Justice Act 1967 provides for sentences of imprisonment to be reduced by certain time spent in custody. A consideration of the provisions of section 67(1) and 67(1A) shows that the 60 days attributable to the administrative revocation of the licence do not serve to reduce the four-year sentence for the new offence to which they are not relevant. Neither are they credited automatically against the return to custody in respect of the first sentence as they do not represent a relevant period within the terms of section 67 . This has been confirmed with the Sentence Calculation Unit of Her Majesty's Prison Service. 13. In R v Sharkey [2000] 1 Cr App R 409 (which itself is not relevant to the appellant's point), Lord Bingham of Cornhill CJ, in a way which is relevant to this case, said: “The court will in the ordinary way wish to make allowance for any time which a defendant has spent in custody following administrative recall as the court did when it resentenced the appellant .... unless this is time which will in any event be credited against the sentence imposed for the new offences.” 14. The case of R v Stocker [2003] 2 Cr App R(S) 54 is on point. Mr Stocker committed offences while on licence from an earlier sentence and had his sentence revoked administratively, with the result that he was recalled to prison. In due course he was sentenced to be returned to prison under section 116 for a period equal to the entire unexpired balance of the earlier sentence as at the date of the new offence, namely 351 days. This was to be followed by a consecutive sentence of imprisonment for the new offences. No allowance was made for the 156 days which he had spent in prison as a result of the revocation of his licence. Mr Stocker contended that allowance should have been made in setting the appropriate term under section 116 . Allowing the appeal against sentence, the Court of Appeal referred to Lord Bingham's comments in Sharkey and it took into account the 156 days served on recall, which fell to be doubled by recognising that one day spent in custody following the revocation of a licence was the equivalent of two days return to custody under section 116 in the case of a short-term prisoner. Accordingly the sentence was reduced. 15. In this case the appellant was sentenced to be returned to prison for the maximum period permitted under section 116 , being a period equal to the unexpired balance at the date of the new offence (the first sentence), namely one year four months and 24 days. No allowance was made by the judge for the 60 days in custody attributable to the revocation of the appellant's licence. That period of 60 days does not fall to be credited against the four-year sentence for the new offence. Nor can it be credited by the prison authorities against the sentence imposed under section 116 . Both the cases of Sharkey and Stocker suggest that it should have been recognised by the sentencing court in setting the period of return to prison. The sentencing judge did not have his attention directed to this question. Nor was it raised when the matter came before the single judge on an application for leave to appeal against sentence. 16. However, we consider that we should take account of Lord Bingham's observations in Sharkey and of the decision in Stocker . We determine that the sentence imposed under section 116 should be reduced. On the basis that the appellant is a long-term prisoner who would be released after serving two-thirds of his sentence, it seems to us that the reduction should be 90 days, being the appropriate grossed-up equivalent of the 60 days. This is an analysis which has not been challenged by Mr Neale, who has attended today on behalf of the Crown. Accordingly, to that extent this appeal is allowed, that is by reducing the period of one year four months and 24 days ordered under section 116 by a period of 90 days. 17. LORD JUSTICE RIX: The appeal will be allowed to that extent. Mr Bonnell, thank you for your submissions. Mr Neale, thank you very much for your assistance.

```yaml citation: '[2004] EWCA Crim 496' date: '2004-02-27' judges: - LORD JUSTICE RIX - MR JUSTICE TREACY ```

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 887 Case No: 201505893C1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SOUTHWARK CROWN COURT His Honour Judge Griffith T20157187 Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/07/2016 Before : LORD JUSTICE GROSS MR JUSTICE WYN WILLIAMS and THE RECORDER OF LONDON HHJ HILLIARD QC (SITTING AS A JUDGE OF THE CACD - - - - - - - - - - - - - - - - - - - - - Between : RE TIMES NEWSPAPERS LTD - and - R Applicant/ Appellant Respondent - and - EHSAN ABDULAZIZ Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mark Heywood QC (instructed by the Crown Prosecution Service ) for the Respondent Anthony Hudson QC and Ben Silverstone (instructed by Times Newspapers Limited) for the Applicant/Appellant Hearing date: 26 April, 2016 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Gross : INTRODUCTION 1. The Applicant (“TNL”) applies for permission to appeal under s.159 (1)(a) and (c) of the Criminal Justice Act 1988 (“s.159”) and Crim PR 40 against the order made by HHJ Griffith, sitting at Southwark Crown Court, on 15 th December, 2015 (“the 15 th December order”). 2. S.159 provides as follows: “ (1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against – (a) an order under section …11 of the Contempt of Court Act 1981 made in relation to a trial on indictment; ….. (c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings. ” 3. In a nutshell, Mr. Abdulaziz (“the Defendant”) stood trial in early December 2015 on a single count of rape. On the 7 th December, the Crown served on the court officer a notice that it would apply for a private hearing in respect of “all those parts of the trial in which any evidence is given by or on behalf of the defendant, or any reference is made to the same in any manner, concerning any matter of a kind to be identified to the court.” The Crown had only become aware of the need (or perceived need) for this application on the same day. 4. On the 8 th December, the Crown proceeded with the application, thus foreshadowed. It began in open court and then, in accordance with CPR 6.6, proceeded in private. Both TNL and the Defendant’s representatives were excluded from this hearing. 5. In the event, the Judge made an order on the 8 th December (“the 8 th December order”), which provided as follows: “ It is ordered pursuant to CPR 2015 Rule 6, that:- 1. The time for this application is abridged. 2. Any evidence to be given by or for the Defendant concerning his character, as opposed to the events the subject of the indictment, should be given in private. 3. Any further reference to such evidence should be made in private. 4. Any reporting of evidence given by or for the Defendant should be delayed by a period of 10 minutes.” 6. No challenge is made to the 8 th December order. 7. The controversy now before the Court arose as follows. On the 8 th December, the Judge on resuming the public hearing was asked by a reporter present in Court on what grounds the 8 th December order had been made. The Judge gave a brief explanation in open Court. It is the words used by the Judge in doing so (“the wording”) which have given rise to concerns. 8. The Judge, in effect, repeated the wording in an e-mail sent without any covering restriction to TNL on the 9 th December (“the 9 th December e-mail”). 9. The upshot was an application by the Crown on the 15 th December for an order under s.11 of the Contempt of Court Act 1981 (“the 1981 Act”) that there be no reporting of the wording. TNL opposed the application. The Crown applied for part of its application to be heard in the absence of TNL. For its part, TNL submitted that, in order to be afforded a fair hearing, it should not be refused access to any material relied on by the Crown and should not be excluded from the hearing. By way of an alternative, counsel for TNL offered an undertaking not to disclose specified information to any person other than his instructing solicitor at TNL. In the further alternative, TNL submitted that the Crown should communicate the gist of the material relied on by the Crown to TNL’s representatives and TNL should be permitted to make submissions on it. 10. S. 11 of the 1981 Act provides as follows: “ In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.” 11. The Judge decided to hear part of the Crown’s application in the absence of TNL. No summary of that part of the hearing, or the evidence heard, was provided to TNL. 12. At the end of the hearing, the Judge indicated that he would grant the order sought by the Crown (“the 15 th December order”). The 15 th December order was made under s.11 of the 1981 Act and stated that there should be no reporting of the wording, extending both to the hearing in Court on the 8 th December and the 9 th December e-mail. 13. Later on the 15 th December, the Judge provided his reasons in the form of a written Ruling (“the 15 th December Ruling”), to which we shall later return. 14. It appears that part of the 15 th December proceedings were conducted in open court. Neither the 15 th December order nor the 15 th December Ruling carried any covering restriction. Both used the wording. 15. The Defendant gave evidence on the 10 th and 11 th December; in the event, he was later acquitted by the jury, on the 15 th December. 16. For completeness, in the interim – between the 10 th December by when there was discussion of the Crown seeking an order under s.11 of the 1981 Act and the 15 th December when that application was heard - there had been no reporting of the wording. Some consideration was given to an order under s.4(2) of the 1981 Act but, as we understand it, no such order was made or was necessary as TNL had stated in open Court, in the absence of the jury, that it had no intention of publishing the wording until a verdict had been returned. As is clear from the transcripts, the Judge’s concern at this time was that the jury should not know of and should not speculate as to why a small part of the trial would be heard in camera . THE HEARING BEFORE THIS COURT 17. We turn to the hearing before this Court. Apart from a very brief ex parte hearing where only the Crown was represented, we proceeded in open Court but subject to an order made under s.4(2) of the 1981 Act. The Defendant had been notified of the hearing but took no part and was not represented. 18. We were satisfied that the matter came within s.159(1)(c) and we granted TNL leave to appeal. In accordance with well-established law, we did not treat the hearing as a review of the decision of the Judge but have instead come to an independent conclusion on the material placed before us: see, In re Guardian News and Media Ltd and Others [2014] EWCA Crim 1861 ; [2015] 1 Cr App R 4 (“ Incedal I” ), at [3], together with the authority there cited. 19. We were most grateful to Mr Hudson QC and Mr Silverstone, for TNL and to Mr Heywood QC, for the Crown, for their assistance. 20. As it seems to us, the issues fall conveniently under three headings: i) Was it necessary to depart from the principle of open justice in respect of the wording? If the answer is no, that is an end of the matter. (“Issue I: Necessity”) ii) If the answer to Issue I is yes, does the court have jurisdiction to restrain publication of the wording under s.11 of the 1981 Act? (“Issue II: Jurisdiction”) iii) What procedure should have been adopted in hearing the application on 15 th December? Specifically, should the Crown have been permitted to rely on information and/or evidence in support of its application which was not provided (even in summary form) to TNL or its legal representatives? (“Issue III: Procedure”) 21. Before turning to these Issues, it is right to record that they have helpfully been narrowed through the commendable realism and good sense, if we may say so, of both counsel. Thus: i) The argument has focused on the wording as used in open Court on the 8 th December. No separate points are taken on the 9 th December e-mail, the 15 th December order, the 15 th December Ruling or the appearance of the wording in the Crown’s written note in support of its application of the 7 th December, a copy of which was sent to TNL in February 2016. Those other instances when the wording was used in “open” documents are, however, relied upon by TNL to show a consistent picture and in support of its case that s.11 of the 1981 Act could not be invoked to withhold publication. ii) With regard to the sequence of events in open Court on the 8 th December, the parties were content to proceed as follows: (1) there had been a decision by the Judge that (as later recorded in the 8 th December order) evidence concerning the Defendant’s character would be heard in camera ; (2) the indication of that decision was followed by the exchange between the reporter and the Judge during which the wording was used. ISSUE I: NECESSITY 22. We start with well-established law, as to be expected, not in dispute before us. For present purposes and shortly stated, open justice is a fundamental principle of the common law; the test for departure is one of necessity – nothing less will do; that test may be satisfied to avoid frustrating or rendering impracticable the administration of justice: see, Incedal I , at [10] et seq; In re Guardian News and Media Ltd. [2016] EWCA Crim 11 ; [2016] 1 WLR 1767 ( “Incedal II” ), at [47] – [50]; see too, the helpful case note by Prof. Hungerford-Welch, at [2016] Crim LR 433. 23. Provided only that there is jurisdiction to withhold the wording from the public, then we are satisfied that it is necessary to do so. i) The 8 th December order, against which there is no appeal, provided for an in camera hearing as and to the carefully limited extent, there set out. ii) As we said in open court, following the brief ex parte hearing before us, we were satisfied that the material shown to the Judge was such as to justify his decision to hold that in camera hearing. Indeed, although we cannot elaborate in an open judgment, the reasons for doing so are compelling and necessitate that departure from the principle of open justice. iii) Although again we cannot elaborate here, put quite simply, publication of the wording would frustrate or undermine the purpose of the 8 th December order. The same reasoning that justified the decision to hold the in camera hearing, requires the prohibition of the publication of the wording. It is therefore necessary, to avoid frustrating or rendering impracticable the administration of justice, for the Court to give directions prohibiting the publication of the wording – provided only that there is jurisdiction to do so. 24. It follows that our answer to the question underlying Issue I is “yes”. ISSUE II: JURISDICTION 25. (1) The facts: Our starting point is to determine how, as a matter of fact, the wording came to be mentioned in open Court on the 8 th December. As it seems to us and though there are some surprising features, a clear picture can be discerned. 26. Somewhat late in the day, on or about 7 th December, the Defendant (or his representatives) indicated that he would or might wish to give evidence as to his character. This was in no sense part of the Crown’s case; the situation was far removed from one where the Crown was anticipating an in camera hearing and preparing its case with that in mind. The Crown’s application for an in camera hearing came before the Court, fairly rapidly, the next day. In his observations in open Court on the 8 th December and in the 9 th December e-mail, it is clear that the Judge was motivated by a desire to assist TNL. 27. Unfortunately, it is equally plain that the Judge’s use of the wording amounted to a mishap of a serious nature, such that publication of the wording would frustrate or undermine the purpose of the 8 th December order. That mistake was perpetuated over the days which followed. That the Judge had said “too much” was acknowledged by him in the transcript of the 15 th December hearing and at paragraphs 5 and 16 of the 15 th December Ruling. 28. We have some sympathy for the Judge in that, for whatever reason, those representing the Crown did not at once draw the error of the 8 th December to his attention and furnish assistance to prevent the other instances where the wording was used without restriction. Indeed, one of the curiosities of this matter, is that even the 15 th December order and the 15 th December Ruling contained unrestricted use of the wording. The delay between the 8 th December and the Crown’s application on the 15 th December is itself a puzzle – though the apparent lack of urgency is at least in part explained, first, by the fact, as we were told, that the Crown was unaware of the 9 th December e-mail for several days; secondly, because there was no threat of publication of the Judge’s reasons for the 8 th December order prior to the verdict of the jury (see above). A still further oddity is the fact that the Judge’s reasons for the 15 th December Ruling are, with respect, not as clear as they might have been; here, however, we have no doubt that the explanation lies in a well-intentioned and very proper effort on the part of the Judge to acknowledge his mistake and to salvage what was on any view an unfortunate position. 29. All that said and notwithstanding the curiosities, puzzles and apparent lack of urgency, we have no real hesitation in concluding that the use of the wording in open Court on the 8 th December was a mistake and that the self-same mistake was repeated in the days which followed, including the 15 th December. With respect to all concerned no or insufficient thought had been given to how the 8 th December order was to be explained in open Court. There are lessons to be learnt in that regard, to which we return later. 30. (2) The law: For present purposes, the legal framework can be shortly summarised. 31. First, restraining the publication of something said in open Court is rightly and plainly a matter of extreme sensitivity; no such order will be made lightly and without the most careful scrutiny. As was not in dispute before us, the only power capable of being invoked here is contained in s.11 of the 1981 Act. For the Crown, therefore, it was s.11 or “bust”. 32. Secondly, however, it is clear that the mere fact something has been said in open Court is not conclusive and fatal to any restraint. There is a jurisdiction to correct mishaps. In In re Times Newspapers Ltd [2007] ECWA Crim 1925; [2008] 1 WLR 234 , a criminal trial was taking place partly in camera ; an exchange then took place in open Court which should have occurred in camera . Giving the judgment of this Court, Lord Phillips of Worth Matravers CJ, said (at [21]) that the order made by the Judge under s.4(2) of the 1981 Act must be quashed; however, he went on to say this: “22. It does not follow that there was no way of preventing the mischief that might have been caused by the accidental inclusion of the question and answer in the evidence given in open court when it should have been given in camera. Mr Nicol submitted that, once the question had been posed and the answer given in open court, the evidence was in the public domain and publication could not be prevented. 23. We do not accept that submission. There is a world of difference between what is said in open court and what is published, and the CCA is concerned with the latter. The question and answer fell within the category of evidence that the judge had ordered should be withheld from the public by his ruling under section 8(4) of the Official Secrets Act 1920. It was open to him to make an order under section 11 of the CCA that embraced the question and answer, notwithstanding that the question and answer had, by mistake, been heard in public…..” 33. Thirdly, the scope of the s.11 jurisdiction is obviously governed by the wording of the section (set out above). For the Court to have power to give directions prohibiting the publication of a “matter”, the Court must first have (1) allowed the matter to be withheld from the public in proceedings before the Court; and (2) have had power to allow that matter to be thus withheld. The Court may then give “such directions prohibiting the publication of that …matter…as appear…to be necessary for the purpose for which it was so withheld”; the directions prohibiting publication are thus linked to the purpose for which the matter was withheld in the first place. “Matter” does not have a fixed meaning; its meaning instead depends on the context and is fact sensitive in any given case. As will be clear in a moment, the key (though not the only) issue dividing the parties in the present case concerns the meaning of the “matter” here withheld from the public. 34. (3) The law applied to the facts: For TNL, Mr Hudson contended that the “matter” here which the Judge had allowed to be withheld from the public was the evidence referred to in the 8 th December order; the Judge had not, still less deliberately, exercised the power to withhold the wording used as part of his reasons for making the 8 th December order from the public. For the Crown, Mr Heywood submitted that, in context and having regard to the interest sought to be protected, the “matter” which the Judge had allowed and deliberately allowed to be withheld from the public extended to the reasons for the 8 th December order, including the wording; the approach advocated by Mr Hudson was too narrow, “sterile” and likely to lead to an unjust result. 35. As is apparent, the express terms of the 8 th December order deal and deal only with the evidence to be given in camera . The express terms say nothing as to the reasons for the 8 th December order. However, in our judgment, as a matter of necessary implication, the “matter” allowed to be withheld from the public must cover not only the evidence the subject of the 8 th December order but also the reasons for that order - insofar as the publication of those reasons would otherwise have the effect of revealing the nature of the evidence to be withheld from the public. Were it otherwise, publication of such reasons would frustrate or undermine the purpose of the order. On this footing, the matter allowed to be withheld from the public must encompass the wording; as we have already concluded, the same reasoning that justified the decision to hold the in camera hearing, requires the prohibition of the publication of the wording. 36. By way of amplification: i) We readily accept that orders, especially those restraining publication and so derogating from the principle of open justice, must be precise. Save most exceptionally, we would expect the express terms of any such orders to deal exhaustively with the matter to be withheld from the public. We are, however, driven to the conclusion reached here, most exceptionally, because of the stark and strict necessity for the implication. ii) There is no doubt that the Judge deliberately allowed a “matter” to be withheld from the public and, in the light of our answer to Issue I, he had the power to do so; s.11 of the 1981 Act is accordingly engaged unlike In re Trinity Mirror plc [2008] EWCA Crim 50 ; [2008] QB 770 , at [19]. The scope of the matter allowed to be withheld from the public is determined here both by the express terms of the 8 th December order and by way of necessary implication. iii) We have no doubt that the publication of the wording would prejudice the administration of justice. For the reasons already given, such publication would frustrate or undermine the purpose of the 8 th December order. Further and viewed from a different perspective, it is to be recollected that the Defendant gave evidence on the basis that a part of it should be given in camera ; the assurance that he was thus given would be negated if the wording was published. That cannot be right. iv) As already catalogued, the Judge and (it must be said) the Crown failed to focus on the ramifications of the wording being used in open Court. It is unnecessary to belabour that mistake and its perpetuation over the ensuing days. Given, however, that the wording is encompassed within the matter allowed by the Judge to be withheld from publication, the Court is not powerless to deal with the mischief thus accidentally caused: see, In re Times Newspapers Ltd (supra) , at [22] – [23]. As there observed, there is “…a world of difference between what is said in open court and what is published and the CCA is concerned with the latter”. 37. Accordingly, we conclude that the Court has jurisdiction to restrain the publication of the wording under s.11 of the 1981 Act and would answer the question underlying Issue II, “yes”. We are fortified in reaching this conclusion by the consideration that there is, entirely rightly, no challenge to the substance of the 8 th December order; however, had our answer to the jurisdiction question been different, then that very substance would have been frustrated or undermined by publication of the wording. 38. Before parting with Issue II, we add these observations by way of lessons to be learnt for the future: i) First, as the events of this case so clearly demonstrate, when there is a hearing in camera , it is of the first importance to give proper attention to what is thereafter said in open court as to that hearing and any decisions there taken. As provided by CPD 2015, 6B.4(i) , the order must specify “…whether or not the making or terms of the order may be reported or whether this itself is prohibited”. The CPD goes on to state that such a report could “cause the very mischief” which the order was intended to prevent. ii) Secondly, applications for in camera hearings and such hearings themselves can give rise to complexity. In the present case, the matter arose somewhat unexpectedly and it would appear, short of adjourning the trial, had to be dealt with by the Judge dealing with the trial. The Senior Presiding Judge (“SPJ”) may, however, wish to consider what arrangements could or should be made via Presiding Judges (“PJJ”) and Resident Judges (“RJJ”) with regard to the allocation of such applications, either to RJJ or to Judges specifically designated by the RJ. This observation is not intended to imply criticism of the Judge in the present case; moreover, we have an open mind as to what, if any, arrangements could or should be made in this regard. We do, however, think that the matter would benefit from consideration by the SPJ. ISSUE III: PROCEDURE 39. As foreshadowed, TNL here complains that in support of its 15 th December application the Crown was permitted to rely on information and/or evidence which had not been provided (even in summary form) to TNL or its legal representatives. With respect, there is nothing in this point. As to principle, it is unnecessary to add to the observations in Incedal I at [20] – [30] and Incedal II , at [33] – [35]. Even so, we specifically raised this matter with the Crown at the hearing before us and are satisfied with the answer that, on the facts of the present case and despite further reflection, the Crown could neither accept undertakings nor supply TNL with the “gist” of the information and evidence in question. We reject this TNL complaint. OVERALL CONCLUSION 40. For the reasons given, this appeal must be dismissed. 41. Having canvassed this matter with both the Crown’s and TNL’s legal representatives at the time of circulating the draft judgment, we discharge the order made under s.4(2) of the 1981 Act covering the hearing before us. However, with the agreement of the legal representatives of the Crown and TNL, we make an order under s.11 of the 1981 Act in the following terms: “There be no publication of any matter tending to identify the terms or nature of ‘the wording’ referred to at [7] of the Open Judgment handed down on 8 th July, 2016, such order to remain in effect until further order of this Court. ”

```yaml citation: '[2016] EWCA Crim 887' date: '2016-07-08' judges: - LORD 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} ======

Neutral Citation Number: [2012] EWCA Crim 434 Case No: 2011/04321/B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MOLD CROWN COURT HIS HONOUR JUDGE ROGERS T2010/7167 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/03/2012 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE SILBER and MR JUSTICE MADDISON - - - - - - - - - - - - - - - - - - - - - Between : A Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - N Quinn QC and D Malone (instructed by Woodfines LLP ) for the Appellant A Levitt QC and Iain Wicks (instructed by CPS ) for the Crown Hearing date: 15 th February 2012 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is an appeal against conviction by A following her plea of guilty at Mold Crown Court on 15 th October 2010, to doing acts tending and intended to pervert the course of public justice, contrary to common law. For the sake of preserving her anonymity she has been identified by the media during these proceedings as “Sarah”. The particulars of offence alleged that between 7 th February 2010 and 30 th July 2010, with the necessary intent, she did a series of acts which had a tendency to pervert the course of public justice by making and pursuing false retractions of her complaints of rape against her husband. She was sentenced to 8 months imprisonment. The sentence was quashed in this court on 23 rd November 2010, and replaced with a non-custodial sentence. The judgment of the court is set out at [2010] EWCA Crim. 2913 . By the time the sentence was quashed, the appellant had already been in custody for 3 weeks, and her own personal position, as well as that of her four children, had become so uncertain and problematic that the court, as then constituted, believed that it would be of positive assistance to all of them to make a community based order, taking immediate effect. If the situation had been different, the likely order, given that the appellant had already been in custody for 3 weeks, would have been an order for conditional discharge. The appeal against sentence 2. Dealing with it very briefly at this stage, the prosecution of the appellant began with her complaint that her husband had raped her. In due course she withdrew that complaint. She then proceeded to assert and reassert that her complaint had been false. Proceedings against him were stopped. She was prosecuted for perverting the course of justice by making a false complaint of rape. In due course, having seen counsel and solicitor, she reasserted the truth of the original complaint. In due course, on 15 th October 2010, she faced two indictments at Mold Crown Court, both of which alleged that she had perverted the course of public justice. Although the statement of offence in each indictment was identical, the particulars of offence were mutually contradictory. The first indictment alleged that she had made and pursued false allegations of rape against her husband, the second that she had made and pursued a false retraction of these allegations. She pleaded not guilty to the first indictment, and guilty to the second. The Crown offered no evidence on the first indictment. She was acquitted by order of the judge and a “not guilty” verdict was entered. On 5 th November she was sentenced and shortly afterwards the sentence was quashed 3. The appellant was therefore convicted of making false retractions of a most serious allegation of sexual crime when she would otherwise have been in a position to assist the Crown to prosecute the perpetrator to conviction. On this basis she deliberately enabled her husband to escape justice for the crime of rape for which she was the victim. On both occasions when the case has been before this court, the prosecution has proceeded on the basis that the allegations of rape and domestic abuse suffered by the appellant at the hands of her husband were true. We shall proceed on the same basis. Nevertheless it is only fair to the appellant’s husband to record that he has consistently denied the allegations and has not had any opportunity publicly to challenge or refute them. 4. During the course of the judgment on her appeal against sentence, a number of observations were made in this court: “… a complaint that an individual has been the victim of crime is not, and never has been, merely a private matter between the complainant and the alleged perpetrator of the crime. Every crime engages the community at large. There is a distinct public interest in the investigation and, if appropriate, the prosecution and conviction of those who have committed crimes. … an unconvicted criminal is free to continue to commit crime and to add to the list of his victims, as well as to escape justice. Therefore, perverting the course of justice is not confined to making and pursuing false allegations or giving false evidence, which is always a very serious offence. It extends to the retraction of truthful allegations or the retraction of truthful evidence. …”. 5. Critical features of mitigation were then addressed: “The different between the culpability of the individual who instigates a false complaint against an innocent man and the complainant who retracts a truthful allegation against a guilty man will often be very marked. Experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it. Where a woman has been raped, and raped more than once by her husband or partner, the father of her children, the man in whom she is entitled to repose her trust, those very actions reflect, and are often meant to reflect, manifestations of dominance, power and control over her. When these features of a relationship between a man and a woman are established, it is an inevitable consequence that the woman who has been so ill-treated becomes extremely vulnerable. Of course it is better for a truthful complaint to be pursued, but if the proposal that it should be withdrawn is not accepted, leading to a positive retraction and admission that the original truthful complaint was untrue, and the complainant is then prosecuted to conviction, the sentencing court, when assessing culpability, should recognise and allow for the pressures to which the truthful complainant in such a relationship has been exposed, and should be guided by a broad measure of compassion for a woman who has already been victimised.” 6. The case attracted a good deal of understandable public interest, and indeed concern. It was reported in The Guardian newspaper on 16 December 2010 that the Director of Public Prosecutions, referring to the need of the Crown Prosecution Service to organise an improvement in their handling of retraction cases, and plainly referring to this particular case, said that he did not consider “justice was done or seen to be done”. Unsurprisingly Mr Niall Quinn QC on behalf of the appellant highlighted this comment, and used it to develop his submission that the conviction should be regarded as unsafe. 7. Thereafter, following a detailed consultation exercise, fresh Guidance was published by the Crown Prosecution Service. If this Guidance had been in force at the date of the appellant’s conviction, on the basis of the evidence that she had been raped and subjected to other domestic violence over a long period and that this had had a damaging effect on her health, she would, as Miss Alison Levitt QC for the Crown accepted, in all likelihood, not have been prosecuted. Mr Quinn suggested that it was not simply that a prosecution to conviction would have been unlikely, but rather, the appeal should be approached on the basis that she would not have been prosecuted at all. The appeal against conviction 8. The entire case has now been re-examined. The solicitors and counsel who acted on behalf of the appellant have provided the appellant’s new legal advisors with all the material available to them, and commented on the facts which confronted them. Further detailed instructions have been obtained from the appellant. A number of witnesses who support her account of the ill treatment to which she was subjected have provided statements. Recently she was examined by Roger Hutchinson, a consultant forensic clinical psychologist. Based on a rather developed account of events provided to him by the appellant herself, and, as far as we can see, without dealing with all the material available to us, he concluded that during the latter part of her relationship with her husband the appellant was experiencing post traumatic stress disorder, and that this condition persisted at the time when she retracted the allegations of rape, and indeed still continue. Based on this material Mr Quinn submitted that crucial evidence was not properly examined or considered before the appellant pleaded guilty, and that if it had been, she had a viable defence to the charge, in the form of duress and, initially at any rate, although it was rightly abandoned at the hearing of the appeal, marital coercion. The issue of duress in the form of the physical, sexual and mental abuse inflicted on her is at the heart of the appeal, and we shall examine the evidence closely, omitting a degree of Mr Quinn’s forensic overstatement from our analysis. Mr Quinn further suggested that all this material revealed that the decision to prosecute the appellant followed failings by everyone concerned in the process which culminated in the sentence imposed at Mold Crown Court, and constituted an inexplicable and inappropriate exercise of the well established prosecutorial discretion which required that she should not be prosecuted at all. In short, he submitted that if all the relevant facts had been properly considered the prosecution would not have gone ahead, or would have been stayed on application to the court. 9. For present purposes, we shall not distinguish between evidence which was available prior to conviction, and material relating to the period before conviction which has emerged subsequently, which we considered de bene esse. In the end, subject to the reservations expressed in the course of the judgment, we admitted the evidence. The facts 10. The narrative begins on 28 th November 2009 when the appellant reported that she had just been raped by her husband and had been raped by him on two earlier occasions. She was quickly relocated to the Women’s Refuge with her four children and he was immediately arrested. He denied the offence. On the following day she was video interviewed. She gave a detailed account of rape. He was interviewed and maintained his denials. He was then charged with rape and remanded in custody. On the following day she was video interviewed. She made detailed complaints. He, too, was further interviewed and maintained his denials. 11. On 30 th November the husband was remanded in custody by the Magistrates Court and the case was sent to the Crown Court. A few days later he made an application for bail to the Crown Court. This was refused. 12. On 10 th December a preliminary hearing took place at Mold Crown Court. Mr A was released on conditional bail, with a specific condition that he should not directly or indirectly contact any prosecution witness. 13. During the course of the police investigations the appellant was provided with support and assistance. She was assisted by the Montgomeryshire Family Crisis Centre and referred to Powys Social Services. She was in telephone contact with Victim Support. In connection with possible counselling, she was advised to seek assistance from her medical practice. 14. On 21 st December it was reported that the appellant wished to withdraw her allegation of rape against her husband. The police contacted Victim Support Service to establish whether any problems had been reported to them. The investigating officer was told that none had been mentioned. During the Christmas period there was something of a reconciliation. Sexual intercourse took place between the husband and wife. This was not rape, nor even reluctant acquiescence, but consensual sexual intercourse. It happened because, in her reported words, she “wanted” to. Throughout this period she must have been aware that her husband was in breach of the bail condition that he should have no communication or contact with her. The only realistic conclusion is that she connived at it. She now finds it difficult to explain her behaviour at this time. It does however provide the contextual background to the submission by Mr Quinn that there was a viable defence of duress open to the appellant. 15. On 7 th January 2010, the appellant contacted the police to withdraw her complaint. A further video interview was conducted with her. She made clear that she wished to withdraw her complaint of rape against her husband and that she did not want to attend court. She indicated that she wanted to put everything behind her and move forward for her own sake and the sake of her children. She did however confirm that her relationship with her husband had ended, and she confirmed that all of her allegations were true. It was explained to her that, even if she wished to withdraw the complaint, the case might still proceed and that if it did she might be required to give evidence. In answer to the specific question why she was withdrawing the complaint, the contemporaneous notes record that “(she) states that nobody has put any pressure on her”. She confirmed that she had “engaged with Victim Support and received emotional support. The Montgomery Family Crisis Centre has also been involved”. 16. On 14 th January, following a case conference to assess this development, the appellant was informed that the prosecution would proceed. She was invited to a meeting at Mold Crown Court on 18 th January when a plea and case management hearing was due to take place. The husband pleaded not guilty to the counts of rape and the trial was fixed for the week of 4 th May. In the meantime the appellant met the prosecution team at Mold Crown Court. She admitted to them that she had been in contact with her husband over the Christmas period. A signed statement outlining the contact which had taken place was obtained from her. She admitted that she had had sexual intercourse with him, consensually, on a number of occasions during the Christmas period, and she pleaded with the police not to arrest her husband, notwithstanding that he was in breach of his bail conditions, as this would make the situation worse. She said that everything had been done for her children so they could enjoy their Christmas. Her husband’s solicitor was informed of the breach of bail and told that in the circumstances, instead of arresting him, he would receive a warning. 17. On 23 rd January the appellant telephoned DS Whitgreave and said that she had received a series of abusive text messages from her husband. Later that day she sent the police officer a text message to the effect that she had had a very low day, having found out that her husband had been seen out with another woman. She went on that she had complained about her husband’s texting in order to “spite him”. There was no excuse for what she had done but it had been a “very tough few days” for her. She had calmed down and had time to think about it. She was sorry for having done something so stupid. When this text message was followed up by the police the appellant admitted that she had not received any text messages from her husband and that she had made up the story to get back at him. There were understandable police concerns about her reliability as a potential witness. 18. On 1 st February the husband was involved in a road traffic collision. It was believed that his front seat passenger was his wife. The collision occurred in an area from which he was excluded by his bail conditions, and obviously, his contact with his wife constituted a further breach. In view of the earlier warning, on 5 th February he was arrested and remanded in custody. 19. On 7 th February, while he was in custody, the appellant made her first false retraction. She telephoned the police asking to speak to the investigating officer, and when the officer telephoned her back, the first thing she said was “that’s it, it’s over what is going to happen if I now say I made it all up, I have lied about the rapes. I lied because Terry would not let me go and work in the place again, I wanted to work there as I liked the money”. She was referring to work in a massage parlour. 20. During this conversation the appellant was aggressive in her manner. The officer explained in clear terms that she needed to think very carefully about what she was saying. She had to be sure that what she was saying was in fact the truth. She said that she was not bothered about what happened to her and didn’t care if she was charged or dealt with for “whatever offence”. It was made clear to her that she could not get her own way. She was told that the CPS would have to be consulted and that when a decision had been made she would be told. She was informed that her husband would be at the Mold Crown Court on 9 th February in connection with his breach of bail conditions. 21. On 9 th February the husband’s application for bail was refused. On 11 th February the appellant attended the police station voluntarily, to tell the “truth” about the allegation. She said that the rape allegations were lies which she had made up. The police warned her of the potential seriousness having made false allegations of rape. She was given legal advice and cautioned. A solicitor attended the police station to represent and advise her. The appellant provided a written statement to the police. She maintained that her allegations were false. She explained her lies on the basis that her husband would not let her return to work in the massage parlour. There were financial pressures, and she felt she had to get back to work quickly and earn some easy money to try and sort out the debts. 22. Mr Quinn suggested that the explanation given by the appellant for her false story was such nonsense that an investigation by the police would have demonstrated that what she was saying was untrue. With respect, that is a little too easy: the entire prosecution case depended on the credibility of the appellant. Notwithstanding the clear warning she had received about the seriousness of her position this was the explanation that she chose to provide for her false allegations against her husband. She was later to repeat and amplify it. 23. On 12 th February the husband appeared at Mold Crown Court. The Crown offered no evidence against him. In the circumstances there was no alternative. Effectively that was the end of the rape allegation against him. There was no possible justification for remanding him in custody. 24. An investigation was now conducted into the offence admitted by the appellant, namely that she had made a false allegation of rape against her husband. On 16 th April she was arrested on suspicion of perverting the course of justice. A tape recorded interview in the presence of her solicitor took place. 25. The appellant said in categoric terms that she was never raped by her husband. She was asked to explain why she made the false allegations, and it is clear from the record of the interview which we have studied, that the police were sympathetic, and offered her every opportunity to deny that she had made a false allegation. They discussed whether her husband had put emotional pressure on her, whether she was concerned about the position of the children, and whether her support network was limited. She was questioned whether he had convinced her to go to the police and withdraw the allegation, and whether he had an emotional hold over her. She was asked whether she had received sufficient support from outside agencies. Even at that stage the police pointed out that if the allegations were true and what she was telling the police now, that is, that the retraction was the lie, she could still tell them about it. She was adamant. The allegations were untrue. She was responsible for them. She denied that she was withdrawing the complaint because of lack of support. 26. On 23 rd June the appellant was charged with perverting the course of justice on the basis of her false allegation against her husband. She was bailed. Her solicitor, Mr Sherrard, prepared her case. On 13 th July the case was sent to the Crown Court. It was listed for a preliminary hearing on 23 rd July. 27. Mr Sherrard, reflecting his own personal concern, said directly to his client that the police remained “unconvinced” that her original complaint was a false one. He believed that the police had charged her with the offence with some reluctance. In his letter to her, he noted that she appeared to be in full command of her faculties, and he advised her that the police were “supposed to work hard to punish those who make false allegations”, but they may also consider that they were “unfairly treating someone who was in fact a victim”. She was later advised in writing, that a custodial penalty would normally follow conviction for perverting the course of justice, but the ongoing relationship with her husband and children would be a significant factor in the sentencing decision. Shortly before her appearance on 23 rd July her solicitors wrote to the Crown Court to inform the court that they might be in difficulty on that date because she had failed to respond to letters. In explanation, they said that she was “extremely distracted by the turbulence in her life, to a very unusual degree, and she previously failed to keep in contact whilst on police bail, but nevertheless answered bail”. Mr Sherrard briefed Mr Gordon Hennell of Counsel. 28. The brief to Mr Hennell suggested that the officers involved in the case clearly believed that the allegations made by the appellant in November 2009 were true, and that they were guessing at the motive for her subsequent assertion that she had told lies. He was expressly instructed that it did however appear to be accepted “at least that there is no improper pressure from (the husband) upon her”. 29. Mr Hennell met the appellant for the first time on 30 th July. At first she told him that she planned to plead guilty to having made the false allegation of rape. Those were her instructions to him. If he had accepted them at face value she would have pleaded guilty to that charge. Mr Hennell was sceptical and advised her in detail and without equivocation. On direct questioning she admitted that she had indeed been raped. The allegations were true. The case was relisted for a preliminary hearing on 30 th July. Again Mr Hennell advised that if the allegation of rape was true, it would not be right to plead guilty, even if the appellant was under pressure to withdraw the allegations because she wanted to be with her husband. She needed to think about the position. She did not need to make any decision on that day. The advice that she should tell the truth was repeated in stark terms: “stick with the truth”. 30. Mr Hennell also advised her that a family lawyer should be instructed to consider a non-molestation order to prevent her husband contacting her and the children. 31. On 5 th August the appellant contacted the police. She said that she had come to her senses and that she had in fact been raped. In the meantime she consulted family lawyers and they prepared her sworn statement dated 16 th August in proposed proceedings for a non-molestation and occupation order at Welshpool County Court. In the statement the appellant asserted that she had been subjected to domestic abuse and had indeed been raped on three occasions. As to her reason for retracting her allegations to this effect, she said that her husband “persuaded” her to do so on the basis that if she did “any punishment (she) would suffer would be considerably less than that he would be subject to.” She added that her husband was able to control her. 32. On 31 st August she was arrested and, with her solicitor present, interviewed. Her account in this interview is not consistent with any possible defence of duress. She said that she had been told by someone, probably her husband’s sister, that if she said she had lied about the rape she would not go to prison, but as a single parent, would receive a suspended sentence. However she said that when she spoke to the barrister at court he had told her that she would receive a sentence of 12 to 18 months imprisonment. The significance of this became clear. She had decided to be truthful and to accept that she had lied when she had said that the rapes had not happened. She was asked why she had not turned to Victim Support. She said that she had, and that when she said to the lady in Victim Support that her husband had changed and was being very good with her, that he had altered and he was behaving very loving, she was advised to be very careful because he would revert to his old ways. She was asked the direct question why she felt she could not speak to the police, and she responded that she did not know. 33. In this interview she said: “the only reason why I said I’d lied and make it all up was because I had pressure put on me and I’d been advised by somebody that if I said I was lying, I wouldn’t be sent to prison because I am a single mum and I’ve got 4 children. That’s the reason why I said I was lying, because that’s what I presumed would happen. I was told I would get a suspended sentence as they wouldn’t put the kids in care”. 34. She was asked: “When Terry’s sister came up to the house, whose idea, who first started sort of suggesting things to try and help with the situation, because as you admitted, you weren’t sort of coping …” 35. The appellant replied “Well I thought about it, and I mentioned it to her on that day, and I said that the only thing that was holding me back is the fact that I am scared that if they arrest me, the kids and that’s when she said “don’t worry about the kids” …”. 36. She was asked whether anybody put her under pressure to phone that day and say that she had lied. She responded: “I don’t know whether it was pressure or not. Put it this way, Tracey wasn’t a regular visitor to the house and that visit was almost a bit out of the blue and I haven’t spoken or haven’t seen her since”. 37. She was asked directly whether her husband had put her under pressure to withdraw her allegations when she first did so. She responded: “We discussed it and our thinking was that if, because I had asked my solicitor how long do you think Terry would get inside and they said and I know Terry has told me this since, that his solicitor had said more or less, he’s get about 10 years, and serve half. Then we discussed about me ringing up and saying that I was lying and like he’d said and Tracey said as well, that it would be a suspended sentence for just like 2 or 3 months. And then me sitting there stupidly thinking right, what’s best for the kids, Daddy missing for 5 years or Mummy missing for 3 months and that’s where them, yeh, …”. 38. At this the interviewing officer interrupted and made an extremely pertinent observation: “So you say, “our thinking”,… ” 39. And she responded: “Sorry, me and Terry would sit down and discuss this and I remember saying to him “look, Mummy disappearing for 2 or 3 months is better than Daddy disappearing for 5 or 6 years”. And yeh, he wasn’t happy with the idea, but he didn’t stop me.” 40. At the same time, with her consent, her solicitor provided the police with a copy of the statement made by her in support of her non-molestation application, proceedings which had not yet been started. He believed that this account of the incidents of domestic violence would greatly mitigate her culpability. He suggested to the police that as everything they did was designed to assist victims and prevent what had actually happened (that is, the withdrawal of a true complaint)her personal circumstances made her “particularly vulnerable”. 41. On 16 th September the appellant was charged with an additional offence of perverting the course of justice by falsely retracting a true allegation of rape. Her solicitors obtained her authorisation to be provided with her medical records with a view to obtaining a psychiatric or psychological report for her at the Crown Court. 42. On 20 th September the appellant’s husband was arrested following an incident in which he, in effect, forced entry into her home at about 5.30 – 6.00a.m. She told her solicitors that she was not assaulted, but the “whole process put her in fear”. She called the police. He was arrested. The incident made her keen to pursue an application for a non-molestation order. She agreed to make a witness statement about the incident to the police. She was now very keen to stop him ever going back to the home. Thereafter her husband was remanded on bail, with conditions that he should not contact her, whether directly or indirectly. 43. In due course the appellant’s medical records were received from her doctor. Apart from a brief mention of post-natal depression some 7 or 8 years earlier, the solicitor could find no reference to depression or any other psychological or psychiatric problems, therefore he did not, as he put it “progress a medical report” into the appellant’s thinking during the relevant periods, at any rate until the issues had been discussed further with counsel. 44. On 14 th October a conference took place with counsel in his chambers. Advanced Disclosure made no mention of any investigation into pressure put upon the appellant by her husband and his sister. However on the basis of her own instructions, the appellant decided to plead not guilty to making a false allegation of rape, but guilty to making a false retraction of the allegation. Mr Hennell advised that this meant that there would be a much greater chance that a custodial sentence would be avoided. The proposed plea would be acceptable to the Crown. He advised on the evidence to be put together for the purposes of the Pre-Sentence Report. 45. On 15 th October at Mold Crown Court, in accordance with her decision on the previous day, the appellant pleaded not guilty to the first indictment and guilty to the second indictment. The prosecution offered no further evidence on the first indictment. A Pre-Sentence Report was ordered. The appellant’s solicitors sought information from the Crown Prosecution Service whether there had been any investigation of pressure placed on the appellant to retract the original allegation, and the state of the investigation into his actions when he forced entry into her home, that is, the incident on 20 th September. 46. On 28 th October the husband came to the appellant’s home. During his visit he attacked her. According to her report he dragged her outside by her hair and began to tear her clothes off. Much later she was to tell Mr Hutchinson that according to her husband she had ripped her own clothes off and caused some injury, and that when the incident was investigated the police told her that her husband would not be arrested as there were not enough physical injuries to her body. 47. The Pre-Sentence Report was completed on 4 th November 2010. This gives the appellant’s account of her marriage which was, from the outset, “turbulent”. The appellant described her husband as “controlling” and “violent”, and the relationship was marred by a history of abuse. Although she felt intimidated by her husband, she tried to keep up a normal façade for the sake of the children. According to her account she talked of extreme financial difficulties and gaining employment at a massage parlour to alleviate them. In order to deal with Mr Quinn’s contentions about the absurdity of accepting the “massage parlour” explanation she gave to the police, we must note that she told the writer of the report that her husband had “initially agreed to transport her to the employment; however the nature of the work caused immense difficulties between the couple … her husband’s attitude to her worsened and at every opportunity he degraded and tormented her in relation to the employment she had undertaken. He had also, against her will, informed her parents of the work she had ventured in to. … she left the employment after 2 days work.” Although she wished to escape from the marriage, she felt compelled to stay due to threats by him to harm himself if she left, the emotional strain and lack of finances and isolation. 48. The appellant’s explanation for the retraction of the allegation of rape was that after her husband had been arrested and remanded in custody she felt “immense guilt”. She decided that taking divorce proceedings would be “punishment enough for him” and so she withdrew the complaint. She was in an emotional state and very confused at the time. Although she had suffered years of abuse by her husband and was frightened of him she reported that “due to her feelings of guilt, low self esteem and wanting her children to have a family Christmas, she continued communicating with him”. She felt under “immense pressure” from her husband to retract her original statement and she had agreed to do so “due to fear of repercussions from him”. The reasons for the retraction were developed later in the report. The decision arose from “immense pressure” placed upon her by her husband. She also “felt the children should have regular contact with their father especially at Christmas”. This coupled with financial difficulties, lack of family support and isolation appeared to have contributed to “the retraction of the complaint”. She decided to lie to the police “without thinking of the consequences”. 49. This unprompted contemporaneous account by the appellant to the writer of the Pre-Sentence Report about the circumstances in which she came to make the false retractions of which she was subsequently convicted are, again, inconsistent with a defence of duress. 50. On 5 th November at Mold Crown Court the Pre-sentence Report and careful submissions on behalf of the appellant by Mr Hennell were considered before the appellant was sentenced to an immediate prison sentence. 51. In the context of the submission that the appellant was acting under duress when she retracted her allegations against her husband it is perhaps worth underlining what she herself has said in her recent sworn statement prepared for the purposes of the present appeal. 52. She reflected on the period between her husband’s release from prison on bail and her first lie to the police that “Sometimes he would be so upset that he appeared to be having a nervous breakdown. Thinking of it now it was all a bit over the top, but at the time it made me feel all the more sorry for him. Although he had done what he had done to me, by this time I was feeling responsible for all the upset and worries that he had about missing his children and being frightened of going to prison. The children were upset because they couldn’t see their father and it was basically all my fault”. 53. Later she said “… I had tried to withdraw the complaint but that the Prosecution wouldn’t drop the case. Tracey (her sister-in-law) asked quite calmly what would happen to me if I told the police it was all a pack of lies. I told her I wouldn’t do it because it would mean me going to prison and leaving my children, but Tracey said they wouldn’t put me in prison because I had 4 children … She was present when I made the telephone call to (the police)” 54. Later still, referring to events on 11 th February, she said: “I can only say that when I was in that mental state I didn’t think about what would happen to me but only if the case didn’t proceed Terry wouldn’t have to be in prison, my children would have their father back and I would have some help”. 55. She had said earlier that when he was away she had “simply felt lost without him”. She went on: “All I can say now is that I would have said anything at that time to make it all go away. I know it makes me sound quite calculating but I was really saying whatever I could to produce the result I wanted”. Miss Levitt suggested that on the appellant’s own present account, plainly she was under pressure, but the pressures were far removed from constituent elements of the defence of duress. We agree. 56. As we have noted, we were pressed with the contents of the appellant’s evidence in the non-molestation proceedings at Welshpool County Court. We shall simply record that in answer to her application, her husband produced a letter which he says was received by him while he was in custody, and therefore written before 12 th February, in which the appellant wrote to him: “I have done the one thing that you said not to do. I told you I would make it all go away and I will by doing what you said not to do. I want you home babe, we all miss you so much. I cry every night and every morning coz your not here”. The letter continues in affectionate terms. 57. We can now turn from the lengthy summary of the facts to the submissions advanced in support of the conclusion that the conviction is unsafe. Discussion The offence Perverting the course of public justice 58. Before the hearing of the appeal we invited submissions from both sides on the broad question whether the retraction of a true complaint could constitute the offence of perverting the course of justice. It was agreed that given proof of the necessary intention and the ingredients of the offence governed by the long standing decision in R v Vreones [1891] 1 QB 360 such conduct could indeed fall within the ambit of the offence. The conduct alleged and admitted went very much further than a witness withdrawing a complaint or withholding evidence of rape. Rather it involved repeated assertions which led directly to the acquittal of the man who had committed rape on more than one occasion. It was not suggested, and we can see no reason for concluding that in the context of the ingredients of this offence, the victim of a crime is entitled to be treated differently from any other witness to a serious offence who falsely retracts truthful evidence. In this context Miss Levitt emphasised that the issue was the defendant’s intention, not her motive, and that if the necessary intent was present the defendant’s motivation, particularly if she was a victim of the crime, was relevant and should be taken into account when the court was considering sentence, assuming that in the light of current CPS policy she was prosecuted at all. 59. In our judgment, it is plain that this conviction cannot be quashed on the basis that the appellant’s conduct did not fall within the ambit of the offence of perverting the course of public justice. The defence Duress 60. On the facts here the appellant had a complete defence to the charge based on the allegation that she had made a false complaint of rape against her husband. That defence was that the complaint was true. Mr Quinn submitted that it has now become apparent, and if the issue had been properly addressed before the appellant pleaded guilty, it would then have been apparent, that she also had a viable defence to the second indictment in the form of “duress”, and that she should have been advised accordingly. 61. Mr Quinn’s argument took as its starting point the observations in this court, when dealing with the appeal against sentence, which had underlined the specific problems which faced an abused partner. This was lent significant support, he submitted, by the vulnerability of the appellant as now revealed by the post conviction psychiatric evidence that she was at all material times suffering from post traumatic stress disorder at all relevant times. In this context care however is needed to avoid any juxtaposition between the former law of provocation in the context of section 3 of the Homicide Act 1957 , which provided Mr Quinn with a number of authorities to which he directed our attention, and the now seemingly endless debate about the true constituents of the characteristics appropriate to a defendant advancing that defence, and the defence of duress. 62. Duress is subject to clear limitations, and the thrust of recent decisions in the House of Lords has been that these limitations should not be further eroded. (See R v Hasan [2005] 2 AC 467 ). Although not directly relevant to the outcome of this appeal, in the context of duress, the situation of women who have been subjected to domestic abuse and are coerced into committing crimes against third parties has been valuably illuminated in the article by Janet Loveless, Domestic Violence, Coercion and Duress [2010] CLR 93, where the writer observes: “Leaving aside for the moment the contentious issue of whether an abused woman, even one suffering from BWS, remains a reasonable person or not, the problem of the law is how to translate the medical language of “learned helplessness, passivity and paralysis” into the legal discourse of duress. It is not simply that there is automatic equivalence between “learned helplessness” and “overpowerment of will”; the two are not the same”. The writer analyses the decisions of this court in R v Emery [1992] 14 Cr. App. R(S) 394 and Bowen [1996] 2 Cr. App R 157. She suggests that reference to characteristics such as post traumatic stress disorder or battered women syndrome “merely reinforces the inconsistency and reveals the incompleteness of the test which requires that the defendant shall have displayed “reasonable fortitude””. 63. All these considerations acknowledged, the question nevertheless remains whether on the facts here, and making the most generous allowance for the appellant’s psychiatric condition, duress might have provided a realistic potential defence. Miss Levitt emphasised, and we agree, that duress should not and cannot be confused with pressure. The circumstances in which different individuals are subject to pressures, or perceive that they are under pressure are virtually infinite. Such pressures may indeed provide powerful mitigation, as this court recognised when dealing with the appeal against sentence. Dealing with it very broadly, duress involves pressure which arises in extreme circumstances, the threat of death or serious injury, which for the avoidance of any misunderstanding, we have no doubt would also include rape, and which cannot reasonably be evaded. (See, for example, the approval of Graham [1982] 74 Cr. App. R 235 in Howe [1987] AC 417 in the House of Lords, and the restricted approach to this problem intimated in the House of Lords in Hasan , where Lord Bingham warned against drawing comparisons between the duress defence and any other defences which might widen the scope of duress.) 64. The contemporaneous evidence available to the appellant’s legal advisers, once she had decided to tell the truth provided a great deal of mitigation, but no viable defence of duress. That was not the case that she was advancing in her instructions to them, or for that matter in her accounts to the police, who were undoubtedly sympathetic to her situation, and did their best to dissuade her from withdrawing the allegation and then to find an explanation for her doing so. She did not suggest to any of them that when she falsely retracted her truthful complaints she was acting under the threat of serious ill treatment or violence at the hands of her husband or anyone else. The police interview on 16 th August is one of the crucial features of this case. By now, it must be remembered, the appellant was asserting that her husband had raped her more than once, and had treated her with violence, and that she was confirming the truth of her allegations against him. If she had been threatened by him with violence if she did not withdraw the complaint, as it seems to us, it is unconceivable that she would not have said so at the time. If she was asserting that he forced a retraction by raping her or threatening to rape her, there was no reason why she should not also have explained her retraction of the rapes by reference to any such threats. 65. We have recorded and shall not repeat the account given by the appellant of the history of her marriage narrated to the writer of the Pre-Sentence Report, prepared after she had already pleaded guilty, but before she was sentenced. This account, too, was quite insufficient to justify an application by her legal advisors for the court to allow her to vacate her guilty plea. 66. Even her most recent statement does not suggest that she was threatened with violence during this period, and in particular, at the time when she made her false retractions. We have set out her account in some detail in paragraphs 51-55. We immediately recognise that the appellant felt under huge pressure, but although feeling concerned for or even fearful of her husband, or a sense of guilt, or concern about what would happen to her children if her husband was in prison for 10 years or thereabouts, taken in combination, undoubtedly creates difficult problems and provides significant mitigation, does not constitute duress. It is unnecessary for us to examine the further problem of the alternative ways in which the appellant might have sought to avoid any such risk, not least, the favourable attitude of the police, who undoubtedly were anxious to give her every possible assistance. 67. The recent psychiatric report is based on an assessment made in December 2011 and January 2012. We have studied it in detail. The appellant’s account of why she retracted her allegations has developed. Nevertheless, even on this basis, the duress defence was not realistically available to her. According to the report she stated that at the time of retraction “she felt very guilty”. … “she believed instigating divorce proceedings was punishment enough and so decided to withdraw her complaint”. … “when Mr A had been released on bail he had contacted her”. … “she was in a very emotional state and was confused at the time and she was fearful of him as a result of the years of abuse she had suffered”. … “due to her feelings of guilt, low self-esteem and wanting her children to have a family Christmas, she continued communicating with Mr A.” … “she had been under immense pressure from Mr A to retract her statement and due to her fear of repercussions from her husband she had agreed.” 68. The conclusions proceed on the basis of the appellant’s account to the writer that the retraction was made as a consequence of her husband’s “continued abusive behaviour towards her after the allegations were made”. This, however, is inconsistent with any of the other accounts provided by the appellant. She referred to the visit of his sister, stating that: “She became very upset and told Mr A’s sister that she couldn’t cope without Mr A and the family needed him back. She states that at this point they planned to say the allegations were a lie.” 69. The report goes on to record that she said that “the reason she told police that the allegations were untrue is because of the immense feelings of guilt and worry and also the pressure from Mr A and what he would do to her if she did not sort the problem out.” 70. Notwithstanding Mr Quinn’s forceful and persuasive advocacy, we can see no basis for concluding that the appellant felt exposed to violence or the threat of violence when she made the false retractions on which her prosecution was founded. The defence of duress was not realistically available, and faced with the material now available, no responsible counsel would have advised her that the case should be contested on this basis. The plea 71. It was suggested in written and brief oral submissions that the guilty plea tendered by the appellant was an equivocal plea. The basis for this assertion was duress. No further basis for this argument appears. There is nothing in the material available to us to which suggests that the plea was equivocal. The decision to prosecute 72. This submission as developed, had a number of different facets, and we shall attempt to summarise the most significant features. It is suggested that a combination of errors before the appellant’s conviction was made by the police, the appellant’s legal advisors, the Crown Prosecution Service, and indeed the court. Although the errors were not made maliciously, and indeed in his oral argument, Mr Quinn accepted that he could not identify any specific area of professional incompetence, he submitted that the overall effect of the errors was that the appellant was prosecuted when, if they had not been made, the prosecution would not have proceeded. 73. In the context of the prosecution which took place, dealing first with the police, we can find nothing for which the police should be criticised. We have to be realistic. The allegation of rape depended on the appellant’s complaint. Her husband resolutely denied the allegations. The police were presented with a woman who they believed had been raped by her husband, but who was nevertheless determined to assert that the allegations against him were false. They made every proper attempt to dissuade her from retracting her allegations, without success. They sought to find an explanation, examining with her whether she had been forced by her husband to withdraw the allegations. They could not do more to help her avoid the consequences of her actions. They could not pressurise her into re-writing the script she was determined to provide, and indeed it is not beyond the bounds of imagination that they would have been criticised for being over forceful and lacking in sensitivity to the needs of a victim of rape who no longer wished to proceed with the allegations. Moreover once the case against her husband had been wholly undermined by the appellant’s first retraction and assertion that she had lied, the facts which might reasonably undermine her credibility would have been disclosed to her husband’s defence team. There was no alternative. In reality, he was only released from prison when his continuing detention in custody and his continued prosecution would have been unjustified. There was no longer any realistic prospect of success. At the same time, faced with a clear belief that the appellant was lying when she exonerated her husband of rape, the investigating officers were entitled to believe that he had escaped justice. That is not an irrelevant consideration. So they went as far as they properly could in interview in an endeavour to discover whether she had been subjected to threats. Their efforts were, because of the position taken by the appellant, unsuccessful. That does not found any justified criticism. 74. We turn to the appellant’s legal representatives. In our judgment she was well represented. The files show that both her solicitor and counsel were anxious that she should tell the truth. Her position if convicted of making a false allegation of rape would certainly have been far more perilous than if she were convicted on the basis of the retraction of a true allegation. The fact that she was immediately released from custody on her appeal against sentence amply establishes the value of the advice given by her legal advisors. If she had been convicted of making a false allegation of rape, the custodial sentence would have been longer, and wholly unappealable. 75. Specific criticism is directed at the failure by the legal advisors to seek a psychiatric report of the kind now available. For this purpose, Mr Quinn would presumably wish us to proceed on the basis of the accounts given to Mr Hutchinson by the appellant, rather than her accounts to the police, or indeed to the writer of the Pre-Sentence Report, and indeed her own account in this appeal. The question of medical evidence was addressed by the solicitors. They obtained the appellant’s medical records. On examination they could find nothing in them to suggest that there was or could be a psychiatric defence, not least because on the accounts the appellant was giving to the police and on her instructions to them, and her later account for the purposes of the Pre-Sentence Report, for the reasons we have given, no such defence was viable. Even now, as we have explained, the psychiatric evidence, properly examined, would not, in the light of the remaining evidence, provide a sustainable defence. Although this criticism is directed at the process which culminated in the conviction, as for the possible mitigation the report might have provided, the court considering the appeal against sentence did not need to be informed by psychiatric evidence. 76. Faced with these considerations, Mr Quinn submitted that if a psychiatric report of the kind now available had been presented to the Crown Prosecution Service it would, or might, have led the Crown to discontinue the proceedings in the light of the Code for Crown Prosecutors and the CPS for prosecuting cases of domestic violence. The general Code, while asserting the continuing value of the prosecutorial discretion not to prosecute, starts on the basis that a prosecution will normally take place unless the factors in favour of allowing the matter to be dealt with by an out-of-court disposal, such as the defendant’s illness, outweigh the public interest. In particular, however, the more serious the offence, the more likely that the public interest would require a prosecution. The Code also observes that although public interest factors in an individual case may argue against a prosecution, the prosecutors nevertheless should reflect whether these factors should not be put before the court after conviction, as mitigation of sentence. 77. In relation to domestic violence, the entire policy of the CPS acknowledges, as this court has, that many victims of domestic violence find it difficult to give evidence at court, and that they need practical and emotional support for this purpose. Sometimes the victim withdraws support for the prosecution and no longer wishes to give evidence. The policy requires all these matters to be addressed. The focus, however, is the withdrawal of support for the prosecution, not the fabrication of false retractions. That issue has been directly addressed as a result of the present case, but the new policy was directed to fill the gap in the existing CPS Guidance revealed by this case. 78. As it seems to us, Mr Quinn’s submission overlooks the seriousness involved of the offence committed by the appellant. If the allegation of rape was true, the appellant had deliberately and falsely and persistently chosen to exonerate the man who had raped her. The real issue for the Crown Prosecution Service was the form of perverting the course of justice which should be prosecuted, not whether there should have been any prosecution at all. In fact, Mr Sherrard on her behalf, advanced all relevant considerations arising from the police belief that she had been the victim of rape for consideration. We very much doubt that disclosure of a psychiatric report in terms of the present report but approaching the appellant’s accounts of events on the basis of those she was advancing during 2010 would have induced or persuaded the CPS to discontinue the prosecution. The reality is that such a report would have provided ample mitigation, (but for the reasons given in our judgment in the appeal against sentence, this was obvious). Given the way the investigation had developed throughout 2010 up to and including the interview on 31 st August, many competent legal advisors would have seen no advantage to their client in disclosing it to the prosecution. In any event, however, the report was not obtained, and we fully understand the reasons why it was not, and the reasons why, if it had been obtained, it would still not have been disclosed to the prosecution. 79. Miss Levitt accepted that if the most recent CPS Guidance about the approach to be adopted to cases where truthful allegations are retracted by the victim of rape or domestic violence had been in existence at the time when the appellant pleaded guilty, she would not have been prosecuted. This Guidance followed the expression by the Director of Public Prosecutions of his view on this particular case. Miss Levitt did not accept that there had been an abuse of process or, that if all the steps suggested by Mr Quinn had been taken, a stay of proceedings would have been ordered. 80. We agree. We have detected the development of what may, if not arrested at an early stage, become a new form of satellite litigation, in which the exercise of the prosecutorial discretion is made subject to a judicial review or abuse of process/stay of proceedings argument in the Crown Court. 81. As to judicial review, there can, we suggest, be very few occasions indeed when an application for permission by or on behalf of a defendant should not be refused at the outset on the basis that an alternative remedy is available in the Crown Court. This is the appropriate tribunal for dealing with these questions on the rare occasions on which they may arise. Precisely the same considerations apply to a case involving summary trial. 82. This principle is well established. In R v Director of Public Prosecutions , ex parte Kebilene [2000] 2 AC 326 , the House of Lords allowed an appeal from the decision of the Divisional Court presided over by Lord Bingham CJ on the basis that the decision of the Director of Public Prosecutions to consent to a prosecution was correctly addressed in the Crown Court as part of the ordinary criminal process. Lord Steyn, with whom Lord Slynn of Hadley and Lord Cooke of Thorndon agreed, observed: “… I would rule that absent dishonesty or mala fides or an exceptional circumstance the decision … to consent to the prosecution of the applicants is not amenable to judicial review. Whilst the passing of the Human Rights Act marked a great advance for our criminal justice system it is in my view vitally important that, so far as the courts concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal”. Lord Hobhouse was equally trenchant. “If the substance of what it is sought to review is the answer to some issue between the prosecution and defence arising during a trial on indictment, that issue may not be made the subject of judicial review proceedings.” R (E) v DPP [2012] 1 Cr. App. R 6 is for the reasons set out in paragraph [85] wholly exceptional: if E’s case had stood alone judicial review would not have provided an appropriate remedy. 83. There is, however a much more fundamental issue involved than the correct form of process. It is elementary, but it has become necessary to emphasise, that Guidance issued by the Director of Public Prosecutions does not and, as a matter of law cannot, create any immunity or defence. The guidance and any policy documents publicly reflect the considerations which, in an individual case of the kind under consideration, are considered to be relevant to the exercise of the prosecutorial discretion not to bring an individual case to trial notwithstanding admissible evidence which would otherwise justify a prosecution. If, however, this exercise has been conscientiously undertaken, the sole question for the court is whether the offence has been committed. It is not the function of the court to substitute its own view for that of the Crown about whether there should be a prosecution. The well known general observations of Lord Salmon in DPP v Humphrys [1977] AC 1 , at 46, apply here as in any other case of suggested abuse of process. “I respectfully agree … that a judge has not and should not appear to have any responsibility for the institution of prosecutions, nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to invervene.” The court is not powerless. In an appropriate case an order for absolute or conditional discharge will convey its distinct message. 84. Grounds for a stay on the basis of oppression or misconduct are exemplified in ex parte Bennett [2994] 1 AC 42, Mullen [2000] QB 520 and Early [2003] 1 Cr. App. R 19 . Occasionally, too, the exercise of this jurisdiction may be justified in a case where the prosecution constitutes an infringement of this country’s international obligations (see, for example Asfaw [2008] 1 AC 1061 (where the international obligation was reflected in statute) and LM and Others [2010] EWCA Crim. 2327 , (subject to the qualifications in paragraphs [13]. [19] and [21]). In summary, when it is sought to advance an argument for a stay by reference to policy or guidance issued by the Director of Public Prosecutions, by way of emphasis it is worth repeating, first, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions. Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute. Third, the decision whether or not to prosecute in most cases requires a judgment to be made about a multiplicity of interlocking circumstances. Therefore even if it can be shown that in one respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there was an abuse of process. Indeed, it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance. 85. A further aspect of the trend currently under discussion is exemplified by Mr Quinn’s submissions in this appeal. In essence, his argument is that if everyone involved in the case had behaved differently, then the appellant would or might not have been prosecuted at all. In short, in the present case, the overall effect if all those concerned, fulfilling their different responsibilities, had behaved differently would have been the discontinuance of the prosecution. However the unavoidable reality is that the discretion whether to prosecute or not is exercised, and can only be exercised by the CPS on the basis of the information available to it. After conviction it is unrealistic for fresh legal advisors to attempt to reconstruct a different series of facts or events which might have led the CPS to reach a different decision, or on that basis, to require the CPS to re-examine what the decision might have been if a series of hypothetical but different facts had been in contemplation at the time when the decision to prosecute was taken, or the defendant was convicted. 86. Miss Levitt does not accept that any contravention of prosecutorial policy or guidance in existence at the time when the appellant was convicted has been established. In short, she rejects the suggestion that there was some unreasonable disregard for or unjustified or inexplicable disapplication of existing prosecutorial policy. We agree. A prosecution which did not constitute an abuse of process at the date of conviction cannot acquire that characteristic, on the basis of new or amended prosecutorial guidance or policy subsequently issued. 87. In the end, the final submission comes to the proposition that it is somehow not fair for the appellant to remain convicted. Basing herself on the observations of the DPP in the aftermath of the successful appeal against sentence, and the consequent issue of new or amended policy guidance for use in cases of this kind, Miss Levitt adopted a neutral approach to it. The problem can be readily understood. The principles relating to abuse of process have not extended to, and it would be surprising if they had extended to, enabling this court to quash a conviction on a broad, somewhat nebulous basis of unfairness where the conviction, following due process, is in every respect safe. If so, it cannot be quashed. 88. The reality of this case is that the appellant was undoubtedly guilty of a serious crime, from which police officers did all they reasonably could to dissuade her. Compassion for her position, and indeed for any woman in the same or a similar position, should have produced a non-custodial sentence. That is why this court acted speedily to quash the custodial sentence and replace it with a community order which would offer practical assistance to the appellant in the immediate aftermath of her release from prison. The court also expressed itself in clear and direct language, which was immediately considered by the Director of Public Prosecutions, who has now issued fresh guidance about how cases involving false retractions of true allegations by vulnerable defendants will be addressed in the future. All that acknowledged, we cannot dispense with or suspend the statute, or grant ourselves an extra statutory jurisdiction. Accordingly, we are not entitled to interfere with this conviction. The appeal must be dismissed.

```yaml citation: '[2012] EWCA Crim 434' date: '2012-03-13' judges: - MR JUSTICE MADDISON ```

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 2749 Case No: 2003 06693 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NEWCASTLE-UPON-TYNE CROWN COURT MR JUSTICE HARRISON Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/11/2006 Before : LORD JUSTICE RIX MRS JUSTICE COX DBE and SIR MICHAEL WRIGHT - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Michael Robson Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Turner QC & Mr Keir Monteith (instructed by Messrs Mclarty & Co Solicitors ) for the Appellant Mr Benjamin Nolan QC (instructed by the Crown Prosecution Service ) for the Prosecution Hearing dates : 29 June & 16 October 2006 - - - - - - - - - - - - - - - - - - - - - Judgment This is the judgment of the court : 1. On 7 June 1995 the applicant, Michael Robson, killed his friend, Robert Williamson, by stabbing him in the stomach with a knife. Not long after, following a row with his sister, Lisa, he lashed at her face with the knife, almost severing her nose. He was arrested about 15 days later and spent the time up to trial on remand. In October 1996 he faced trial in the Crown Court at Newcastle-on-Tyne before Harrison J and a jury for the murder of his friend and the wounding (with intent) of his sister, and on 14 October 1996 was convicted of both. He was sentenced to life imprisonment, with a concurrent sentence of 5 years for the section 18 offence. A specified period for the purpose of the life sentence was increased by the Lord Chief Justice from 11 years (the recommendation of the judge) to 14 years. 2. We are here concerned with a renewed application, made on 20 November 2003, some seven years out of time, for leave to appeal against his conviction of murder: on the ground that the judge misdirected the jury on the defence of diminished responsibility. 3. At his trial the applicant did not deny the killing of his friend, but ran a number of defences which included diminished responsibility and provocation. 4. The defence of diminished responsibility, the burden of which is on the defendant, and which if accepted reduces a liability for murder to one of manslaughter, is contained in section 2(1) of the Homicide Act 1957 , which provides: “(1) Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.” 5. The law on the correct way to direct a jury on diminished responsibility in the context of evidence of drink has suffered a significant change since the trial, as a result of the decision of the House of Lords in R v. Dietschmann [2003] UKHL 10 , [2003] 1 AC 1209 . 6. Prior to Dietschmann the course of jurisprudence as to how juries should be directed where there was evidence both of an abnormality of mind and of the disinhibiting effect of drink had not run smooth. The history is set out in the speech of Lord Hutton in Dietschmann . Suffice to say that at the time of the applicant’s trial in 1996 the then current approved direction, based on the decisions of this court in R v. Atkinson [1985] Crim LR 314 and R v. Egan [1992] 4 All ER 470 , emphasised that drink, where a contributory factor, could undermine a defence of diminished responsibility even where the defendant was suffering from an abnormality of mind and even where that abnormality might be thought to have been the or a substantial cause of the homicide and in any event to have substantially impaired the defendant’s mental responsibility, despite the involvement of drink. Thus Atkinson and Egan adopted as correct two questions which came to be known as the “Smith questions”, formulated by the late Professor Sir John Smith in his comment in [1984] Crim LR 554 on R v. Gittens [1984] QB 698 , where he said: “It may be, however, that the jury will be of the opinion that, if the defendant had not taken drink or drugs, he would not have killed at all. In that case, it appears that the defence would not be open. The jury were certainly directed to that effect in R v Turnbull and the Court of Appeal did not disapprove of that direction: ‘Have the defence satisfied you that it is more probable than not that Turnbull would have acted as he had on this night even had he not taken drink?...If…you did take the view…that if he had not had drink this would not have happened, then the defence would have failed to prove that the abnormality of mind substantially diminished Turnbull’s responsibility for the act in killing.’…So the two questions for the jury, in logical sequence would seem to be: ‘Have the defence satisfied you on the balance of probabilities – that, if the defendant had not taken drink – (i) he would have killed as he in fact did? And (ii) he would have been under diminished responsibility when he did so?’” 7. In Atkinson and Egan this court approved those two questions. In due course a direction based on those two questions became part of the standard recommended directions to be found in the JSB Bench Book. 8. In Dietschmann , however, the House of Lords held that the Smith questions were a misdirection and reverted to what this court had actually decided in R v. Gittens , where it had approved the direction in R v. Fenton (1975) 61 Cr App R 261 and disapproved the direction in R v. Turnbull (Launcelot) (1977) 65 Cr App R 242 . In the upshot, Lord Hutton, with whose speech the other members of the House agreed, said that a jury should be directed along the following lines (at para 41): “Assuming that the defence have established that the defendant was suffering from mental abnormality as described in section 2 , the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant’s mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him.” 9. Since Dietschmann the JSB Bench Book’s standard direction has been revised accordingly. 10. The effect of this jurisprudence for appeals, post Dietschmann , based on the pre Dietschmann direction, where the notice of appeal concerned is substantially out of time, was considered by this court in R v. Hendy [2006] EWCA Crim 819 (12 April 2006, unreported). The circumstances of that appeal had similarities with the present case. In Hendy , the defendant was convicted of the murder of a friend in 1993, unsuccessfully raised a defence of diminished responsibility, did not give evidence himself but called medical experts to support that defence. Drink was involved. The Crown called further medical experts to rebut the defence on the basis that the defendant suffered no abnormality of mind. They also said that drink was the trigger for the killing. No transcript of the summing up survived, but the trial judge’s written questions for the jury on the subject of diminished responsibility had survived and they were in the form of the Smith questions. It was common ground that if the law at the time of trial was as explained in Dietschmann , then the judge had misdirected the jury and that misdirection was such as to render the verdict of murder unsafe. The issue was whether the law in Dietschmann was “new law” or “old law”, ie represented the law as it always was. The importance of the issue was that, if it was “new law”, then the principle applicable to applications for leave to appeal brought out of time on the premise of a change of law would have led to the refusal of an extension of time to accommodate Hendy’s application, which had been made in July 2004, some 11 years out of time. However, this court held that the Dietschmann direction was “old law”. 11. Gage LJ, giving the judgment of this court, said: “35. In our judgment it is clear from those passages in the speech of Lord Hutton that he was not stating any new principles of law on this topic. In our opinion he was doing no more than re-stating what the law was before the Court of Appeal incorrectly approved the two questions raised by Professor Smith following the judgment in Gittens . It is, in our judgment, relevant to note that Lord Hutton started with a reference to s.2(1) of the Homicide Act 1959 the meaning of which he said was clear, he went on to approve the judgment of Lord Lane in Gittens on the basis that it was consistent with his construction of that subsection. We have reached the conclusion that the law on this topic as explained in Dietschmann was not “new law”…It follows that the direction given by the judge was wrong and that the verdict of the jury was unsafe. 36. We should add that we were not impressed by Mr Pringle’s floodgates submission. It would in our judgment have been unjust and unsatisfactory if we had been driven to dismiss the appeal on the basis that although the verdict of the jury was unsafe on the law as it now is, it would have had to have been dismissed on the basis of the law as it was understood in 1993. However, on the conclusion that we have reached on the issue, as it has been presented to us, this does not arise. Notwithstanding the long delay since trial we extend time for the appellant to seek leave to appeal. We give leave on this amended ground and the verdict of the jury will be quashed.” 12. In the present case, the only relevant difference for our initial and present purpose of considering whether to extend time for the applicant to seek leave to appeal, before we approach more closely the particular facts of his trial, is the submission made on behalf of the Crown by Mr Ben Nolan QC that, in the absence of a surviving transcript of the judge’s summing up and in the absence also of any other material (such as the draft directions in Hendy ) from which his diminished responsibility direction can be ascertained, this application is doomed because no misdirection can be established. In that respect, however, Mr Nolan acknowledged the force of the submissions advanced by Mr Turner QC on behalf of the applicant, that there was substantial material, both in the pre- Dietschmann JSB Bench Book, and in the recognition in Hendy (at para 26) that after Atkinson and Egan and before Dietschmann “judges have invariably…directed the jury in the same way as the judge did in this case”, and in the nature of some of the Crown’s cross-examination in the applicant’s trial (see below at paras 26/27), that the parties anticipated and the judge delivered a direction along the line held to be a misdirection in Dietschmann. 13. We accept Mr Turner’s submissions in this respect. Therefore we would extend time here to apply for leave to appeal, and give leave to appeal, and we treat the submissions we have heard as given on appeal. The essential facts 14. Despite the absence of a surviving transcript of the summing-up it has been possible to reconstruct the facts from notes, including the judge’s notes, of the testimony of witnesses, as well as from what the appellant, as I shall now call Michael Robson, told the various doctors who were called as witnesses at the trial. The appellant himself, like the defendant in Hendy , gave no evidence. The experts’ reports survive intact. 15. The essential facts, however, can be stated quite quickly. At about 7.30 pm on 7 June 1995 the appellant, in a violent and distressed state, was walking in the street with another man when he came across Robert Williamson, described as a good, or even his best, friend, sitting in the passenger seat of a van next to its driver. The appellant had drunk up to half or thereabouts of a bottle of vodka and a pint of cider. He had had little to eat during the day. He had become upset and depressed by a number of incidents, and was suicidal. The appellant, seeing Williamson, beckoned to him, saying that he wanted to have back the gun which Williamson had taken off him earlier in the day and with which the appellant had been threatening to commit suicide. The appellant’s reaction was to produce a large knife with a serrated edge from his coat pocket and thrust it in Williamson’s face through the van window. Williamson pulled away in the direction of the driver to avoid injury but the appellant stabbed him in the stomach. He died shortly afterwards. 16. The appellant went with the man with whom he had been walking back to that man’s girlfriend’s home, where he found his, the appellant’s, sister, Lisa. They were very fond of one another, and he had been living with her and her family. They had a row, in the course of which she told him that she did not want him living with her anymore. The appellant slashed her face. 17. The appellant at the time of these events was 24 (or possibly 21, two dates of birth are found). He had a poor criminal record. The psychiatric evidence 18. Three consultant forensic psychiatrists gave evidence for the defence (Dr Kim Fraser, Dr Kenneth Davison, and Dr H A McClelland) and two for the prosecution (Dr R C Gibb and Dr Don Grubin). Each had produced a psychiatric report. 19. Dr Fraser in his report recorded the appellant telling him that his personality changed when he was 19, when his mother died. He began to bottle things up, and became depressed. He suffered a depressive relapse a year later on the death of his brother. He first started to think of suicide then, and resorted more heavily to alcohol and drugs. In December 1992 he had made a suicide attempt, as he saw it, with pain-killers, as a result of a break-up with his then girl-friend. There was another such attempt in March 1995, for the same reason. Robert Williamson was a good friend: they saw each other most days, and there had never been any trouble between them. The night before the killing he had been high on cocaine. On the afternoon of the killing he had earlier had a pint of cider and later drunk about three-quarters of a half bottle of vodka and was “pleasantly drunk”. He had had a row with his sister and smashed his bedroom door, then gone out for a walk. When he returned, he found his girl-friend’s parents asking for their daughter, Emma (who was 17), to leave him. He felt provoked, and ripped his shirt off (in a show of aggression). Emma left with her parents. He blamed his sister for letting them know where Emma was. He became suicidal. He wanted to shoot himself. He went out again, and that was when he came across Williamson. He saw a gun in his hand but did not remember what happened next until he was with his sister again. A further row led to her saying “It’s you I want rid of”, and he snapped and slashed her. 20. Dr Fraser’s conclusions were that at the time of the killing the appellant was suffering from a number of depressive symptoms not amounting to a depressive illness. However, in the hours leading up to the killing a number of situational factors, namely the departure of his girlfriend and the belief that his sister had betrayed him led to an acute stress reaction , an abnormality of the mind, to which he was particularly vulnerable by virtue of past experiences and which in her opinion substantially impaired his mental responsibility. 21. Dr Davison in his report recorded a similar account, also mentioning the deaths of a maternal grandmother in 1992 and a paternal uncle (by suicide) in 1995. Dr Davison’s conclusions were that, against the background of a dissocial personality disorder (indicated by his frequent offending, random violence, difficulty in maintaining relationships and lack of interest in working) and a reactive depression (aggravated by drug and alcohol abuse), the appellant had suffered an acute stress reaction brought on by the loss of his girlfriend, and his thoughts of his sister’s betrayal. All three conditions were mental disorders and it was the combination of them which substantially impaired his mental responsibility, with a causal contribution from alcohol intoxication and drug withdrawal. 22. Dr McClelland reported in similar vein. In his opinion the appellant was tormented by intense emotion, and thus aggressive under pressure, subject to depressive moods (but not a sustained depressive disorder) and morbid jealousy. His self-control was weakened by drug and alcohol intake. The vodka would have increased his mental instability but was not the essential factor. Following the departure of his girlfriend, he entered on a sustained state of rage, seriously contemplated suicide, killed his longstanding friend without cause and slashed his sister, with whom he lived and with whom he was bonded. He agreed with the diagnoses of both Dr Fraser and Dr Davison: the appellant suffered from a dissocial personality disorder and, at the time of the killing, an acute stress disorder . His abnormality of mind was such as substantially to impair his responsibility. 23. The Crown’s experts rejected these diagnoses. Dr Gibb gave an account which was consistent with that of the defence psychiatrists, but he came to a different conclusion. He recorded the appellant’s description of himself as quick tempered and easily roused to violence and possessive towards girlfriends. He described the appellant’s alcohol and drug misuse. The appellant presented as pleasant and communicative, did not appear to be depressed, and was without evidence of psychosis. At the time of the offences he was low in mood and upset, aroused and irritable, but was not suffering from a mental illness such as depression. Dr Gibb rejected a diagnosis of acute stress reaction on the ground that that required exposure to an exceptional mental or physical stressor: whereas the supposed stressor, the trouble with his girlfriend, was not particularly unusual given his past history of unstable and turbulent relationships. Rather, his self-reported mood swings, past history of self-harm, irritability and poor anger control were best considered to be features of his personality, enhanced by chronic substance misuse: but did not amount to a dissocial personality disorder , which required callous unconcern for the feelings of others and other characteristics which the appellant did not exhibit. He suffered from no abnormality of mind. 24. Dr Grubin came to somewhat of the same conclusion. There was no evidence of any current mental illness. As for the time of the offences, against the background of a history of antisocial behaviour, alcohol and drug abuse, and violence, he experienced periods when he was low in mood and irritable, but was not depressed or suffering from any form of mental illness. The night before he had been using cocaine and amphetamines and on the afternoon in question had drunk “a large but indeterminate amount of vodka” and had little to eat. He had become highly aroused and angry. The diagnosis of acute stress reaction was rejected on the ground that he was already aroused, agitated and paranoid before the arrival of Emma’s parents – “the role of alcohol appears to have been crucial and cannot be underestimated”. The diagnosis of dissocial personality disorder was also rejected on the basis that, despite behaviour which could be indicative of an underlying personality disorder, his lack of callousness, his clear concern for others and his capacity to feel guilt were inconsistent with the illness. In sum, at the time he “was in an enraged state caused by alcohol. He has acted similarly in the past after consuming alcohol. In so far as this can be considered an abnormality of mind, I do not believe that it was sufficient to impair his responsibility…” 25. In the circumstances it might be said that Dr Grubin’s rejection of an abnormality of mind was not unequivocal. Alcohol and drug abuse, also stressed by Dr Gibb, was used as a reason for rejecting diminished responsibility. Cross-examination of the defence psychiatrists 26. Certain passages in the cross-examination of the defence psychiatrists are consistent with the Crown’s anticipation of a direction on diminished responsibility along the lines of the Smith questions. Thus Dr Fraser agreed that Dr Gibb and Dr Grubin attached a lot of importance to alcohol and substance abuse; and said that the cocaine could have led to actions which the appellant “may not have undertaken had he not had the drugs”. Dr Davison said that “in terms of law” drink and drugs were pivotal; and agreed that they made the appellant’s actions more likely, albeit they could still have occurred without them. Dr McClelland agreed that drink and drugs were contributing factors, and even that despite the appellant’s vulnerable personality he would not have killed without them. 27. In the light of that evidence, it is not perhaps surprising that the jury did not accept the defence of diminished responsibility and returned a verdict of murder. The pre Dietschmann direction would have left them little option to do otherwise. New evidence 28. For the purposes of this appeal, both the appellant and the Crown have commissioned new reports. The appellant has obtained a report dated 11 August 2005 from Dr Frank Farnham, a consultant forensic psychiatrist, and the Crown has obtained a further report dated 31 October 2005 from Dr Grubin, one of the two psychiatrists who gave evidence for the Crown at trial. Each of these has responded to the other by means of a supplementary report, dated 6 and 28 February 2006 respectively. 29. The history of this is as follows. On 1 February 2005 this court (Gage LJ, Jack J and Sir Douglas Brown) adjourned the appellant’s renewed applications for an extension of time and for leave to appeal to allow the Crown to be present. On 11 July 2005, at a directions hearing, this court (Lady Justice Smith DBE, Nelson J and Henriques J) granted the appellant a representation order to obtain a further psychiatric report from Dr Farnham. Dr Grubin produced his further report in response, and, as we have said, there were supplementary reports from both. Each side has served applications to introduce the respective reports as fresh evidence. 30. Dr Farnham’s reports conduct a full review of the medical and other evidence at trial. For the purpose of his supplementary report, he had the opportunity to interview the appellant at HMP Ackington on 6 January 2006. In that supplementary report he considered in particular the question of diminished responsibility from the point of view of the interrelationship of mental disorder and drink and drugs in the light of the Dietschmann direction. Dr Grubin has not interviewed the appellant again, but both psychiatrists have reviewed the appellant’s prison records. 31. In his first report Dr Farnham concluded that the appellant was suffering from an abnormality of the mind at the time of the killing. He diagnosed that abnormality as a personality disorder, best described as either a dissocial personality disorder or a borderline personality disorder and sharing features in common with both, and thus also described as a mixed personality disorder . There was the further possibility of a discrete depressive illness . As for drink and drugs, he concluded that such illness or illnesses were in themselves sufficient to have caused his behaviour without the disinhibiting effects of drink or drugs. In his supplementary report, Dr Farnham said that the trial psychiatrists were “well placed to assess his mental state at the time of the killing compared to an assessment some ten years later”: he would confirm such a diagnosis of personality disorder, even if he analysed it in somewhat new, albeit overlapping, terms. As for the prison records, it was accepted that the appellant’s progress over the last ten years has not tended to confirm the diagnosis, but it has not negated it either, and on the whole had reinforced it. 32. Dr Grubin, on the other hand, in his first new report recorded his opinion that the appellant had not been suffering an abnormality of the mind at the time of the killing and therefore the question of the interaction between abnormality of mind and alcohol did not arise. In both those respects, Dr Grubin’s opinion had developed somewhat from his report for trial. In his brief supplementary report, Dr Grubin said that he remained unconvinced of the diagnosis of personality disorder. 33. In the preparations for this appeal, it was the appellant who appears to have made the running for the admission of new evidence; whereas on this appeal itself, Mr Turner eschewed reliance on Dr Farnham, did not seek the admission of his reports, and opposed the Crown’s attempts to introduce Dr Grubin’s new reports. 34. We have heard conflicting submissions on this topic. In the end, however, we have not been persuaded that we should admit this new evidence. We have, of course, been referred by Mr Nolan to section 23 of the Criminal Appeal Act 1968 , which provides as follows: “(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice – … (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to – (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” 35. Mr Nolan submits that, despite the emphasis on evidence which may afford any ground for allowing the appeal to be found in sub section (2 )(b), the section also permits the receipt of evidence from the Crown in support of upholding a conviction: the terms of subsection (1) are quite general. Mr Turner does not in principle dispute that possibility: it has occurred, at any rate in rebuttal, where incontrovertible DNA evidence has become available to support the safety of a conviction. Mr Nolan submits that this is another such case where new evidence on behalf of the Crown should be admitted in the interests of justice. The prison records only became available after conviction; and this court should not approach this appeal in artificial or blinkered ignorance of the full picture. Mr Turner, however, referred us to R v. Pendleton [2001] UKHL 66 , [2002] 1 WLR 72 , [2002] 1 Cr App R 34 to support his submission that, in the light of the evidence given at trial, the Crown’s new evidence could not render safe a conviction flawed by a misdirection on diminished responsibility in relation to the relevance of drink and drugs. 36. In Pendleton Lord Bingham of Cornhill said this: “17. My Lords, Mr Mansfield is right to emphasise the central role of the jury in a trial on indictment. This is an important and greatly-prized feature of our constitution. Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second. The Court of Appeal is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury’s deliberations and must not intrude into territory which properly belongs to the jury… 19…It would, as the House pointed out [in R v. Stafford [1974] AC 878 ], be anomalous for the Court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. I am not persuaded that the House laid down any incorrect principle in Stafford , so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford and by Mr Mansfield in this appeal does have a dual virtue…First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case in it at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.” 37. What Lord Bingham said there was said in a case where the appellant sought, by the means of new evidence, to upset a conviction at trial. However, it seems to us that essentially similar principles also apply where it is the Crown which seeks to say that a conviction should be upheld as safe on the ground of new evidence, despite considerations which would otherwise cause this court to weigh very carefully the safety of the conviction. That would be to get this court to act as a primary decision-maker. Thus it was that Mr Nolan submitted that the importance of Dr Grubin’s new evidence was that it made it reasonably speaking impossible to conceive that the jury might have decided differently on the question of diminished responsibility. 38. In our judgment, however, Dr Grubin’s new evidence is not of that kind. It is at best simply further evidence to throw into the scales, to add to the evidence of the five psychiatrists which were already before the jury at trial. In as much as Dr Grubin was one of those five, it is simply a further assessment of his, which, although based in part on new material deriving from the prison records, was in one sense always available to him. Moreover, his conclusion in his new records does not so much confirm his trial evidence as produce a developing diagnosis. 39. In these circumstances, and, mindful that if the evidence of Dr Grubin had been admitted, it would have been necessary in fairness to the appellant to have admitted Dr Farnham’s new reports as well, we have concluded that the path down which the Crown was inviting us to go would have been the illegitimate one of seeking to second guess the trial jury as primary decision makers of fact. This is a fortiori the case where the evidence in question is seeking, ten years down the line, to make an ex post facto assessment of the appellant’s mental state at the time of the killing. The safety of the conviction 40. Ultimately, therefore, the question that arises is whether the conviction is safe in the light of Dietschmann and Hendy . In our judgment, it is not. We are unable to distinguish this case from Hendy . It was common ground between the Crown and the appellant in that case that the judge’s misdirection was such as to render the verdict of murder unsafe (at paras 25 and 36). We agree. Despite the circumstance that the burden of the defence of diminished responsibility lay on the appellant, and despite the fact that here, as in Hendy , the appellant did not give evidence at his trial, we readily conclude that, if the jury had been correctly directed in accordance with the Dietschmann direction, it may well have been persuaded that the appellant was suffering from an abnormality of mind that, despite drink or drugs, had substantially impaired his mental responsibility. For all we know, the jury here had been persuaded by the evidence of the three defence psychiatrists at trial that the appellant had been suffering from an abnormality of mind, but were not satisfied that his drink had not removed the defence from him. We are unable to see how we can second guess that judgment by describing the conviction as nevertheless safe, with or without new evidence. 41. Therefore, this conviction for murder must be quashed. In these circumstances Mr Nolan does not suggest that there should or can, in the interests of justice, be a retrial. He accepts that this court should substitute a verdict of manslaughter on the ground of diminished responsibility and turn to the question of an appropriate sentence on that basis. It is therefore to that question that we now turn, with the assistance of counsel’s submissions and further psychiatric reports. Sentence 42. Dr Farnham has produced, since the hearing of the appeal against conviction and at the request of the court, a further report dated 15 September 2006. He there sets out a detailed account of the appellant’s recent prison medical records. In January 2006 he was assessed by Dr Nicola Mitcheson, visiting forensic psychiatrist to HMP Acklington. There had been reports of strange conduct such as talking to walls and to bin bags. He told her that he had been having arguments with his wife, whom he had married while he was in prison but was in the process of divorcing. He was upset about his divorce and his appeal. He felt he was haunted, something he said had been going on since he was young, even if he had not mentioned it before. Her impression was of a probable schizophreniform psychotic disorder and she commenced him on a trial of risperidone, an anti-psychotic medication. Two weeks later, he appeared somewhat anxious, and she increased his dose. In March 2006 Dr Mitcheson saw him again. He had stopped his medication. There was a prison wing report that his behaviour had again been causing concern. He agreed to resume taking risperidone. In May 2006 Dr Mitcheson reviewed him again. He told her he was not coping well and staying in his cell most of the time. She suggested increasing the dose a second time. In June 2006 she reviewed him. There had been an altercation with prison officers about his failure to do his job washing pots adequately. He said he had had three funny turns in the last few months. Dr Mitcheson queried organic aetiology or malingering. At the end of June 2006 his cellmate claimed he was hitting his head on the wall and floor: on investigation it was concluded that he had had a panic attack. He was transferred to another prison. He said that he had been banging his head because he had not been getting appropriate medical attention. 43. Dr Farnham had taken the opportunity of the appellant’s presence at the Royal Courts of Justice on the occasion of his appeal to interview him again. The appellant described a poor sleep pattern, and a low mood, blackouts, heart-racing and sweating. Dr Farnham was unable to elicit any symptoms compatible with psychotic mental illness. Dr Farnham was also able to discuss the appellant’s case with Professor Grubin. 44. In conclusion, Dr Farnham remains of the opinion that the appellant suffers from a chronic depressive illness and from a number of maladaptive personality traits which amount to a personality disorder. He has noted the possibility that has been raised of a psychotic illness, but observes that no definitive diagnosis has been made. As for ongoing risk, he is ignorant of the appellant’s progress in any courses or groups he may have undertaken, but concludes that he “remains prone to impulsive behaviour and irritability when under stress, as evidenced by the deterioration to his mental state and behaviour around the time of his appeal…[T]he major risk factors for future offending are likely to be untreated depression and continued abuse of alcohol and drugs.” He does not consider that the appellant fulfilled the criteria for the imposition of a hospital order. In the meantime, the parole board would probably be best placed to gather all the necessary information when considering risk. 45. Professor Grubin has also produced a further report, as the court requested of him, and this is dated 8 September 2006. For these purposes, Professor Grubin assessed the appellant at HMP Acklington on 30 August 2006 and also had access to his prison file and discussed his case with Dr Mitcheson. He too describes, in his own terms, the material regarding the appellant’s mental state under the care of Dr Mitcheson, which Dr Farnham has covered in his report. When Professor Grubin saw and assessed him, the appellant said that he had benefited from courses on Enhanced Thinking Skills, Reasoning and Rehabilitation, anger management, violence and weapons, grief and loss, healthy relationships, and drink and drugs. He had learned lessons and no longer desired to use drugs or alcohol. Nevertheless, he described himself as having poor concentration and variable mood, poor sleep, and said he was “on edge”. He gave a vague account of auditory hallucinations. Even so, he appeared pleasant and cooperative, and settled in mood, and there was no evidence of any disorder in the form of his thinking. 46. In conclusion, Professor Grubin describes the appellant as having suffered since 2001 from an intermittently unsettled mental state, initially associated with a depressive illness. From January 2005 he has reported agitation and restlessness, poor concentration, vague auditory hallucinations, and mild persecutory ideation. Medication has been taken only intermittently and appears to have been of limited benefit and its side effects may have contributed to his restlessness. The extent to which his symptoms are the result of an underlying mental illness or a response to his current circumstances (divorce, appeal, prison) is unclear. Despite his denial of any recent use of illicit drugs, this must remain a possible cause of his presentation. In sum, Professor Grubin’s diagnosis is uncertain, but symptoms to date have not warranted transfer to hospital or justified disposal by way of a hospital order. Primary ongoing concern relates to alcohol and drug misuse, against the background of many failed drug tests. Lack of information regarding participation in offending behaviour programmes has inhibited further comment on risk. 47. Dr Mitcheson has provided the court, with the appellant’s consent, with a psychiatric report dated 4 October 2006. She has been treating the appellant since January 2006. She describes at first hand her dealings with and treatment of the appellant since that time, but the effect of what she says is covered in Dr Farnham’s report until at any rate June 2006. Since then, she saw the appellant again on 11 July, when he appeared very restless and was singing quietly to himself. He had then been off risperidone for some five weeks and Dr Mitcheson was therefore uncertain whether his condition was due to risperidone or its absence. There was no clear evidence of ongoing psychotic symptoms. He was last seen on 26 September 2006, still off risperidone, when his condition appeared a lot less restless. 48. In conclusion, Dr Mitcheson refers to the appellant’s past history of treatment for depression but says that during her contact with him he was not suffering depression and had not been treated with anti-depressant medication for some time. She suspected a presumed psychotic illness for a time, but has now rejected that diagnosis in the light of his improvement without being on anti-psychotic medication for some time. Moreover, despite some possible features of schizotypal disorder, he lacks other features consistent with such a diagnosis. Her current working formulation is that his unusual behaviour has been due to increased stress. She has considered but thinks unlikely that his variability in presentation could be due to feigning or exaggeration in the light of his appeal, but she has not been able to rule it out absolutely. She has no current plans to review him routinely. He does not require hospital treatment, nor, were he to be released, does he need to be referred directly to a community mental health team. 49. Finally, there is a helpful pre-appeal report prepared by Mr Steven Doggett on 13 September 2006. Mr Doggett has been the appellant’s external home probation officer since 1 September 2005. He has interviewed the appellant on three occasions and has worked closely with him. Writing initially on the basis of prison records, he reports that the appellant was deeply regretful and ashamed for his actions. Mr Doggett went on to describe various programmes which the appellant has undertaken in prison. At HMP Durham he completed two low intensity programmes focusing on anger management and drink and drug abuse. At HMP Gartree he completed the Reasoning and Rehabilitation programme. At HMP Swaleside he failed to complete an intensive, long term, Cognitive Self Change Programme. The appellant ascribed his failure to difficulties in settling at the prison. He began to suffer from depression again, and there was a self harm attempt. He was transferred to HMP Acklington, where he remains today. There he attempted, albeit again unsuccessfully, the Healthy Relationships Programme, a failure possibly connected with the breakdown of his marriage and his own deteriorating mental health. However, he did complete another course, Enhanced Thinking Skills. In sum, while he has made some very good progress with general offending behaviour programmes, he has struggled with the more intensive and challenging programmes and “there is still a strong argument that further intervention is required”. 50. As for the assessment of risk, Mr Doggett considers the topic to be complex: in part because the appellant continues to assert that he does not remember why he committed the offence; in part because of potential alcohol or drug misuse. He recommends that further work needs to be done to reduce the potential high risk of future violent offending. Such offending cannot be ruled out without a fuller assessment and treatment of the issues that may have diminished his responsibility for the stabbing. In any event, conditions upon any release would have to be carefully worked out to ensure that he did not return to the North Shields area, where Mr Williamson’s family still live, to support him, and to manage risks of harm to himself and to others. 51. On behalf of the appellant, Mr Turner did not contend for a determinate sentence, and submitted that the stark choice, after a period of custody which, including the period during which the appellant was held on remand, is already in excess of 11 years, is between a discretionary life sentence and a community sentence within the regime of the Powers of Criminal Courts (Sentencing) Act 2000 . He frankly accepted that he could not exclude the appropriateness of a discretionary life sentence, but submitted that it would be preferable to explore the terms and conditions on which the appellant might be released into the community under a community sentence. He accepted that this could not be done by the court immediately, because it was not armed with knowledge of what an appropriate “package” of conditions might be: but he asked the court to adjourn sentencing while ordering a report from the probation services in Luton, where the appellant has an aunt who would be willing to give the appellant a home. He submitted that such a post-release package of conditions could not, in respect of offences committed before 4 April 2005, be attached to a life sentence. 52. However, Mr Turner came to acknowledge (a) that a community sentence could only extend for two years, which the court might consider insufficient protection for the future; (b) that the Parole Board, considering the possible release on licence of a life prisoner, could fashion a package of conditions which might be appropriate for the case; and (c) that he could not exclude the possibility of a life sentence. However, he did say that a life sentence was not a necessity. 53. The first question we have to ask ourselves is whether a discretionary life sentence is necessary, or whether the offences with which we are concerned can or could have been disposed of by determinate sentences. 54. We approach the question by considering in the first place what the sentencing judge would have been likely to have decided if, following trial in 1996, the jury had returned a verdict of manslaughter by reason of diminished responsibility. In our judgment, he would without hesitation have decided that a discretionary life sentence was necessary. A defendant suffering from the mental disorders found by the three psychiatrists who gave evidence for the defence, who was likely to be rendered all the more dangerous by reason of his addiction to misuse of drugs and alcohol, who could give no explanation for his offending since he said he did not remember the events, and who had killed his close or best friend and slashed in anger at his sister with whom he was living and to whom he was bonded, had plainly committed offences of sufficient seriousness and would for a wholly uncertain period remain dangerous to the public and constitute a sufficiently high risk of committing further grave offences likely to cause serious harm as not only to justify but require a life sentence: see, for instance, albeit not a case of homicide, Attorney-General’s Reference No 5 of 1998 (R v. Davies) [1998] 2 Cr App R (S) 442 ; see also R v. O’Connor [1994] 15 Cr App R (S) 473 , a case of diminished responsibility. There is nothing in the reports before the trial judge or subsequently to suggest that a hospital order would have been an appropriate alternative. 55. The second question which we ask ourselves is whether anything which has occurred since 1996, or any further information which has come to the attention of the court at this appeal, makes it inappropriate for us to conclude that a sentence of life imprisonment has and remains necessary. In our judgment, there is nothing which entitles us to say that it is not necessary. Whether the appellant today still remains a danger is not something which this court is equipped to decide. There is certainly no medical opinion before us that enables us to say that he does not still remain a danger. The Parole Board, however, is practically and constitutionally the authority best placed to make that determination. There is no submission before us that the appellant could presently be released without careful consideration of the conditions under which any such release could be effected. 56. On the basis that a discretionary life sentence is appropriate and necessary, the next question relates to the specified minimum period which the appellant must serve before being eligible for consideration by the Parole Board for early release on licence. In 1996 the trial judge would have been sentencing the appellant under section 34 of the Criminal Justice Act 1991 , and would have been required to specify a period, being from one half to two thirds of what would otherwise have been the judge’s notional determinate sentence having regard to the seriousness of the offence in question or the combination of that offence and other offences associated with it, as being that part (“the relevant part of his sentence”) which had to be served as such a minimum period. In those days the practice on the whole was to adopt two-thirds of the notional determinate sentence. 57. The third question therefore is what determinate sentence the judge would have had in mind for the purposes of arriving at “the relevant part”. That question is not easy. We know that in his report to the Home Secretary, premised on the conviction for murder, the judge recommended a specified period, namely “the actual length of detention necessary to meet the requirements of retribution and general deterrence”, of 11 years, but Lord Bingham of Cornhill CJ raised that recommendation to one of 14 years. That reflects a period of time actually to be served and is the equivalent therefore to a determinate period of 28 years. We also know that the judge’s determinate (concurrent) sentence for the separate offence of wounding with intent was one of five years. However, we must assume the appellant’s mental responsibility to have been substantially impaired. In the light of the time already spent by the appellant in prison Mr Turner had no particular submission to make to us on this third question. We consider that the determinate sentence for these two offences, bearing in mind that the wounding with intent count, if sentenced on a determinate basis, would have properly attracted a consecutive sentence, would be one of sixteen years: see R v. Sanderson [1994] 15 Cr App R (S) 263 , R v. O’Connor [1994] 15 Cr App R (S) 473 , and R v. Juono Bozo Mohammed [1996] 1 Cr App R (S) 317 . 58. The fourth question is what the “relevant part” of that sentence would have been or ought to be. In 1996 we think that the judge would have been likely to have specified a “relevant part” of two-thirds. In due course, however, the provisions of section 34 of the 1991 Act have been superseded by section 28 of the Crime (Sentences) Act 1997 and in turn by section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000 . It is under that last statute that we are sentencing today. Ever since R v. Marklew v. Lambert [1999] 1 Cr App R (S) 6 , this court has said that the specified period should normally be calculated by taking one-half rather than two-thirds of the notional determinate sentence. We therefore consider that we should specify the relevant part which must be served before consideration of early release to be eight years (half of sixteen years). However, from that period of eight years we need to deduct the period of time already spent in prison on remand which is 1 year and 107 days. Therefore the relevant part before early release can be considered is 6 years 258 days. 59. The appellant has spent considerably longer than that in prison since his conviction and sentence. It follows that he is entitled to be considered for early release by the Parole Board immediately. We recognise that the Parole Board has a heavy workload and responsibility. Nevertheless, having regard to the time which the appellant has spent in prison, we would direct the Board, if we have power to do so, alternatively urge it, to consider the appellant’s case as soon as possible. Their consideration of his case is, of course, entirely a matter for them, as the appellant should understand. 60. We heard submissions as to sentence on 16 October, and pronounced our decision at that time. This judgment contains our reasons for that decision.

```yaml citation: '[2006] EWCA Crim 2749' date: '2006-11-15' judges: - LORD JUSTICE RIX - MRS JUSTICE COX DBE - 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: [2007] EWCA Crim 1766 Case No: 2006 04877 C1 & 2007 00932 C1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Chelmsford Crown Court HHJ Hayward Smith QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/07/2007 Before : LORD JUSTICE RIX MR JUSTICE RAMSEY and HIS HONOUR JUDGE STEWART QC - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Lamb Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Emma Nash (instructed by The Crown Prosecution Service) for the Crown Miss Louise Kamill for the Appellant Hearing date : 4 May 2007 - - - - - - - - - - - - - - - - - - - - - Judgment This is the judgment of the court : 1. The appellant, Mark Lamb, is a teacher who has been convicted of sexual activity in breach of trust with two 17 year old girl pupils whom he taught at his school. The anonymity of the girls in question is protected by statute. We will refer to them as AB and CD respectively. We will not name the school other than to say that it is in Essex. We allowed the appellant’s appeal and quashed his convictions at a hearing on 4 May 2007, but reserved our reasons, which are now contained in this judgment. 2. The appellant was convicted on 9 August 2006 following a six day trial in the Crown Court at Chelmsford before HHJ Hayward Smith QC and a jury on two counts charged under section 16(1) of the Sexual Offences Act 2003 (abuse of position of trust: sexual activity with a child). On count 1 (concerned with AB) the conviction was by a majority of 11-1; on count 2 (which concerned CD) the verdict was unanimous. On 25 October the appellant was sentenced to 40 weeks imprisonment suspended for 2 years on each count to run concurrently, with a requirement to carry out unpaid work for 100 hours. 3. The appellant was aged 33 at the time of trial. He was of previous good character. He had taught religious education at his school, where he was also head of the sixth form. He was popular with both teachers and students, and was known as an excellent teacher. A female colleague (Miss Bennett) and the head-master (Mr Hammond) were called to give evidence by the prosecution, but what they had to say was entirely in his favour. He called numerous pupils in his defence, all of whom spoke well of him. 4. The incidents which gave rise to the two counts occurred a year apart, in each case at the end of the school’s annual Leavers’ Ball, in May 2004 and May 2005 respectively. The ball was held at a hotel. Alcohol was available. The protagonists were all, to a greater or lesser degree, drunk or tipsy. 5. AB’s complaint was that at the end of the ball in May 2004, the appellant was in her room at the hotel and there attempted (unsuccessfully) to kiss her and touched her bottom. CD’s complaint was that at the end of the ball in May 2005 she and the appellant had kissed passionately a number of times on the hotel patio, and that on the third occasion the appellant had put her hand on to his groin, where she could feel his erect penis under his trousers. The appellant acknowledged the occasions in question, but denied any wrongdoing. He said that in May 2004 he had gone to AB’s room because he had heard that she was upset, and that there he had done no more than put an arm round her shoulders to comfort her; and that in May 2005 CD had tried to kiss him, but he had resisted her advances. It was alleged that the two girls were lying, but for independent reasons, for no collusion was suggested: AB in order to get back at her boyfriend with whom she was out of humour that night; and as for CD, he did not know why she should fabricate her account, for he had a good relationship with her, and all he could think of was that he had decided against making her a “midday assistant”. 6. Despite the unattractive nature of this defence, the complaints had nevertheless had a chequered history. 7. AB made no formal complaint until July 2005, some fourteen months after the May 2004 incident of which she complained. In the meantime: (1) that same night she had told her boyfriend, Dan, that, as he put it in his evidence, the appellant had been kissing her on the neck and touching her stomach, her bottom and her leg; (2) Dan tried to persuade her to report the incident, but she chose not to, saying at trial that it would ruin her A levels and “I also thought that it was a mistake as to what happened, that he didn’t mean it and everyone makes mistakes”; (3) five months later, in October 2004, she made an entry in her diary “Lamby tried it on with me. We cuddled and kissed, but I told him to go. Miss Bennett kept ringing. Told Dan. Dan extremely pissed off”; (4) in May 2005 she heard about the incident involving CD, through a mutual friend, Kirsty, and she then “felt partly responsible that it had happened again” and decided that “I must do something about it”; (5) even so she did not make a report until after a school trip to Mersea Island in July 2005, when, after two days discussions with CD and Kirsty, she finally persuaded the reluctant CD to join with her in a report: “It took me two days to persuade [CD] to report it because she didn’t want to”. 8. The essential issue on this appeal was whether the judge had directed the jury on the cross-admissibility of the evidence on the two counts in terms which did justice to the danger, not of guilty collusion to lie about the terms of the girls’ complaints, but of innocent contamination of their evidence arising from their conversations together. AB’s evidence 9. At trial, AB gave evidence as follows. She had gone to the ball in May 2004 as the guest of her boyfriend, Dan, who was a leaver. She remained in school the following year, when she was deputy head girl. She was sharing a room at the hotel with Dan. She and he had been bickering all night “mainly brought on by the alcohol”. She had become upset that Dan had been dancing with a number of other girls, including an ex-girlfriend. She was feeling a bit jealous about this. (In his evidence, Dan said that after he had danced with another girl, he and AB had had a falling out and that they almost ignored one another there after. At one point of the evening she declined Dan’s request for a dance and, as “a way of getting my own back” told him “Oh no, I’m dancing with Lamby”, as the appellant was known. She took the appellant on to the dance floor. Towards the end of the dance, he lifted her up and “I put my legs round his waist”. That came from her witness statement, which she verified in cross-examination. In her evidence in chief she had said that “he put my legs around his waist”. 10. At between midnight and 1 am she and Dan went to their room, but Dan left her there for the bar. She was visited in her room by a friend who tried to persuade her to join others in the bar, but she declined. A little later the appellant knocked at her door, saying that he had spoken to Dan and had come to see if she was OK or upset. (The appellant in his interview and in evidence said that he was concerned that AB was upset and wanted to check that she was OK. He told his colleague, Miss Bennett, that he was going to check on AB in her room. Miss Bennett knew that he was there, because she rang him there later.) AB and the appellant sat on the bed talking. She felt comfortable and regarded the appellant as a friend who had come to see if she was OK. She said that he put his right arm around her, and she did not think anything of it, at the time. 11. According to her evidence the mood changed when the appellant said that in the next year she would no longer be a student, things would be different and they could get a room together. (She agreed in cross-examination that this did not make sense, as she would still be a student next year.) She got up, but did not ask him to leave. She said that at one point she was kneeling on the bed facing him as he stood and he put his hand on her bottom and said “Oops, I’m touching your bum.” And he tried to kiss her, a number of times, leaning towards her, and she pulled away. She thought he was drunk. 12. Dan arrived back in the room and asked her to come to the bar with him. She said no, and Dan left again. Miss Bennett phoned, a number of times, to speak to the appellant, and he said he would be down in a minute. (Miss Bennett said she phoned three times, AB in her witness statement said at least five times and possibly as many as ten times.) But he only left when AB opened the door for him to go. He had been in her room for about half an hour. 13. Five minutes later, a friend arrived to invite her again to join others at the bar. She agreed, and did not say anything to her friend, since they were not that close. At the bar she saw Dan, and asked him to come with her back to the room. There, she broke down crying and told him “everything”. (In due course, Dan’s evidence of what he was told went well beyond AB’s evidence of the incident. He said that she told him that “he was kissing her on her neck and touching her stomach, her bum and her legs”.) She was cross-examined on the basis that she told Dan a story to make him jealous, and that none of it had happened, but she denied that. He urged her to report the incident, but she did not want to. She thought it would ruin her A levels, also that it was a mistake, that the appellant “didn’t mean it”, and everyone makes mistakes. 14. On the following Monday, back at school, AB met the appellant, who said: “We had a funny conversation on Friday night.” He also suggested that it was “best to keep it to ourselves”. There was no apology. After that AB did not continue with religious studies (presumably at A level) in the appellant’s class. She was angry and annoyed, because their previous friendly relationship (she also spoke of an extremely good relationship, and of vying with another girl student for his attention) could not continue as before. She did, however, ask the appellant to write her a university reference in October 2004, since she preferred it to come from him, as head of the sixth form, to one from her form tutor, who she felt did not know her so well. 15. I have referred above to AB’s diary entry of October 2004. I repeat it here for convenience: “Went to Leavers’ Ball. Lamby tried it on with me. We cuddled and kissed, but I told him to go. Miss Bennett kept ringing. Told Dan. Dan extremely pissed off.” 16. In May 2005, AB went to the Leavers’ Ball again. That is the occasion of the incident involving CD. AB was now a leaver herself. Her chronology of what happened thereafter is not clear from the judge’s account of her own evidence, but it appears from other evidence at the trial that two days after the 2005 ball CD told her friend Kirsty, who was also a very good friend of AB, about the incident involving the appellant and her, that is to say that they had kissed and that he placed her hand on his penis; that CD had then pulled away and the appellant had said “okay, fine”. Kirsty was shocked and phoned AB for advice. AB then told her that “the same thing” had happened to her the year before. 17. In July 2005, the three girls, AB, CD and Kirsty met up at a school trip to Mersea Island. AB’s evidence about what happened on this trip was as follows: “It was brought to my attention that there had been an incident that following year with [CD] and it was for that reason that I reported it. I felt partly responsible that it had happened again because I didn’t do anything about it the year before. That is when I decided that I must do something about it. It took me two days to persuade [CD] to report it…because she didn’t want to...[CD] and I had many discussions about reporting it. She was very upset. I told her I was going to report it whether or not she did. She eventually said that she would support me. I only reported it because of what happened to [CD]. I didn’t tell anyone because I thought it was a one-off drunken mistake. When it happened a year later, I realised that it was not and I realised that I should report it in case it happened again.” CD’s evidence 18. CD was a year behind AB. In May 2005, she was 17 and, although not a leaver herself, had been invited to the ball. She knew the appellant quite well and had a friendly student/teacher relationship with him. She would chat to him regularly in his office about school matters. She drank 10-12 bottles of Smirnoff Ice, a vodka alcopop, and accepted that she was “drunk up to a point”. She danced with the appellant. 19. Towards the end of the ball, she was at the bar with other students, the appellant and another master. She cuddled the appellant and the other master. She acknowledged herself as flirtatious, bubbly, fun and mischievous. She kissed them both on the cheek. She encouraged them to kiss her on the cheek and then moved her head so that the kiss came on the lips. “It was all good fun.” She thought that the appellant was drunk. Still later, after returning to her room and then to the bar, she found the appellant and the other master still there. The appellant wanted to fetch his camera from the ballroom, and CD said she was going that way and accompanied him. They were holding hands. The appellant went outside on the patio, and first she lost him and then she followed him outside and found him there. “We ended up kissing”, then stopped and then started again, then stopped. The appellant said: “I can’t do this, I’m married.” They were interrupted by a passing couple, but there was then a third kiss. It was then that he guided her hand to his crotch area, where she felt his hard penis. She moved her hand away, saying “Stop, this isn’t right.” The appellant said: “Fine, fuck off”. 20. The next morning, at the hotel, the appellant sought her out and apologised. She said sorry too. She asked him not to say anything. 21. That day, and again two days later, CD met Dan’s sister, who was also a student at their school. She said that she had seen CD and the appellant kissing. On both occasions CD said that nothing had happened. (The sister also gave evidence: her account was that CD had asked her not to tell anyone as the appellant could lose his job.) 22. Back at school, CD told the appellant about her conversations with Dan’s sister. She was worried and upset, and in this state told Kirsty. She heard from Kirsty about AB’s incident the previous year. 23. In July 2005, she went on the school trip to Mersea Island, where she spoke to AB, who told her “it has happened to me. We must make sure it doesn’t happen again.” Although CD reported her incident, her position remained as she put it in her witness statement, viz – “I still feel guilty and responsible for the trouble this will lead to. I took part in the kissing of Mr Lamb willingly, but I did not consent or willingly touch his penis through his trousers.” 24. She was cross-examined on the basis that she had made her story up, but she said it did happen. The appellant’s evidence 25. The appellant was a married man with a young child. He had been to eight Leavers’ Balls. He was extremely close to AB. He described her as a perfect student. He said that at the time of his arrest he did not think that there was any reason for her to have made her allegations, but that subsequently he felt that they had been escalated to make Dan jealous. He accepted to being tipsy at the May 2004 ball. He had gone to AB’s room because he was fond of her, was slightly annoyed that her boyfriend was not bothering with her, and felt sorry for her. She looked upset. He put his arm around her, to console her. He denied the gravamen of the complaint against him: that he had tried to kiss her, had touched her bottom, or had spoken of sharing a room the next year. He was in the room half an hour. He was getting a lift home with Miss Bennett and her fiancé, and when she started ringing, it became a joke to keep her waiting. On the following Monday he did not ask AB not to tell anyone. 26. As for May 2005 and CD, he could not think of why she should make an untrue allegation. He was reasonably drunk. On leaving the bar with CD he did not hold hands with her. They did not kiss, but CD leaned towards him to kiss him. He attempted to avoid it, but failed. He was kissed on the lips. He pushed her away. They did not kiss three times. He did not put her hand on his erect penis. He did not say “fuck off”. That was a lie. He did seek her out the next morning, but that was to reassure her about her own behaviour. The ground of appeal 27. There is one essential ground of appeal, although it has gone through some development and reformulation. However, as explained at the hearing of the appeal, the real complaint is that, in circumstances where the new provisions regarding bad character contained in section 101 of the Criminal Justice Act 2003 (the “2003 Act”) permitted the evidence on each count to be cross-admissible on the other, it was important for the judge to direct the jury carefully about the dangers of innocent contamination of the girls’ evidence, especially in the light of the events of the Mersea Island weekend (but also to some extent because the two incidents were not in themselves very similar, but appear to have been regarded by the girls, and the judge, as being substantially similar, if not identical). 28. Thus there was discussion before the judge about the 2003 Act . The issue of cross-admissibility was not pressed to a ruling. Rather Miss Kamill, on behalf of the appellant, then the defendant, accepted that the jury would be directed that the evidence on the two counts would be cross-admissible. There was also to some extent discussion about the manner in which the judge would direct the jury in this connection. Miss Kamill’s complaint, however, is that the judge’s direction differed from that which she had anticipated in two important respects: primarily, in that the judge failed to attach significance to the dangerous aspect of the lengthy discussions between the girls at Mersea Island, and in this connection omitted an important part of the standard JSB direction in relation to cross-admissibility; and secondarily, in that the judge included a passage on “coincidences” which Miss Kamill submitted went well beyond what the evidence allowed. 29. On behalf of the Crown, Miss Nash was disposed to accept that the judge ought to have given a direction about innocent contamination (or what the standard JSB direction describes as conscious or unconscious influence) as well as guilty collusion, but that in circumstances where there had been no case of collusion at all, nor of innocent contamination, but only a defence that the girls had been independently lying for their own reasons (or for none), the convictions were nevertheless safe. The Criminal Justice Act 2003 30. Section 98 of the 2003 Act provides: “98. References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which – (a) has to do with the alleged facts of the offence with which the defendant is charged,…” 31. Section 112(2) provides: “Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter (except section 101(3) ) has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.” 32. Section 99(1) provides that the common law rules governing the admissibility of evidence of bad character are abolished. 33. In R v. Chopra [2006] EWCA Crim 2133 , [2007] 1 Cr App R 16 , Hughes LJ said (at para 14): “We agree that that means that where a defendant is charged upon several counts the evidence which goes to suggest that he committed count 2 is, so far as count 1 is concerned, bad character evidence within the Act . Accordingly, the evidence relating to count 2 can be admissible through one of the gateways in s.101 . The same applies vice versa and however many counts there may be.” Hughes LJ emphasised the “sea change” in the law’s starting point for the admission of similar fact evidence, viz section 101 : see para 12. 34. Section 101 contains the gateways for the admission of evidence of bad character. It provides – “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… (2) Sections 102 to 106 contain provision supplementing subsection (1). (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.” 35. There are further provisions in section 103 relating to the gateway in subsection (1)(d) of section 101 . For instance – “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; (b) the question whether the defendant has a propensity to be untruthful, except where it is not accepted that the defendant’s case is not untruthful in any respect.” 36. Section 107 emphasises the importance of the absence of collusion or innocent contamination of such bad character evidence. It provides – “107.(1) If on a defendant’s trial before a judge and a jury for an offence – (a) evidence of his bad character has been admitted under any of the paragraphs (c) to (g) of section 101(1) , and (b) the court is satisfied at any time after the close of the case for the prosecution that – (i) the evidence is contaminated, and (ii) the contamination is such that, considering the importance of the evidence in the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers there ought to be a retrial, discharge the jury… (5) For the purpose of this section a person’s evidence is contaminated where – (a) as a result of an agreement or understanding between the person and one or more others, or (b) as a result of the person being aware of anything alleged by one or more others whose evidence may be, or has been, given in the proceedings, the evidence is false or misleading in any respect, or is different from what it would otherwise have been.” 37. In the present case, there was the clear possibility that the two complainants had been consciously or unconsciously influenced in their complaints or their evidence about them by hearing of, and discussing with one another, the circumstances of their respective incidents. For instance, AB’s evidence was that, until she heard about CD’s incident, she had put her own experience down to “a mistake as to what happened, that he didn’t mean it”. She therefore re-evaluated her own experience in her own mind as a result of hearing about CD’s experience. That is perfectly natural, but it is also, at least potentially, highly relevant to the jury’s view of the weight of the evidence. 38. Section 107 is dealing with the situation where in the course of a trial the judge is satisfied that false or misleading evidence has been given, or even that “evidence is different from what it would otherwise have been”. That situation did not arise at trial, but, as will appear below, Ms Kamill was nevertheless concerned that the judge should direct the jury about the ramifications of the prolonged discussions at Mersea Island between the two complainants. What is the position, therefore, where an issue of collusion or innocent contamination arises before the jury, now that common law principles governing the admissibility of evidence of bad character have been abolished? 39. In his Evidence of Bad Character , 2006, Professor J R Spencer QC explains the matter as follows: “5.32. The basic rule is that the weight (if any) to be given to any piece of evidence is a matter for the jury, not the judge… 5.33 To this rule, there are a number of exceptions where the judge is required or permitted to stop the case because he considers the prosecution evidence to be of poor quality…To these exceptions, the CJA 2003 adds a new one relating to evidence of bad character. Where the case against a defendant consists of a series of incidents, described by a series of witnesses, the court must stop the case if it comes to the conclusion that the witnesses have colluded, or that their evidence is the result of suggestion, to the point where a conviction on the evidence would be unsafe. Section 107… 5.34 This provision comes from the Law Commission, which thought that the existing law did not provide sufficient safeguards against the problem of ‘contaminated evidence’ in such cases. In R v. H [1995] 2 AC 596 the House of Lords took the position that the question whether the evidence was ‘contaminated’ was a matter that affected its weight, and therefore a matter for the jury…The Law Commission, by contrast, thought that where the judge himself was satisfied that there had been ‘contamination’ of the evidence, he should be required to stop the case. 5.35 Unfortunately the provision is not clearly drafted – and has the potential to cause difficulty and confusion as a result. One of the obscurities is the meaning of ‘contaminated’: an expression that section 107(5) does little to clarify. The word ‘contaminated’ and what is now section 107(5) both originate from the Law Commission’s Report Evidence of Bad Character in Criminal Proceedings (Law Com no 273, Cm 5257, October 2001) , at p 223 of which the following explanation is given: “By virtue of subsection (5), evidence might be ‘contaminated’ as a result of: deliberate fabrication of allegations resulting from an agreement between witnesses; concoction of an allegation by one person (no conspiracy); collusion between witnesses to make their evidence sound more credible falling short of concoction of allegations; deliberate alteration of evidence or unconscious alteration of evidence, resulting from having become aware of what the evidence of another will be or has been.” From this it seems that evidence can be ‘contaminated’ by accident, as well as by design… 5.37 By section 107(1)(b), the duty that section 107 imposes on the judge to stop the case only arises where ‘the court is satisfied…that the evidence is contaminated.’ The court has no duty – and indeed no power – to stop the case merely because it thinks the evidence may be affected by collusion or suggestion. Where the court is satisfied that the evidence is contaminated , then it must consider ‘the importance of the evidence to the case against the defendant.’ If it concludes that its importance is such that a conviction based wholly or partly on such evidence would be unsafe, it must stop the case. 5.38 Where the issue of suggestion or collusion has been raised, but the judge is not persuaded that the bad character evidence has been contaminated in this way, the case should be left to the jury with an appropriate warning; and, similarly, if the judge takes the view that the contamination is not such as to make a conviction on the evidence unsafe.” 40. Prior to the 2003 Act , the standard JSB direction (direction 20.3 of April 2003) where there was cross-admissible evidence arising from similar incidents included the following language: “1. Ask yourselves: Are you sure that W, X and Y did not put their heads together to make false accusations against the defendant? If you are not sure of that, the evidence of X and Y is of no value, and you must ignore it… 2. You must then ask: Is it reasonably possible that the three persons, independently making the similar accusations which you have heard, could all be either lying or mistaken? If you think that is incredible then you may well be satisfied that W was speaking the truth. In answering this question you must consider two important aspects of the evidence: (i) The degree of similarity between the accusations. The greater the degree of similarity, the more likely it is that independent witnesses are speaking the truth, for you may think that it would be a remarkable coincidence if they hot upon the same lies or made the same mistakes as to matters of detail. On the other hand, the less the degree of similarity, the less weight should be given to this evidence; and (ii) Whether W, X and Y may have been consciously or unconsciously influenced in their evidence through hearing of complaints made by others. If you think it is possible that they, or any of them, may have been influenced in making the accusation at all, or in the detail of their evidence, you must take that into account in deciding what weight, if any, you give to their evidence.” 41. Miss Kamill’s primary submission on this appeal is that the judge failed to address the important content of direction 2(ii) above relating to innocent contamination, and that this made the convictions unsafe. R v. Chopra 42. In Chopra the defendant was a dentist charged with indecent touching of three teenaged patients. The judge ruled that the evidence of the three patients was cross-admissible provided that collusion or contamination between them could be excluded. The dentist was convicted on the counts relating to two of the patients, but not on the counts relating to the third. The appeal was essentially based not, as here, on the nature of the directions given, but rather on the disputed ruling of cross-admissibility. This court held that in such circumstances the rules of the common law had been replaced by the provisions of the 2003 Act and in particular those relating to the section 101(1) (d) gateway. There was no issue of collusion or contamination, however, – for the patients did not know one another – other than arose from the typical situation where one formal complaint led to the discovery or re-discovery of other complaints. 43. The following extracts from the judgment of this court given by Hughes LJ are relevant to the present appeal. They emphasise the significance of the exclusion of collusion or innocent contamination in a case where the section 101(1) (d) gateway renders evidence from several complainants cross-admissible on several counts. “10. After hearing argument at the conclusion of the evidence, the judge ruled that the evidence of each complainant could be treated by the jury as admissible to support that of another, providing that the possibility of collusion or contamination between them was excluded. The scope for any complainant to be aware of the complaint of the other had been fully explored at the trial. These were girls who were not known one to another. The first and third had met the appellant at different surgeries some miles apart in the West Midlands conurbation and the alleged incidents were well spread in time. 11. After introducing the topic, identifying suggested similarities, reminding the jury that the defence argument was that there were significant dissimilarities between the allegations, and after stressing to the jury that they must consider each count separately, the judge said this in his summing-up: “The important point is this. The similar fact principle only applies if you are sure that the witnesses have not colluded and their evidence has not been contaminated by gossip from others in the same small area of Sedgeley, and Mr Coker reminded you by reference to the plan of the proximity of addresses and schools, and so on. If you are sure that there was no collusion or contamination, the principle of similar fact evidence allows you to say, as the prosecution invite you to do, that it is an affront to common sense that three witnesses should independently make such similar allegations against the same person. It is for you to say whether in your judgment the similarities do lead you to conclude that these three girls cannot independently have invented the same or similar false stories. When you consider this aspect of the case, consider the degree of similarity. The more similar the stronger would be this line of reasoning. I remind you of the submissions and arguments made by Mr Coker…The principle, I hope, is now clear. It is for you to assess whether the degree of similarity does have the logical point that the prosecution ask you to bring to bear in this case. It is for you to decide.”… 15. For the purposes of the present case the relevant gateway is s.101(1) (d). The evidence of the several complainants is cross-admissible if, but only if, it is relevant to an important matter in issue between the defendant and the prosecution…The important matter in issue in relation to each count is whether there was an offence committed by the defendant or no offence at all and s.103 expressly provides that the matters in issue between the Crown and the defendant include whether the latter 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 charged. The present case is one in which quite clearly if the evidence did establish a propensity in the defendant occasionally to molest young female patients in the course of dental examination, that did make it more likely that he had committed the several offences charged. We do not understand Mr Coker to submit otherwise. Of course, where propensity is advanced by way of multiple complaints, none of which has yet been proved, and whether they are proved or not is the question which the jury must answer, that is a different case from the case where propensity is advanced through proof of a previous conviction which may be incapable of contradiction. However, the 2003 Act governs all evidence of bad character, not only conclusive or undisputable evidence… 25. For those reasons, we are satisfied that this evidence was, as the judge ruled, available to the jury if it accepted it and if collusion and contamination was excluded on a basis of cross-applicability each to support the other.” 44. We cite these passages from Chopra because, although as it turned out, it became common ground that the evidence of the two girls was cross-admissible on both counts, and indeed it was accepted by Miss Kamill, as stated above, that that was so: nevertheless, it became important for the judge to warn the jury in adequate terms of the danger of innocent contamination. That was done by the judge’s directions in Chopra , even though in that case the chance of collusion or contamination was extremely small. The summing-up and the judge’s directions 45. On the question of cross-admissibility, the judge directed the jury as follows (at pages 12/13 of the transcript of his summing-up): “Now you know that the allegations in each count are similar and I repeat that you must be careful to consider the evidence in relation to each count separately, but how are you to approach the fact that there are two counts which are similar? Can you use, in any circumstances, one count to assist you on the other? That is a matter which you should approach with care, but there are circumstances where you can use the evidence on one count to assist you with the other. First of all, you must ask yourselves in this connection whether the girls have colluded. In other words, have they put their heads together and cooked up false allegations against the defendant? If that had happened or might have happened, it would be dangerous to rely upon the evidence of either of the girls. Before you place reliance on what they say, you must be sure that they have not put their heads together and made up false allegations. In other words, you must be sure that they have not, what the lawyers call, colluded or connived together. You may think, however, that there is no evidence that they have colluded or connived together to fabricate a false story, false allegations. It was never suggested to them during their evidence that that had happened and, on the contrary, you may think that the evidence points to them not having connived together or colluded together. The allegations are a year apart in time. The evidence is that [AB] told her boyfriend, Dan, soon after the incident which she said had happened in the bedroom and that [CD] told her friend, Kirsty, a couple of days or so after the incident what she said happened in that door or at that door, just outside the corridor. There is no evidence that [AB] and [CD] spoke together about these allegations until long after the allegations had both happened and each girl had told at least one other person about them soon after the event. So you may think that you can be sure (and it is a matter for you), but you may think on the evidence you can be sure that there was no connivance or collusion between these two girls to fabricate a false story.” 46. It may be observed that the judge emphasised at length, and repeatedly, that the jury had to consider an issue of collusion or connivance, by which he made clear he meant false fabrication, even though that issue had not been raised or suggested in cross-examination, and even though there was, as the judge reminded the jury, “no evidence” of such collusion or connivance. However, the judge did not go on to direct the jury about the possibility of innocent contamination, even though that alternative is a standard part of the JSB recommended direction, and even though on the evidence there plainly was room for concern about such conscious or unconscious influence. 47. At the end of the summing-up, Miss Kamill asked the judge to address that concern. Inappropriately, she used the word “collusion” to describe it, but she nevertheless made clear that what she was speaking about were the two days of discussions between the two complainants and Kirsty at Mersea Island. The judge immediately took the point, and agreed to remind the jury of the Mersea Island trip. On the jury’s return, he told them this (at page 74 of the transcript): “I directed you about whether the two girls…had spoken together. You will remember the direction in law I gave you about that. They did of course, speak together at some length on Mersea island during that trip. I am sure you remember that and I think I reminded you of the evidence about that, so they were certainly talking together at length then and some persuasion was going on, you remember, as to whether or not they should report it. I have reminded you of the evidence. I am not going through it again, but I remind you of that. All right?” 48. The difficulty about that, Miss Kamill submits, is that, coming right at the end of the summing-up, divorced from the direction about cross-admissibility and collusion, it would have lost all impact. In any event, if the jury had connected these further remarks with the direction about collusion, it would merely have been added in to a direction which had all but removed the whole concept of collusion from the jury. 49. Miss Kamill also complained about a further passage in the summing-up, where the judge spoke about the similarities between the two incidents, albeit the judge used the term “coincidences” to describe such similarities, in order to raise the issue “whether the explanations for such apparent coincidences is that the allegations are true”. This passage came immediately after his direction about collusion. He said (at page 14 of the transcript): “You may think that points of coincidence include the following: both girls…were 17 at the time they made the allegations; both girls thought the defendant was an excellent teacher; both girls thought highly of him as a teacher and as a person. They liked him and they are both making allegations against someone they were fond of. Both girls flirted with him…Both girls allege incidents that took place after a Leavers’ Ball; an occasion which is an emotional occasion, when alcohol has been consumed. Both girls said that they were very upset afterwards; both girls told another person about what they had said had happened; both girls said they were very reluctant to report the incident. Did each or either girl misunderstand the defendant’s intentions at the time? Did each or either girl make up the allegations? For example, did [AB] make it all up to get back at Dan?” 50. Miss Kamill submitted that in this passage, which had not been foreshadowed in his discussions with counsel, the judge over-emphasised the similarities between the incidents, speaking like an advocate. He made no allowance for any dissimilarities. Moreover, many of the factors relied on as making the incidents similar were not relevantly so: thus it did not go to the significance of similar fact evidence that both girls thought highly of the defendant as a teacher, or that they were upset afterwards, or that they were reluctant to report. Those factors might, outside the consideration of similarities, go independently to support the individual complaints, but not as a matter of cross-admissibility. 51. Finally, the judge directed the jury about propensities. He warned them that they could not use evidence about which they were unsure on one count to support evidence about which they were unsure on another count. It was only if they were sure of guilt on at least one count that they could use that to assist them on the question whether on the other count the defendant was telling the truth or had a tendency or liability to act in a sexually inappropriate manner when in drink. Miss Kamill had no complaint about that direction. Discussion 52. There was some debate before us as to the nature of the defence advanced on behalf of the appellant at his trial. It was common ground that it was said that each of the two girls was lying, but that they had not colluded to do so. So much was also clear from the summing-up. There was a dispute, however, as to whether it had been suggested that the complaints might have been the product of innocent contamination, a conscious or unconscious reinterpretation of the events in the light of the girls’ extended conversations about them. Miss Kamill said that it formed an important part of her final speech, although she accepted that it was not something that she could have very easily cross-examined about. Miss Nash, on the other hand, asserted that the Mersea island discussions were never explored in depth and that innocent contamination was never made an issue in Miss Kamill’s final speech. Miss Nash nevertheless accepted that the fact of the two days’ discussions between the girls at Mersea Island may well have made a direction about innocent contamination necessary. However, she submitted that the convictions remained safe. 53. Ultimately, we think that this is a short point. It is unfortunate that there is a different recollection between counsel as to the conduct of the trial on the point of innocent contamination. It may be that Miss Kamill thought that she gave the point greater prominence than she did. Moreover, even when reminding the judge about the Mersea Island discussions, Miss Kamill had used the inappropriate term of “collusion”, a matter which it is common ground was never an issue at trial. In these circumstances, it is possible that in their discussions with the judge the alternative of innocent contamination had not been given appropriate or any prominence. Nevertheless, we think that the point was plainly there, and there to be seen, and that the nettle needed to be grasped. The judge could not afford to leave it out. It was inherent in the judge’s question to the jury (in another context) quoted above – “Did each or either girl misunderstand the defendant’s intentions at the time?” In circumstances where AB originally told a story to her boyfriend which went vastly beyond her ultimate complaint, but at the same time originally put down her incident “as a mistake as to what happened” etc (which is not consistent with the account she gave of the incident to her boyfriend), and where she only made a report after learning of CD’s complaint and discussing it with CD; where CD never wanted to report her incident and only did so after extensive discussions and pressure from AB; and where AB interpreted CD’s experience as revealing new insights as to her own, a matter on which there would obviously have been discussions between the girls: in these circumstances, we think that the standard JSB direction encompassing innocent contamination as well as dishonest collusion should have been clearly explained to the jury, as well as its significance to the facts of the case. The fact that all the parties were more or less drunk or tipsy at the time of the incidents is also relevant, if their acts, intentions and the way in which they were perceived are subsequently to become the subject matter of prolonged discussions. 54. What in fact happened, was that the judge instead repeatedly and at some length directed the jury only on the matter of dishonest collusion, an issue which had not been raised at trial, and which the judge effectively withdrew from the jury at the very same time as he was giving it such emphasis. So, not only was the necessary point not made, but the wrong point was emphasised. The jury would have been likely to think that, having rejected collusion, as they were invited to do, they were entitled to give the cross-admissible evidence full weight on each count. Whereas they should have been warned that they must take the possibilities of conscious or unconscious influence into account when assessing the weight of the complainants’ evidence. The subsequent direction that they could use guilt of which they were sure on one count to assist them on the other count on the question of propensities, which in theory might have limited the cross-admissibility of the evidence on the two counts, would have been unlikely to have deterred them from using the evidence collaterally. What otherwise was the point of the judge’s directions as to “coincidences”? 55. Although the judge mentioned the evidence about the Mersea Island discussions in the course of his summing-up, and again, as cited above, at its end at the request of Miss Kamill, he never tied that evidence in to the question of innocent contamination. 56. We think that the importance of a proper direction as to the significance of similar fact evidence in respect of counts on an indictment where possibly contaminated evidence is cross-admissible has been emphasised by section 107 of the 2003 Act , even if that section in terms only relates to the judge of the trial himself. Professor Spencer’s observations about this section are pertinent (see especially his paras 5.35, 5.37, and 5.38 cited above). The importance of a proper direction has also been emphasised by this court in Chopra . 57. In our judgment, therefore, the judge’s failure to warn the jury about the danger of innocent contamination was a material misdirection, which went to the heart of this case. We do not suggest that the judge was wrong not to have stopped the case himself, something that was never suggested, but we do think that in the circumstances the jury’s verdicts are as a result of the judge’s misdirection themselves unsafe. In this connection, the manner in which the judge dealt with the question of similarities, although it would not in our view by itself have called the verdicts into question, did not assist. As Hanson and Chopra have emphasised, sufficient similarity raising the issue of the likelihood or unlikelihood of innocent coincidence is a relevant and sometimes critical test. It is therefore necessary for the judge, if he outlines the similarities to the jury, to give a balanced and accurate account of them, so far as they evidence a propensity which makes it more likely that a defendant has committed an offence. 58. It was for these reasons that we allowed this appeal and quashed the convictions.

```yaml citation: '[2007] EWCA Crim 1766' date: '2007-07-18' judges: - LORD JUSTICE RIX - HIS HONOUR JUDGE STEWART 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: [2008] EWCA Crim 1491 Case No: 200605950B1 200605951B1 200605949B1 20060595 B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CANTERBURY CROWN COURT HIS HONOUR JUDGE ADELE WILLIAMS T 20047114 T20047049 T20047020 T20047021 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/07/2008 Before : LORD JUSTICE HUGHES MR JUSTICE FIELD and HIS HONOUR JUDGE RICHARD BROWN (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : Durgesh Mehta Mathew Sharman Gerald Patrick Reardon Peter John Ratcliff Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Khamisa QC and Mr N Hawes (instructed by Irwin Mitchell ) for the Apellant Mehta Miss E A Marsh QC and Mr M Maher (instructed by David Charnley ) for the Appellant Mathew Sharman Mr A Lakha QC and Mr T Badenoch (instructed by Alexander Johnson) for the Appellant Gerald Patrick Reardon Sir Ivan Lawrence QC and Mr. M Buckland (instructed by Garstangs ) for the Appellant Peter John Ratcliff Mr J Anderson, Mr N Medcraft and Miss V Atkins (instructed by Revenue and Customs Prosecutions Office ) for the Crown Hearing dates : Thursday 19 th and Friday 20 th June 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes : 1. On 19 & 20 June we heard applications for leave to appeal against both conviction and sentence by all four defendants. We gave judgment on 20 June in relation to each of the conviction applications, but were obliged by want of time to reserve our decisions as to sentence. Those we now give. 2. It is unnecessary to repeat the circumstances of these offences. A summary of them can be found in our judgment relating to the conviction applications. Mehta was convicted of cheating the revenue by way of a substantial ‘carousel’ VAT fraud (count 1). All four defendants were convicted of conspiracy to launder the proceeds (count 2). The indictment had contained substantive counts of money laundering to cater for the possibility that the jury might be satisfied, in the case of one or more defendants, that he was party to laundering specific sums which passed through his own hands but not to the wider conspiracy charged in count 2. The jury’s verdicts of guilty on count 2 made it unnecessary to take verdicts on those substantive counts, and justifies the conclusion, reached by the trial Judge, that each of the last three defendants had been party to the laundering of all the proceeds except about £1m which was or may have been handled outside the loop of which they were part. Thus the sums involved were, for Mehta, about £7.1m, and for the other defendants approximately £6m. Like many MTIC or ‘carousel’ frauds and their associated money-laundering, this was a highly sophisticated operation, with the essential simplicity of the fraud being disguised by what the Judge described as ‘thousands of false invoices and documents, faxes and bank statements’, as well as a false bank account. The circulation of the money by way of disguise took in the continent as well as activity in this country. 3. The Judge sentenced Mehta to 10 years for the cheat, with a concurrent term of 8 years for his part in the laundering, thus 10 years in all. She sentenced each of the remaining defendants to 8 years for the money laundering in count 2. 4. The first submission made to us was that the Judge had been wrong to proceed to sentence after it had become known at the end of the trial that Reardon and Ratcliffe had been arrested on suspicion not only of tampering with the jury (the Kilshaw tampering) but also of uttering a threat to kill the Judge. It is said that she should have declined herself to pass sentence because there would be a perceived Medicaments ‘bias’, used in the sense of lack of independent objectivity, because she had unavoidably become personally involved. That, it is submitted, might lead to the adoption of a raised starting point, which might (a) be unappealable in the sense of falling within an acceptable bracket, but nevertheless be wrongly affected by the allegations made, and (b) affect not only the two defendants arrested but also, by parity, others. We sympathise with the difficult position in which the Judge found herself. But there is real importance in sentence being passed by the Judge who has heard the trial, in this case over several weeks. We do not doubt that the Judge was able to discount for the purposes of sentencing the allegations made against Reardon and Ratcliffe, especially when she had no means of knowing whether they were to be substantiated or not. In the end, no charge was brought against either man. 5. There was at one time a further argument based upon the fact that in passing sentence the Judge inadvertently explained the sentence in terms of the early release provisions of the new Criminal Justice Act 2003 , rather than those of the 1991 Act, which applied to this case because of the date of the offences. That has rightly not been advanced in the light of the enactment of section 26 Criminal Justice and Immigration Act 2008 , which brings the early release provisions for these defendants, and most 1991 Act prisoners, into line with those applicable to 2003 Act prisoners. We are not to be taken to be saying that even without the new statutory provision this complaint would have had any force; it does not seem to us that it had. 6. The principal ground of appeal is that the sentences are simply too long. Each defendant has contended that by comparison between his own case and that of one or more others his responsibility ought to have been recognised to be smaller. We see no error in the Judge’s approach. She had an unrivalled opportunity to judge the roles of each defendant. On the material which we have examined we have no doubt that she was entitled to conclude that Mehta had had more than a formal ‘front-man’ role and was deeply involved in the organisation and execution of the cheat. Given the convictions on count 2, the different but complementary activities of the other three defendants, and the contacts between them, and between them and other essential persons, we are equally sure that she was entitled to treat them all the same. As she said, they acted ‘as a team’. 7. Were the sentences nevertheless too long ? We have considered a number of cases of sentencing in carousel frauds, to which we have helpfully been referred. Insofar as reliance is placed upon May [2005] 2 Cr App Rep (S) 67 at 408 two things are to be noted. First, the amount involved for the defendant in question was £4.4m, rather than the £12m figure to which we were referred, which was the total for all defendants. Secondly, the reduction in sentence there made, from 5 years to 4 years, was made because the sentence had been passed on a factual basis subsequently found by the sentencing Judge during the confiscation proceedings to have been erroneous (see page 429). This court did not need to address the question of whether 5 years would have been appropriate upon late plea of guilty, for a fraud involving £4.4m. 8. This court recognised in AG reference 88 of 2006 (Meehan and others) [2007] 2 Cr App Rep (S) 155 that earlier sentences for this form of fraud had not always been as long as its prevalence has shown to be necessary. It is with this case and the judgment of the Vice President, Latham LJ, that it is now necessary to begin. There, the sums of duty evaded for the principal three defendants had been £24m or £38m. This court indicated that for those engaged on that scale as organisers of the fraud sentences well into double figures could now be expected after trial. However, different considerations applied to those sentenced in that case who were the operators of genuine companies with legitimate trade, and who lent themselves to the fraud as ‘buffer companies’, that is to say those through whose hands the actual or notional commodities passed, but who were neither the missing traders who withheld the VAT nor the eventual reclaimers of VAT upon ‘export’. After trial, sentence for such buffer operators should, it was held, be of the order of 6-8 years; that was assuming an overall loss to the Revenue of the order of £24-38m. [Note that the penultimate sentence of paragraph 19 of the judgment as reported contains a misprint in speaking of such a sentence being appropriate to a plea of guilty.] In the subsequent case of Takkar [2008] EWCA Crim 646 this court, presided over by Sir Igor Judge P, upheld a sentence of 7 years after trial where the defendant was not running a buffer company but was held to be an organiser of the fraud, in that case as the missing trader. There, the loss to the Revenue involved was about £5m. 9. We have also looked at a number of cases of more general money-laundering. We say no more about them than that we take the view that the Judge in this case was entitled to treat the money laundering as having been very close to the fraud. What it was not, however, was an example of the general money-laundering service offered to numerous criminals, of the kind exemplified by a number of bureau de change or hawala banking operators. Whilst each case will depend on its own facts, it may often be true that such general launderers are not merely as culpable as the criminals generating the money but not infrequently more so, and often more culpable than are those who engage in the handling of the proceeds of a particular fraud, as here. In a case of this present type, it seems to us that there is relatively little difference in culpability between the architects of the fraud and the architects of the specific money laundering which was essential to its success. We think, however, that in this case we should respect the difference made by the Judge who heard the trial between Mehta and the other three defendants, which was no doubt intended to reflect both the difference in amounts for which they bore responsibility and a limited distinction between fraudsman and launderer. It is to be observed that in the case of Sharman he had been indicted for the cheat, but was acquitted on that count by the jury. 10. We bear in mind that all these defendants were of previous good character, or effectively so. That is by no means always the case in instances of carousel fraud. 11. Mehta was an organiser of the fraud which involved a loss of just over £7m. Applying the cases and the principles which we have set out, we are satisfied that a 10 year sentence is too long, not by a great deal, but by sufficient to make it necessary for us to adjust it. In our view the proper sentence after trial for a person in his position would ordinarily have been about 8 – 9 years. In his particular case the personal material available, not all of which was available to the trial Judge, merits a modest adjustment in that tariff. We give leave to appeal, quash the sentence of 10 years and substitute one of seven and a half years. To that extent his appeal against sentence is allowed. 12. In the case of the other defendants, and respecting the distinction which the Judge made between their case and that of Mehta, it seems to us that the proper sentence for conspiracy to launder about £6m ought to have been six and a half years. In each case, we give leave to appeal, allow the appeals, quash the sentences of eight years and substitute ones of six and a half years.

```yaml citation: '[2008] EWCA Crim 1491' date: '2008-07-15' judges: - LORD JUSTICE HUGHES - MR JUSTICE FIELD - HIS HONOUR JUDGE RICHARD BROWN (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: 2005/5015/C2 Neutral Citation Number: [2006] EWCA Crim 1622 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 6 June 2006 B E F O R E: LORD JUSTICE MOORE-BICK MR JUSTICE BURTON MR JUSTICE FULFORD - - - - - - - R E G I N A -v- SUKHJIT M - - - - - - - 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 DONNE QC appeared on behalf of the APPELLANT MR G CONNOR appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE MOORE-BICK: On 23rd August 2005 in the Crown Court at Inner London before His Honour Judge Quentin Campbell the appellant was convicted of two counts of rape by a majority of 11 to 1 and sentenced to three years' imprisonment on each count to run concurrently. He now appeals against conviction by leave of the single judge. 2. The complainant in this case was the appellant's wife. On 27th February 2004 a marriage took place in India between the appellant and the complainant who had met on only one occasion prior to the wedding, it being an arranged marriage. They spent two weeks together in India and there was a significant dispute at the trial as to whether the marriage had been consummated during that period. The appellant said that it had been; the complainant said that it had not. At any rate, if it was, sexual intercourse occurred on only one occasion during that period. 3. In March 2004 the appellant returned to this country. His wife remained in India to obtain an entry visa for this country and to complete her studies. 4. In September 2004 the appellant and his father travelled to India to collect his wife and they arrived back in this country on or about 12th September. The appellant and his wife lived in the family home at Feltham together with his parents, his brother and his sister-in-law. 5. The complainant said that from the outset the appellant had treated her with indifference and neglect. She also complained of overbearing behaviour and ill-treatment on the part of his parents after she came to this country. She said that there had been no sexual intercourse between them prior to the date of the offences in October 2004. 6. All those allegations were denied by the appellant. He, his parents, his brother and his brother's wife, all of whom gave evidence at the trial, said that he and his wife got on well and that no-one had ill-treated her. The appellant said that sexual intercourse had taken place between them with her consent on two occasions, once in September and once early in October. The complainant denied that. She said that sexual intercourse had taken place between them for the first time on or about 14th October, without her consent, and again on a second occasion on or about 15th October, also without her consent. 7. On 19th October the complainant went to the local temple which she was attending in order to have lessons in English. She was met there by one of her relations with whom she then departed. She left the family home that day taking with her some jewellery. According to the complainant she went to a police station at Hounslow to make a complaint of rape but was told to return the next day. That night she went to stay with her relatives in Luton. 8. The complainant said that on 20th October she went to another police station, again to make a complaint of rape, but was told to return the next day when it would be possible for her to make a statement with the assistance of an interpreter. Accordingly, on 21st October she went back to the police station at Luton where she was seen by a Police Constable Chand who spoke to her for about an hour, took a note of her complaint and took down her account in his notebook. He then referred the matter to specialist officers for further investigation. 9. Meanwhile, on 20th October, the appellant's family had contacted the police in order to inform them of what they alleged was the theft of jewellery from their home. Some time after that (the precise date has not been ascertained) the police contacted the complainant to inform her of that allegation. It is uncertain whether that occurred before or after she made her complaints of rape against the appellant. 10. At all events, in due course on 15th November 2004 the appellant was arrested and after being interviewed he was charged with two offences of rape. In due course, as we have said, he was convicted of those offences at the Inner London Crown Court. 11. The grounds of appeal in this case fall under three main heads. The first is that the judge failed to direct the jury properly on the need to give separate consideration to each of the two counts in the indictment. The second comprises a number of respects in which it is said that the lawyers representing the appellant failed to conduct his case in a competent manner with the result that the convictions cannot be regarded as safe. The third ground of appeal is that certain hearsay evidence was admitted without compliance with the statutory safeguards to the prejudice of the appellant. 12. As to the first of these grounds, although it was common ground at the trial that sexual intercourse had taken place on two occasions after the complainant had come to this country, there was a significant conflict about when and under what circumstances that had occurred. When the complainant made her statement to Constable Shand she said that she had been raped on one occasion. It was only when she made her written statement some days later that she alleged that she had been raped on a second occasion a day later. There was another discrepancy in her evidence in relation to the second of these occasions. In her written statement she said that the appellant had had sexual intercourse with her while she was asleep and that she had woken up after the act was complete. She said she could not remember the act of penetration. In her evidence at the trial, however, she said that she had been awake at the time and described how the appellant had removed her clothing before he had had sexual intercourse with her. 13. In the course of his summing-up the judge said that he would normally give a jury a clear direction to consider each count in the indictment quite separately and that it was in any event necessary for them to reach separate verdicts in relation to each count on this occasion. However, he then said that, having regard to the evidence in the case, they might think it inconceivable that they would find one allegation proved and one disproved. 14. Mr Anthony Donne QC submitted on behalf of the appellant that, because of the discrepancies in the complainant's accounts in relation to the second alleged rape, this was a case which called for a full direction to the jury as to the importance of considering each count in the indictment and the evidence relating to it quite separately. He submitted that there was a danger in the present case that the judge’s comment suggesting that it was unlikely that they would reach different verdicts on the two counts of the indictment may have led the jury to reach a decision on the first count and, having done so, to assume that the second count was proved as well without examining the evidence in relation to it with care. 15. This was clearly a case which turned on the credibility of the appellant on the one hand and the complainant on the other which in each case had to be judged in the light of the evidence as a whole. In theory, of course, the jury might have convicted on one count and acquitted on the other, but having regard to the nature of the case and the evidence before them it seems to us that it was inherently unlikely that they would reach the conclusion that the complainant had given truthful evidence about one of the two events and untruthful evidence about the other. Moreover, we think it highly unlikely, given the nature of the case, that any jury would have considered count 1 without also taking into account the evidence in relation to count 2, particularly in the light of the fact that the complainant had been fully cross-examined as to the discrepancies in her accounts of the second incident. If the discrepancies in her account of what occurred on the second occasion had led the jury to reject her evidence in relation to that count, it would have provided them with strong grounds for rejecting her account of what took place on the first occasion as well, and we do not think that they could fail to be aware of that. 16. In our view the judge would have been wiser to direct the jury on the need to give separate consideration to each count in the indictment in the usual terms, but the fact of the matter is that his comment did no more than reflect the reality of the situation and we are not persuaded that the nature of the direction that he did give renders the appellant’s convictions unsafe. 17. Mr Donne submitted that those acting for the appellant failed in a number of respects to conduct his defence as they should have done and that as a result the convictions are unsafe. When the appellant gave evidence he referred to a number of matters which might have been of some importance in throwing light on the nature of the relationship between himself and his wife. They included, first, the purchase of a new double bed for them both on 2nd October, two days before the appellant said that they had had consensual sexual intercourse; second, the arrangements that were being made for a party on 4th December for 400 or 500 people to celebrate their marriage; and third, the discovery of what was called at the trial a "love card" sent to the complainant by someone other than the appellant. None of these matters was put to the complainant in cross-examination. The omission was raised by the judge after the appellant had given evidence and it appears that he had some concern about the failure to put them to her. 18. Mr Donne submitted that the judge made his intervention because he was anxious to ensure that the defence case was put forward to best advantage. However, that is not how we read his remarks. In our view it is clear from his comments that the judge was concerned that the complainant had not had an opportunity to deal with the allegations which had been raised for the first time by the appellant in the course of giving his evidence. 19. Another piece of evidence that emerged at a very late stage was a card that had been sent by the complainant to the appellant after he had returned to England and while she remained in India. It is a card written in good English in very affectionate terms but at a time when the complainant said the relationship was an unhappy one. It is a matter to which we shall return in a moment. 20. The next item of evidence concerned a wedding party which the complainant attended with other members of the family on 15th and 16th October, that is, only a day or so after the first of the alleged rapes. A video recording was made of the party which showed, among other things, the complainant apparently in a relaxed state of mind and enjoying herself. However, although it might have been said that the video tended to undermine the complainant’s account of her relationship with the appellant and of the rapes, it was not put in evidence and the complainant was not asked about it. 21. Evidence was also given by the appellant's sister-in-law, RS, who had made a statement in which she dealt, among other things, with the issue whether the marriage between the appellant and the complainant had been consummated while they were in India. The complainant said that the marriage had not been consummated during that time and that she had told the appellant's sister-in-law of that fact. However, in her written statement RS had indicated that she would deny that the complainant had said that the marriage had not been consummated in India. In the event, however, she was not asked to deal with that matter. Mr Donne submitted that the appellant’s counsel was at fault in this respect and should have asked the witness directly whether the complainant had told her that the marriage had been consummated in India. She would then have said that she had not. It may be that there was an omission in this respect but we are not persuaded that it was of great significance in this case. 22. The appellant said that there were two other respects in which his lawyers had failed to prepare or present his case properly. The first related to the complainant’s evidence that she had gone to a local police station at Hounslow on 19th October to report the rapes but had been turned away. It was said that no attempt had been made by the appellant's lawyers to obtain any evidence of whether a complaint of that kind would ordinarily have been recorded. 23. The second concerned the complaint about the theft of the jewellery. Following the departure of the complainant from home on 19 th October the appellant’s family made a complaint to the police on 20th October that she had stolen jewellery from them and as a result the police telephoned the complainant at the address of her relations in Luton in order to obtain her comments. It might have been significant to know whether that telephone call was made before she made her allegation of rape against the appellant or afterwards, but the appellant's lawyers appear not to have investigated the matter or to have obtained evidence to identify exactly when that telephone call took place. 24. Counsel who appeared for the appellant at the trial has been asked to comment in the usual way on the criticisms that have been made of him. He has said that he had difficulty in obtaining proper instructions from the appellant. For example, he says that the evidence of the purchase of the bed was not mentioned until after the complainant had finished giving her evidence and that the card that the complainant had sent the appellant from India was not produced until after the close of the defence case. We have no reason not to accept what he says about those matters. It is difficult, therefore, to criticise counsel's for failing to put matters of this kind to the complainant in cross-examination. It is true, as Mr Donne submitted, that the jury was deprived of the opportunity of seeing her response to these and other matters, but in the absence of any supporting material there is no reliable basis for concluding that the effect of putting them to her would have been beneficial to the applicant's case. Other criticisms, such as the failure to obtain evidence of whether a complaint of the kind that was said to have been made to the police on 19th October would have been recorded and the failure to obtain evidence of the time at which the police called the complainant to ask her about the allegation of theft, are of uncertain significance unless one has some basis, which we do not, by which to judge what any such enquiries would have disclosed. In the case of the complaint to the police on 19 th October, we are conscious that the absence of evidence allowed the defence to comment to the jury in a way that might not otherwise have been possible. 25. It is fair to say that at first sight the card which the complainant sent the appellant from India is potentially of greater significance because it tends to undermine her account of the nature of the relationships between them at that early stage. However, as we have already indicated, this piece of evidence emerged very late in the day and in order to adduce it would have been necessary for counsel to apply to reopen the defence case. That raised considerations of a kind that he would not have had to confront if it could have been deployed in the normal course of the trial. Counsel who appeared for the appellant at the trial has explained that he took the view that it was not appropriate to make an application of that kind. Mr Donne submitted that this was such an important piece of evidence bearing on the credibility of the complainant that the omission to adduce it renders the conviction unsafe. 26. If the card had been in counsel's hands from the outset we think it likely that he would have made use of it and would have put it to the complainant in cross-examination, though the course he took with it might well have depended on how she responded to his initial questions. However, it was not so important in our view that it justified applying to reopen the defence case and thereby risking giving it an importance that it might not ultimately bear. It seems very unlikely that the card was written by the complainant herself, since her command of English at the time when she came to this country was said to be very poor, and although it was couched in affectionate terms, it was sent at a time when the couple had recently married and the complainant was hoping, and no doubt intending, that the marriage would be successful. Its terms are entirely consistent, in our view, with such an attitude on her part. We are not persuaded that the omission to deploy the card in evidence renders the convictions in the present case unsafe. 27. Finally, it is necessary to deal with a matter that was mentioned by prosecuting counsel in the course of his final speech. One of the complainant's relations, GK, had made a statement in which she spoke of a telephone conversation with the complainant's mother at a time when the complainant was still in India. As recounted in her statement, the complainant's mother had confirmed that the marriage had not been consummated at that time. When GK gave evidence, however, she mentioned that the telephone conversation had taken place, but did not recount any details of the conversation. 28. In the course of his final speech, counsel for the prosecution referred to the telephone conversation between the complainant's mother and GK. He suggested that there had been some discussion between them about the complainant's unhappiness and the reasons for it. Mr Donne submitted that counsel had effectively told the jury that the complainant's mother had told GK that the marriage had not been consummated while the couple were in India and that that was a serious error because by doing so he placed before the jury information which the court had previously been astute to ensure was withheld from them. 29. We are unable to accept that view of the matter and, even if it were correct, we should have been unable to attach to it the significance suggested by Mr Donne. In the first place, as we read the transcript of counsel's speech, he did not go as far as Mr. Donne submitted. One might debate at some length what nuances are to be attached to the language that he used and in particular to the reference he made in that context to the "non-relationship" between the complainant and the appellant, but the passage is a short one in counsel's speech and was in any event overtaken by the judge's reminding the jury of the evidence that had actually been given in the course of the trial. In our view there is nothing there of sufficient significance to render the convictions unsafe. 30. Mr Donne very properly submitted that all these matters are of cumulative effect and one can well understand that there are circumstances in which a number of matters, each of relatively minor significance, do, when taken together, leave the court satisfied that a conviction is unsafe. In our view, however, this is not one of those cases. We have to decide, viewing the matter overall, whether these convictions are unsafe and despite all that Mr Donne has urged upon us we are not persuaded that they are. In those circumstances the appeal must be dismissed.

```yaml citation: '[2006] EWCA Crim 1622' date: '2006-06-06' judges: - LORD JUSTICE MOORE-BICK - MR JUSTICE BURTON - MR JUSTICE FULFORD ```

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 454 Case No: 201500783 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT CARDIFF His Honour Judge Hughes T20117951 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/04/2016 Before : LORD JUSTICE DAVIS MR JUSTICE TURNER and MRS JUSTICE ELISABETH LAING - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - AD Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Jones (instructed by Crown Prosecution Service ) for the Appellant Mr Mark Barlow for the Respondent Hearing dates : 18 th March 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Turner: INTRODUCTION 1. On 28 June 2012 in the Crown Court at Cardiff the appellant was convicted by the jury on all 11 counts of the indictment laid against him. He appeals, out of time, against conviction and sentence with the leave of this Court. 2. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to 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 the victim of these offences. THE OFFENCES 3. There were two alleged victims of the appellant’s offending. They were his son and daughter to whom we shall refer as LF and TD respectively. The appellant’s former wife was the mother of the complainants. We refer to her as AH. They all lived together as a family until 1994 when the appellant and his wife separated and, subsequently, divorced. 4. On 9 July 2011, the appellant was arrested in relation to sexual offences which he was alleged to have committed against both LF and TD when they were young children between 1990 and 1994. In interview he denied all of these allegations and the matter duly proceeded to trial. THE COUNTS ON THE INDICTMENT 5. Counts 1 and 2 alleged gross indecency with a child relating to repeated occasions when the appellant had allowed his daughter to masturbate him. Counts 3 and 4 alleged attempted buggery relating to repeated occasions upon which the appellant had attempted to penetrate his daughter’s anus with his penis. Counts 5 and 6 alleged indecent assault on a female relating to repeated occasions upon which the appellant had touched his daughter’s vagina. Count 7 alleged gross indecency with a child relating to an occasion when the appellant allowed his daughter to kiss his penis. In respect of the first seven counts on the indictment the Court passed concurrent sentences in the total of 5 years imprisonment. The remaining counts related to offences alleged to have been perpetrated by the appellant against his son. Counts 8 and 9 alleged indecent assault relating to repeated occasions when the appellant had touched his son’s penis. Counts 10 and 11 alleged gross indecency with a child relating to repeated occasions when the appellant had allowed his son to touch his penis. In respect of counts 8 to 11 inclusive the Court passed sentences concurrent to each other in the total of three years imprisonment but to run consecutively to the sentences imposed in respect of the offences which he had committed against his daughter, thereby giving a total of eight years imprisonment. THE FIRST GROUND OF APPEAL 6. Under the first ground of appeal, the appellant asserts that two of the counts on the indictment suffered from such fatal drafting flaws that the convictions thereunder are unsafe and must be quashed. The relevant counts are 8 and 9 and relate to the allegations that between 1990 and 1994 the appellant had indecently assaulted his son on at least two occasions: “ Count 8 STATEMENT OF OFFENCE INDECENT ASSAULT, contrary to section 14(1) of the Sexual Offences Act 1956. PARTICULARS OF OFFENCE [D], between 13 th May 1993 and the 1 st August 1994, indecently assaulted [TD], a boy under the age of 14 years. Count 9 STATEMENT OF OFFENCE INDECENT ASSAULT, contrary to section 14(1) of the Sexual Offences Act 1956. PARTICULARS OF OFFENCE [D], between 13 th May 1993 and the 1 st August 1994, other than in Count 8, indecently assaulted [TD], a boy under the age of 14 years.” Such conduct as particularised amounted to indecent assault on a boy contrary to section 15 of the Sexual Offences Act 1956. Regrettably, the Statement of Offence in relation to each of these counts referred not to section 15 but to section 14 of the 1956 Act as the relevant section. 7. Section 14 provides: “14 Indecent assault on a woman. It is an offence…for a person to make an indecent assault on a woman.” Self-evidently, the appellant could not have perpetrated an offence under section 14 against his son. 8. Unhappily, this drafting error was not spotted by either of the parties or by the Court at any stage before, during or after the trial. Indeed, it came to light only when the papers were reviewed by the Registrar when the appellant was seeking leave to appeal on other grounds. Thus, the question now arises as to whether this mistake is fatal to the safety of the convictions under these two counts. 9. At the relevant time, the procedural position was governed by the Criminal Procedure Rules 2011: “14.2 . —(1) An indictment must be in one of the forms set out in the Practice Direction and must contain, in a paragraph called a ‘count’— (a) a statement of the offence charged that— (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and (b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.” 10. It is to be noted that the Indictment Rules 1971, which were repealed on 2 April 2007 by rule 3 of the Criminal Procedure (Amendment) Rules 2007/699, had been, in some respects at least, more prescriptive as to the required form and contents of the indictment than the new rules which replaced them: “5.-(1) Subject only to the provisions of rule 6 of these Rules, every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused person is charged describing the offence shortly, together which such particulars as may be necessary for giving reasonable information as to the nature of the charge… 6. Where the specific offence with which an accused person is charged in an indictment is one created by or under an enactment, then (without prejudice to the generality of rule 5 of these Rules)- (a) the statement of the offence shall contain a reference to- (i) the section of, or the paragraph of the Schedule to, the Act creating the offence in the case of an offence created by a provision of an Act; (ii) the provision creating the offence in the case of an offence created by a provision of a subordinate instrument; (b) the particulars shall disclose the essential elements of the offence: Provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it; (c) it shall not be necessary to specify or negative an exception, proviso, excuse or qualification.” 11. In R v Clarke [2015] 2 Cr. App. R. 6 this Court was considering an appeal in respect of the adequacy of the relevant Particulars of Offence and concluded at paragraph 18: “As is pointed out at para.D11.23 of Blackstone, the Crim PR now require less than was required under r.6(b) of the Indictment Rules 1971. The sole question is whether the particulars make clear what the prosecutor alleges against the defendant. In the present case there can be no doubt that it was clear what was alleged. The indictment was not therefore insufficient, though it was very, very poorly drafted and ought to have been amended.” 12. In Clarke , however, there was and could have been no criticism of the Statement of Offence which had correctly identified the relevant legislation under which it was alleged the appellant had offended. 13. The question arises as to whether the change in the wording of the rules relating to the contents of the Statement of Offence also calls for a similar broadening of the test of sufficiency as was found in Clarke to apply to the Particulars of Offence. In our view, it does not. The identification of “any legislation that creates” the offence charged (under the new Rules) is no more than a shorthand way of referring to the relevant section of the statute or provision of the subordinate instrument referred to under the 1971 Rules. Any other interpretation would lead to the absurd conclusion that so long as the right statute or subordinate instrument is identified in the Statement of Offence then the indictment is compliant with the rules however inapposite the specific section or provision relied upon. 14. This conclusion is not, however, determinative of the issue. In R v Nelson (1977) 65 Cr. App. R. 119, this Court held that the terms of the 1971 rules should be interpreted as being directory rather than mandatory. There could be no suggestion that the Criminal Procedures Rules, in so far as they relate to the form and content of indictments, should be approached in any more inflexible way. Accordingly, the question arises as to the circumstances in which a breach of the terms of CPR 14.2 can properly be regarded as being inconsistent with the safety of a conviction which has been secured upon a defective indictment. 15. In R v Graham [1997] 1 Cr App R 302 at p 309 the Court observed: “Our sole obligation is to consider whether a conviction is unsafe. We would deprecate resort to undue technicality. A conviction will not be regarded as unsafe because it is possible to point to some drafting or clerical error, or omission, or discrepancy, or departure from good or prescribed practice…But if it is clear as a matter of law that the particulars of offence specified in the indictment cannot, even if established, support a conviction of the offence of which the defendant is accused, a conviction of such an offence must in our opinion be considered unsafe. If a defendant could not in law be guilty of the offence charged on the facts relied on no conviction of that offence could be other than unsafe.” 16. R v McKenzie [2011] 1 W.L.R. 2807 was decided on facts not dissimilar to the circumstances of the instant appeal. The defendant in that case had been committed for trial on an indictment which included seven counts of indecent assault. By the time the matter was listed to be heard, however, his mental health had deteriorated to the extent that he was not fit to be tried. Accordingly, pursuant to section 4A of the Criminal Procedure (Insanity) Act 1964 (as amended), a jury was empanelled to determine whether the defendant had done the acts charged. All seven counts were defective. The allegations related to sexual assaults on a male but, as in the instant case, the Statements of Offence each referred to section 14 rather than section 15 of the 1956 Act. The jury found that the defendant had done the acts charged. The jury’s findings were challenged on appeal on the basis that the indictment was irremediably flawed as a result of these errors. 17. In allowing the appeal, the Court held at paragraph 34: “It seemed to us that the wording of section 4A is clear. To return a finding the jury must be satisfied that the accused did the act (or made the omission) charged against him as the offence. In this case the act charged against the defendant as the offence was indecent assault contrary to section 14(1) of the 1956 Act—ie indecent assault on a woman. The actus reus of that offence could not possibly be proved by evidence that the defendant had indecently assaulted S, who was a young man, even though the particulars asserted that that was what he had done.” The Court, having referred to Graham went on to observe at paragraph 41: “In this case neither the particulars pleaded in those counts, nor the evidence of S, could possibly establish that the defendant had done the act charged in each case of indecent assault contrary to section 14(1) of the 1956 Act. Thus we concluded that it was beyond argument that the findings of the jury in relation to the seven counts of indecent assault were unsafe.” The appellant relies on this case to support his contention that his conviction under the two relevant counts was unsafe. 18. The respondent counters this approach with reference to the more recent authority of R. v Stocker [2014] 1 Cr. App. R. 18. In that case, the defendant was correctly charged with a number of offences of indecent assault, contrary to s.15(1) of the Sexual Offences Act 1956, after four young men alleged that he had indecently assaulted them between 1985 and 1997. At trial, another young man made an allegation of anal rape which he claimed had occurred on New Year’s Day 2008. The jury was discharged, an investigation ensued and, as a result, the defendant was also charged with rape, contrary to s.1(1) of the Sexual Offences Act 2003. The Crown Prosecution Service drafted the indictment, which was produced electronically and the prosecutor clicked, in error, on the statement of offence relevant to an offence of rape under s.1(1) of the 1956 Act, rather than under the 2003 Act. The defendant was tried on five counts of indecent assault contrary to s.15(1) of the 1956 Act and one count of rape, with the statement of offence still showing the wrong statute. The evidence served in advance of trial, the particulars of the offence which were read to the defendant upon arraignment, the prosecution opening of the case and the evidence called by the prosecution all made it plain that the allegation related to a rape committed on a day at the end of 2007 or beginning of 2008 and the trial proceeded as if the rape charge had been properly brought under the 2003 Act. The judge directed the jury in appropriate terms for the indecent assault offences charged under the 1956 Act and for a rape offence charged under the 2003 Act. The defendant was convicted of all six counts. After the defendant was granted leave to appeal against sentence, the error in the indictment was noticed and the defendant applied for leave to appeal against the rape conviction out of time. 19. Granting the application for leave but dismissing the appeal, the Court held: “42 In our judgment, there is a clear judicial and legislative steer away from quashing an indictment and allowing appeals on the basis of a purely technical defect. The overriding objective of the criminal justice system is to do justice—to ensure the acquittal of the innocent and the conviction of the guilty. To that end, procedural and technical points should be taken at the time of the trial when they can be properly and fairly addressed. 43 However, the question for us is whether this is a purely technical defect or whether the count itself was fundamentally flawed because it breached r.14(2) by failing to identify accurately the legislation allegedly contravened. The clear purpose of r.14(2) is to ensure that an accused has sufficient information to know the case he has to meet and for all parties to know which statutory provisions apply. Here, the position could not have been clearer. Everyone understood and proceeded upon the basis that the appellant was charged with an offence under the 2003 Act committed in 2007 or 2008. The particulars of the offence, which were read to the appellant upon arraignment, the evidence served in advance of trial, the prosecution opening of the case, and the evidence called by the Crown all made it plain that the Crown’s allegation related to a rape committed on a day at the end of 2007 or beginning of 2008. (The date was in fact altered from 2007 to 2008 as a result of the complainant’s evidence). The appellant and his legal representatives knew all they needed to know about the case he had to meet and any relevant statutory provisions which applied. 44 The judge summed up to the jury as if the offence alleged in the statement of offence was one of rape contrary to the 2003 Act (as opposed to the other counts alleging indecent assault contrary to the 1956 Act). He directed the jury on the law and factual issues relevant to an offence of rape contrary to the 2003 Act. The jury, in effect, convicted him of an offence of rape contrary to s.1(1) of the Sexual Offences Act 2003. Rape had remained an offence in law throughout the period with which we are concerned. Thus, from beginning to end of the process, the charge here was, in substance, one of rape under the 2003 Act. As far as the judge, jury, prosecution and defence were concerned, the appellant was tried on and convicted of the right offence (rape) under the right Act. The appellant was properly before the Crown Court, the indictment was in every other respect in proper form and, therefore, valid, and the particulars of offence could, and did, support a conviction of rape contrary to the 2003 Act. This was not a “bad indictment” or a “bad count” and the offence of which he was convicted was and is known to law. 45 The only error here was to click the 1956 box rather than the 2003 box. It could have been cured easily by an amendment at any time. That seems to us to be something of a pure technicality. It has caused no prejudice whatsoever. We have borne very much in mind Lord Bingham’s observations in Clarke and McDaid about not resorting to “wholesale jettisoning of all the rules affecting procedure” and we have focused on the legal effect of the breach of the rules. Having done so, we cannot accept that an error in the date of the statute on these facts is so fundamental as to render the proceedings a nullity or that the draftsman of r.14(2) (also the draftsman of the overriding objective) would have intended such an outcome for a breach of this kind. 46 The facts of this case are clearly distinguishable from the facts in Shields , MC and Abdul in which the appellants were, in every respect, convicted of the wrong offence charged under the wrong statute. 47 In our judgment, nothing has occurred during this trial to render the indictment a nullity and the conviction unsafe. In the circumstances, we do not need to consider our powers under and the application of s.3 of the CAA .” 20. There is undeniably a tension between the cases of McKenzie and Stocker with the latter case pointing in the direction of a growing prioritisation of substance over form. More recent cases have continued this trend. 21. In R v White [2014] 2 Cr. App. R. 14 this Court observed at paragraph 20: “Furthermore, the recent trend has been to look at indictments purposively, that is to say, as safeguards against unfairness. Where no material unfairness whatsoever is caused to the defendant, the courts are increasingly reluctant to take too technical or formalistic an approach. Thus, in R v Stocker [2013] EWCA Crim 1993 ; [2014] 1 Cr. App. R. 18 (p.247) , this court surveyed the authorities on nullity, and noted (per Hallett LJ at [42]) “a clear judicial and legislative steer away from quashing an indictment and allowing appeals on a purely technical defect”. We reject the argument that the indictment was a nullity.” 22. The determination of which any defects in any given indictment are properly to be categorised as “fundamentally flawed” rather than amounting to “a mere drafting or clerical error” is bound to be a particularly fact sensitive issue. A useful illustration of this is provided by the case of R v Boateng [2016] EWCA Crim 57 . The indictment in that case was riddled with errors some of which were held on appeal to be fatal and others to be merely technical. 23. In respect of two of the counts on the indictment, the Statement of Offence and Particulars of Offence were both drafted so as to refer to an offence of which, on the evidence, the appellant could not have been guilty. The Court observed at paragraph 15: “We do not find it necessary to resolve either the evidential issue or the interpretation issue in relation to s.10 because, in our judgment, the pleading issue cannot possibly be regarded as “a mere drafting or clerical error” or “a purely technical defect”. The counts were “fundamentally flawed” ( Stocker at [43]). They breached what was then Rule 14.2 of the Criminal Procedure Rules in that they did not identify the correct legislation and did not contain such particulars of the conduct constituting the commission of the offence as to make it clear what the prosecutor was alleging against the defendant. Each count alleged the wrong subsection in the statement of offence and the wrong details in the particulars of offence. The jury could not have been given any legal directions in relation to the counts as pleaded. The judge would have had to direct the jury to ignore everything that appeared on the face of the indictment in relation to these counts. No direction could have been given that the appellant could be convicted of an offence under s.24A(1)(b) by way of alternative to an offence under s.24A(1)(a). It is not an alternative offence. Further, it was never suggested by the prosecution in the lower court that s.24A(1)(b) was the offence it intended to pursue. The possibility was not raised until after the appeal had been instituted. Ground 1 in relation to counts 2 and 12 succeeds.” 24. The feature of central importance on this analysis is that it was not a matter of inadvertence that the relevant counts referred to the wrong section. The prosecution intended to allege a breach of s.24A(1)(b) and the drafting of the indictment perfectly reflected that intention. The form was flawless. It was the substance which was misconceived. 25. This key distinction is well illustrated by the approach of the Court in Boateng to a third count in the indictment which, although defective, was found not to have led to an unsafe conviction. The Statement of Offence correctly referred to the offence of facilitating the breach of UK immigration law by a non-EU citizen. In the Particulars of Offence, the law which the prosecution alleged had been broken was section 10(1)(c) of the Immigration Act 1999. 26. There were two errors here. The first was that the Act was wrongly named. It should have been identified as the Immigration and Asylum Act 1999 and not the Immigration Act 1999. The appellant, however, realistically conceded that this was a mere technical error. The second error was more serious. The Particulars of Offence referred to the wrong section of the Act. It ought to have alluded to section 3(1)(b) but instead rested upon section 10(1)(c). The section actually referred to was purely procedural in content and could never have constituted a provision breach of which could have fallen within the parameters of the offence referred to in the Statement of Offence. Nevertheless, the Court found that this error did not vitiate the safety of the conviction and observed: “Mr Douglas-Jones concedes that the particularised breach of immigration law alleged in count 3, namely s.10(1)(c), was wrongly identified. The breach of immigration law of facilitating AKB remaining in the UK without leave to remain stemmed from s.3(1)(b) of the 1999 Act and not s.10(1)(c). Strictly, therefore, it was that section that should have been referred to in the particulars of offence. Nonetheless, the statement of offence was correct and S.10(1)(c) provided the mechanism of removal under s.3(1)(b) and was therefore not irrelevant. Furthermore, although the reference to s.10(1)(c) was in error, the particulars of offence were otherwise accurate and, if the appellant was not sure which Act was alleged to have facilitated the commission of an immigration law, he could have sought further particulars and would then have been referred to s.3. 19. In our judgment, the errors in the drafting of count 3 are less significant than those already referred to in counts 2 and 12. In the context of Rule 14.2, the statement of offence identified the correct legislation and the particulars of offence contained particulars of the conduct constituting the commission of the offence so as to make it clear what was being alleged against the appellant. In the context of Graham and Stocker , the error in relation to s.10(1)(c) was akin to a “mere drafting or clerical error” and did not invalidate the count. Ground 2 in relation to count 3 fails.” 27. Taking a similar approach to that adopted in Boateng , we would identify the following particularly salient features of the instant appeal: i) The mistake was undoubtedly no more than a simple drafting or clerical error. It is to be noted in this specific regard that the mistake in the present case had not been made in the original summons which had correctly identified the relevant section. There had evidently been a mere clerical slip at the stage of drafting the indictment. Such a slip falls comfortably within the same category of error as the inadvertent clicking of the wrong box in Stocker and indeed of a kind as alluded to in Graham itself. ii) By analogy with Stocker , from the beginning to end of the process the charge here was, in substance, one of indecent assault under section 15 of the 1956 Act. As far as the judge, jury, prosecution and defence were concerned, the appellant was tried on and convicted of the right offence (indecent assault) under the right Act. The appellant was properly before the Crown Court, the indictment was in every other respect in proper form and, therefore, valid and the particulars of offence could, and did, support a conviction of indecent assault contrary to section 15 of the 1956 Act. The trial, and defence case, would have been conducted in precisely the same way, irrespective of the errors in the Statements of Case. Indeed, it may plausibly be suggested that the defect in Stocker was more serious than in the instant case. At least the offence under section 14 was known to law at the time of this appellant’s offending, whereas the offence of rape (in its significantly different pre 2003 form) had been removed from the statute book some three years and nine months before the date of Mr Stocker’s offending. iii) McKenzie , has to be read in the light of the subsequent decision in Stocker and in any event was a case which involved a determination under s. 4A of the Criminal Procedure (Insanity) Act 1964. iv) The appellant was undoubtedly guilty on the verdict of the jury of committing an offence of indecent assault. This is not a case in which the offence identified in the Statement of Offence differs so significantly in substance from the actual nature of the offending proved that it would be objectionable for the matter safely to remain on the appellant’s record in its present form. The gender of the victim was, in the circumstances of this case, the only material difference between the scope of operation of the offences under sections 14 and 15 respectively. Further, under paragraphs 17 and 18 respectively of the second schedule to the 1956 Act the statutory maximum sentences in respect of each section were identical at the level of ten years imprisonment. v) There was, and could have been, no suggestion that the slip in the drafting of the Statement of Offence (i) has caused any prejudice whatsoever to the appellant, (ii) has caused a breach of his Convention rights or (iii) has otherwise rendered the trial process unfair. In this context, the Court must have at the forefront of its mind Rule 1.1 of the Criminal Procedure Rules which post-dates Graham and provides: “(1) The overriding objective of this new code is that criminal cases be dealt with justly. (2) Dealing with a criminal case justly includes— (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights.” Against this background, a finding that the wholly technical flaws in the drafting of the two counts under consideration on this appeal should mandate the quashing of the convictions thereunder would be starkly inconsistent with the overriding objective which now directly governs the proper interpretation of the rules relating to the forms and contents of indictments. 28. We are therefore satisfied on the facts of the present appeal that the defects in the indictment, while reflecting a degree of culpable oversight on the part of those whose responsibility it was to get it right, did not render the convictions thereunder unsafe. 29. This finding renders it strictly unnecessary for us to go on to consider a further issue relating to the now hypothetical scope of the application of section 3 of the Criminal Appeal Act 1968 to the circumstances of this appeal. However, since the matter was argued before us and the Court in Stocker gave no guidance on the matter we can see some merit in expressing our views. 30. Section 3 provides: “ Power to substitute conviction of alternative offence . (1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence [to which he did not plead guilty] and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence. (2) The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict 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.” 31. In Graham the Court identified the scope of this provision thus: “Before this Court could substitute a conviction of an alternative offence the prosecution would have to establish two requirements: (1) that the jury could on the indictment have found the appellant guilty of some other offence (offence B) and (2) that the jury must have been satisfied of facts which proved the appellant guilty of offence B. As to (1) it would be sufficient if looking at the indictment (not the evidence) the allegation in the particular count in the indictment expressly or impliedly included an allegation of offence B. A count charging offence A impliedly contains an allegation of offence B if the allegation in the particular count would ordinarily involve an allegation of offence B and on the facts of the particular case did so. As to (2) this Court has only the verdict of the jury to go on. The fact that the jury did not have a proper direction as to offence B is a highly relevant consideration, as is the question whether there are reasonable grounds for concluding that the conduct of the defence would have been materially affected if the appellant had been charged with offence B. Examination of previous practice indicates that the power in section 3 of the 1968 Act has usually been exercised in relation to offence of violence or public order offences by substituting a lesser offence for the offence charged, there being in such instances a clear hierarchy of offences at common law or by statute.” 32. In R v Shields [2012] 1 Cr App 9, the defendant had by a slip been charged with an offence of being in breach of a Sexual Offences Order under the Crime and Disorder Act 1998, rather than, as he should have been, breach of a Sexual Offences Prevention Order under the Sexual Offences Act 2003 . He was convicted but the conviction was quashed on appeal. The Court of Appeal held that such an error could not be cured by resort to section 3 of the Criminal Appeal Act 1968. The jury could not, on the indictment , have found the defendant guilty of some other offence. The indictment could not be taken to include, by implication, an allegation of breach of a Sexual Offences Prevention Order under the 2003 Act. 33. In the light of the wording of the section and the authorities to which we have referred, we consider that it cannot be argued that the offence of indecent assault on a man could “ordinarily involve an allegation of” an indecent assault on a woman. On the contrary, the two offences are mutually exclusive. It is obvious that the jury must have been satisfied of facts which proved the appellant guilty of indecently assaulting his male victim, for the purposes of section 3 but this conclusion satisfies only the second limb of the test propounded by the Court in Graham and not the first. 34. Accordingly, we would have concluded that if (contrary to our actual findings on this appeal) the defects in the relevant counts on the indictment had rendered the convictions thereunder unsafe, section 3 would not have enabled the Court to substitute convictions under section 15 of the 1956 Act. THE EVIDENCE AT TRIAL 35. The remaining grounds of appeal relate to the admissibility of certain evidence and the directions which the trial judge gave to the jury in respect thereof during the course of his summing up. The examination of these grounds, therefore, now calls for a somewhat more detailed description of the evidence relied upon by the prosecution and defence at trial. 36. The appellant’s daughter gave an achieving best evidence (“ABE”) interview on 20 May 2011. A DVD recording of the interview was played as her evidence in chief at trial. During that interview, she said that her father was a heavy drinker, and from around the time she was 7 years old, it was her job to tuck her father into bed when he came home from the pub. She would get into bed with him and he would make up a bedtime story for her. She would touch his penis and her father would ask her to keep on doing it. These allegations related to counts 1 and 2 on the indictment. 37. She went on to say that he would on occasion pull her pyjamas down and try to “poke” her anus with his penis trying, albeit unsuccessfully, to penetrate her. The applicant never actually penetrated her because she kept her legs as tight as possible, and clenched her buttocks. These allegations related to counts 3 and 4 on the indictment. 38. She also said that he would pull her pyjamas down and run his hands between her legs and over her vagina . These allegations related to counts 5 and 6 on the indictment. 39. On one occasion, when she was about 9 years old, he pulled her head down onto his penis and she had to kiss the top of it. This allegation related to count 7 on the indictment. 40. LF said that the incidents of sexual abuse took place around two or three times a week and that each episode lasted for around an hour. She thought that this had taken place when she was between the ages of 7 and 10. 41. She said that when she was 10 years old she told her mother that her private parts were sore although she did not tell her what her father had been doing. She recalled that she was taken to see a female doctor and had been prescribed some cream. Under cross-examination, her mother confirmed that she remembered a time when LF came to her because she was sore and so she took her to the doctor. The diagnosis was of thrush. 42. The abuse stopped abruptly when LF’s parents separated and divorced. Thereafter, when she was about years old 12, LF told a school friend that she had been sleeping with her father but that they had not had sex. At that time she had asked her mother whether she was a virgin “because of dad” and her mother had cried in response. Her mother’s evidence was to the effect that LF came home from school one day and said her friend had told her that because she had slept with her father she was no longer a virgin. She said she told her not to be silly and at that stage honestly did not think that anything untoward had happened. 43. In 2007, LF told the whole family what had happened including her brother, TD. TD confirmed in evidence that this conversation had indeed taken place. In her evidence, LH’s mother said that when her daughter was at university her boyfriend told her that LF had told him that she had been sexually abused by her father. She then arranged for LF to see a counsellor, Pauline Craig. Ms Craig gave evidence to the effect that she saw LF between August and November 2007 on a weekly basis. Although AH would bring her to the sessions, she always saw LF on her own. She did, however, see AH separately on two occasions. She said her recollection was that LF said her father drank a lot, came home drunk, went to bed and her mother would send her up to say goodnight. Then the abuse would occur. He would ask her to play with him and he would touch her as well. She told her it happened frequently. 44. After she had undergone counselling, LF wrote a letter to her father referring to his abuse which she and her brother delivered to his address. She had written the letter because she could not cope anymore. She told her brother that she had been abused but did not go into detail. He did not mention to her at that time that he had also been abused. Her brother gave evidence to the effect that he had never talked to his sister about the detail of the letter. After they had delivered the letter, TD said that his father’s new wife had telephoned and wanted to talk to him and LF about it but he could hear his father in the background so he told her that there was nothing to talk about. 45. Shortly afterwards the appellant sent his daughter a text message in which he said that he could not remember that far back because he had been drunk but that he was sorry if he had hurt her. She kept the message for a while but she subsequently lost her phone and, with it, the message. 46. TD gave evidence to the effect that once or twice a week his father would put him to bed. When he was in bed, the applicant would touch his penis and try to masturbate him. This allegation related to counts 8 and 9 on the indictment. 47. He said his father would also take hold of his hand and place it on his (the appellant’s) penis and tell him to move it up and down. This allegation related to counts 10 and 11 on the indictment. 48. TD said that, at the time, he did not realise that anything was wrong with what had happened. However, when he was about 13 years old he began to realise that it was not normal. He did not speak to his father about what had happened at that stage because, despite everything, he continued to look up to him . 49. Between 2007 and 2010 however, TD was drinking too much and taking drugs. He contemplated suicide. In October 2010 he wrote a letter to his mother in which he had told her that LF was not the only child the applicant had abused. His mother confirmed that she had received this letter. 50. The appellant denied all of the allegations made against him and said that his son and daughter had fabricated them. He speculated that his son was taking revenge because he had refused to give him money with which to buy a car and that his daughter was punishing him for neglecting her after he had separated from her mother. The defence called the appellant’s second wife, his step daughter and his son by his second marriage in support of some aspects of his case. GROUND TWO 51. This ground is concerned with the admissibility of the evidence as we have outlined it relating to the communications made by the victims to the various third parties concerning what had happened to them in the context of the applicant’s alleged offending. 52. The appellant complains that the judge ought to have analysed each of these communications to determine whether or not section 120 of the Criminal Justice Act 2003 applied. Thereafter, he should have given the jury bespoke directions as to the way in which to approach each communication depending upon whether or not it fell within the parameters of section 120. 53. The rationale behind this complaint is that before section 120 came into force evidence of complaints could only be relied upon by the prosecution as evidence of consistency going to the credibility of the complainant. They could not be relied upon as evidence of the truth of the contents of the complaint. 54. Section 120 changed all that. It provides, in so far as is material: “ Other previous statements of witnesses (1) This section applies where a person (the witness) is called to give evidence in criminal proceedings. (2) If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible… (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. (5) The first condition is that the statement identifies or describes a person, object or place. (6) The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings. (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… (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…” 55. The appellant contends that not all of the communications admitted into evidence fell within the scope of section 120 and that therefore there was a danger that the jury might impermissibly have treated the contents of those not covered by the section as evidence of their truth and not merely as evidence of consistency going to credibility. 56. A closer look at the summing up, however, reveals these concerns to be unfounded. In fact, the judge did not invite the jury to approach the communications on the basis that any of them were evidence of the truth of their contents. On the contrary, he specifically directed them only on the basis that they were relevant to consistency. Thus, in this regard his summing up was in effect more favourable to the defence than it would have been had the judge identified some of the communications as capable of being taken into account on the issue of the truth of what was said. 57. In any event, we are entirely satisfied that these communications would have been admissible as evidence of any matter stated on the basis that they all fell within section 114 (d) of the Criminal Justice Act 2003 Act as hearsay evidence that was admissible in the interests of justice. This factor alone would have been a sufficient basis upon which to conclude that the matters complained of did not render the convictions unsafe. 58. It was further argued under this ground that the judge ought to have directed the jury that evidence of the complaints made by LF and TD could not provide independent support to their respective allegations because the source in each case remained the witness. However, the learned judge said this: “During the case you have heard evidence, not only from [LF] and [TD] about what they say happened to them, but also from other witnesses, for example , their mother and [LF’s school friend] of what they were told by [LF] and [TD] had happened to them, and I will remind you of that evidence shortly. When a person gives evidence of what they were told by a complainant, that person does not become a witness as to what actually happened because obviously they were not present themselves to witness the events. They simply reporting what a complainant told them about them.” [Emphasis added]. This passage, in our view, provides a complete answer to the appellant’s contentions on this point. The judge was plainly not limiting his observations to the two witnesses he had expressly identified. He was referring to them specifically as examples of those witnesses to whom his general direction applied. It cannot realistically be argued that the jury could reasonably have concluded that the other witnesses to whom complaints were made could, in contrast to those which the judge took as his examples, be treated as if they were witnesses to what had actually happened. 59. Indeed, we would go so far as to say that even if the judge had not given a warning in the terms which he did then, although by no means ideal, it would not, in the particular circumstances of this appeal, have rendered the convictions unsafe. After all, as we have already observed, the judge did not even direct the jury, as he could have done, that the evidence of any of the complaints could support the truth of what the victims were saying. He limited his directions in this regard to the issues of consistency and credibility. There was, therefore, no danger that the jury would venture into the obviously irrational speculation that the persons to whom the complaints were made could be treated as if they were actually independent witnesses of the abuse. GROUND 3 60. Under this ground, complaint is made that the trial judge ought not to have allowed evidence of repeated complaints to be adduced before the jury. For example, it is contended that the evidence of what LF told Ms Craig should not have been admitted because it amounted to no more than a repetition of complaints which she had made earlier. 61. It is to be noted, however, that there is no rule of evidence precluding the admission of repeated complaints. By way of example, in R v MH [2012] EWCA Crim 2725 this Court made no criticism of the admission into evidence of repeated complaints by a child victim of sex offences. 62. Each case must, of course, be decided on his own facts but it is to be noted that it was left open to the jury in the instant case to treat the repeated complaints as not being supportive of the credibility of the complainants but, alternatively, as undermining it. As the trial judge said in his summing up: “If what they reported to others previously is consistent with what they say in court, you may think that supports their credibility as a witness. On the other hand, if it were the case that the complaints to others made by the two of them were different from what they said in court, then you might think that that would, in some way, undermine their credibility as witnesses…” 63. For example, it would have been open to the jury to have concluded, had they thought it right so to do, that LF’s failure in her first complaints to tell her mother that she had been sexually assaulted by her father undermined the credibility of her later accusations. This was not, therefore, a case in which the admission of the repeated complaints necessarily redounded to the disadvantage of the appellant. As a matter of fairness, it was entirely right to leave it to the jury to determine what weight should be given to them and whether such weight should tell in the balance for or against the appellant. 64. In addition, many years had elapsed in this case between the time when the offences were alleged to have been committed and the date when the appellant was arrested. If the jury had been precluded from hearing how the allegations had gradually come to light and what complaints had been made over this period and with what persistence, then they would have been left with a potentially misleading vacuum of information. There would arise a real risk, however carefully they might have been directed not to speculate, that the passage of time otherwise wholly unaccounted for in the years leading to trial would serve to hinder rather than help them reach fair and just conclusions on the evidence. GROUND 4 65. Finally, the appellant criticised the judge for omitting to tell the jury that the diagnosis of thrush was not, in itself, evidence that LF had been sexually abused. 66. This argument is devoid of merit. There had been no suggestion whatsoever from the prosecution or any other source during the course of the trial that the diagnosis of thrush could support the allegation of abuse. In his summing up, the judge gave not the slightest hint or indication that this could have been the case. There can, therefore, in the circumstances of this case be no basis upon which to suggest that any reasonable jury could have misled themselves so badly as to reach a baseless conclusion advocated by no one and wholly unsupported by any evidence. CONCLUSION 67. We are, therefore, satisfied that none of the grounds relied upon in this appeal reveal these convictions to have been unsafe and this appeal is dismissed. 68. For the sake of completeness, we note that the appellant would have contended that if his first ground of appeal relating to the defects in the indictment had succeeded and the other grounds had not then this should have resulted in an overall reduction to his sentence of one year. The first ground of appeal having failed, however, it cannot be argued that the sentence could otherwise be said to have been manifestly excessive. Indeed, even if it had been successful we would not have interfered with the total sentence of eight years imprisonment which was fully merited by the gravity of the offences committed under the remaining nine counts. Accordingly, we also dismiss the appeal against sentence

```yaml citation: '[2016] EWCA Crim 454' date: '2016-04-29' judges: - LORD JUSTICE DAVIS - MRS JUSTICE ELISABETH LAING ```

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 792 Case No: 200200531 A3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MAIDSTONE CROWN COURT (HIS HONOUR JUDGE SIMPSON) Royal Courts of Justice Strand, London, WC2A 2LL Date: 5 April 2006 Before : LORD JUSTICE RICHARDS MR JUSTICE GRIGSON and THE RECORDER OF LIVERPOOL (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : MOHAMMAD AKHTAR TAHIR Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Kuldip Singh QC (instructed by Bark & Co ) for the Appellant Kennedy Talbot (instructed by The Solicitor to HM Revenue and Customs ) for the Respondent Hearing dates : 14-15 March 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Richards : 1. On 16 February 2000, following a trial at Maidstone Crown Court before His Honour Judge Simpson and a jury, the appellant Mohammed Tahir (“Tahir”) was convicted of conspiracy to contravene section 170(2)(b) of the Customs and Excise Management Act 1979 (count 1 on the indictment). The nature of the allegation was that he had conspired with others fraudulently to evade the duty chargeable on alcohol imported into the United Kingdom from France. On 2 March 2000 he was sentenced to 7 years’ imprisonment and was ordered to pay £350,000 towards the prosecution costs. 2. On 20 December 2001, the judge made a confiscation order against him in the sum of £11,864,322, with 6 months to pay or a sentence of 7 years’ imprisonment in default of payment. The judge also made an order that he pay £50,000 towards the prosecution’s costs of the confiscation proceedings. In addition the judge ruled that the costs order made on 2 March 2000 was a nullity but made a fresh order that Tahir should pay £350,000 towards the prosecution’s costs of the trial. 3. There were several co-defendants: Fida Hussein Rasool pleaded guilty to counts 1 to 4; Rasool’s brother, Ghulan Abbas, was convicted on counts 1, 3 and 4; Edward Yorke was convicted on counts 2 and 3; Brian Patten was convicted on count 2; Peter Thompson was convicted on count 2; whilst Timothy Hooton and Richard Wood were both acquitted. All the counts were related. 4. Tahir now appeals against the confiscation order and the costs orders against him. Leave to appeal on certain grounds was granted by the single judge at an oral hearing on 1 October 2002. The full court granted leave on certain additional grounds at the hearing of a renewed application on 3 February 2005. At that time Mr William Clegg QC appeared pro bono on behalf of Tahir. Before us, however, Tahir was represented by Mr Kuldip Singh QC, who also appeared on his behalf at the confiscation hearing before the judge and who settled the original grounds of appeal. Mr Singh pursued the appeal on all the grounds on which leave had been granted. In addition, he sought to persuade us to grant leave on additional grounds, including two grounds that had been expressly abandoned by Mr Clegg when he appeared on the renewed application before the full court. 5. The Crown was represented before us by Mr Kennedy Talbot. Very sadly, his junior, Mr Martin Lickert, died a few days before the hearing. Out of all the counsel involved in the appeal, Mr Lickert was the only one who had also been at the trial. Legislative framework 6. The applicable statutory regime is that contained in the Criminal Justice Act 1988 , as amended by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995 . All the references we give to the 1988 Act are to the Act as so amended. 7. Section 71 contains general provisions concerning the making of confiscation orders. It provides in subsection (1): “(1) Where an offender is convicted, in any proceedings before the Crown Court …, of an offence of a relevant description, it shall be the duty of the court – (a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or (b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed, to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.” 8. Other subsections deal with the determination of benefit and of the amount in which a confiscation order is to be made. 9. Section 72(5) provides: “(5) Where a court makes a confiscation order against a defendant in any proceedings, it shall be its duty, in respect of any offence of which he is convicted in those proceedings, to take account of the order before – (a) imposing any fine on him, or (b) making any order involving payment by him, other than [a compensation order] … but subject to that shall leave the order out of account in determining the appropriate sentence or manner of dealing with him.” 10. Section 72A deals with the postponement of confiscation proceedings and with the consequences of any such postponement. It provides in material part: “(1) Where a court is acting under section 71 above but considers that it requires further information before – (a) determining whether the defendant has benefited from any relevant criminal conduct; or … (c) determining the amount to be recovered in his case, it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify. (2) More than one postponement may be made under subsection (1) above in relation to the same case. (3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) which – (a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction. (4) [Power to postpone where the defendant appeals against conviction] (5) A postponement or extension under subsection (1) or (4) above may be made – (a) on application by the defendant or the prosecutor; or (b) by the court of its own motion. … (7) Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned. (8) Where the court has so proceeded – (a) subsection (1) of section 71 above shall have effect as if the words from ‘before sentencing’ onwards were omitted … (9) In sentencing, or otherwise dealing with, the defendant in respect of the offence, or any of the offences, concerned at any time during the specified period, the court shall not – (a) impose any fine on him; or (b) make any such order as is mentioned in section 72(5)(b) … above.” Factual background 11. The case involved the evasion of excise duty on a massive scale. Goods, mainly beer and wine, were imported from France for onward sale in the United Kingdom. Count 1 involved a conspiracy between the appellant, Abbas and Rasool during the period 1 January 1997 to 8 May 1998. 12. According to the Crown, Tahir was at the top of the organisation, controlling the French side of the operation. There was a business in Calais known as King Wines (“Kings”) and then, from mid 1997, Moon Cash and Carry (“Moons”). It was alleged that Tahir owned and controlled Kings and Moons, though he kept in the background. Rasool ran the operation in the United Kingdom and worked with Abbas. Yorke ran the Kent end of things, organising the drivers (Patten and Thompson). Goods were collected from Calais and were brought to Dover without payment of duty. They were stored at a warehouse and were then sold and despatched to other cash and carry outlets around the country. Invoices were raised on bogus companies set up by Rasool to give the appearance that the goods had a legitimate origin in the United Kingdom. When the proceeds of sale were received, payments were made to Kings or Moons (as the case may be). 13. On 14 April 1999 Tahir was arrested at his house in Surrey. Over £90,000 in cash was found in carrier bags. Relying on references in Rasool’s cash books (seized from the office of Rasool and Abbas on their arrest) to “T” or “Mr T” as being references to Tahir, and as indicating that large sums of money had been paid to him, the prosecution alleged that the £90,000 was part of the proceeds of the fraud. In a briefcase were found bank statements from Pakistan showing very large credit balances, together with other relevant documentation. This led to the contention that Tahir had disguised control over bank accounts in Pakistan. The proceedings 14. On 2 September 1999, prior to the trial, a restraint order was made and a receiver was appointed in respect of Tahir. Orders were made to preserve assets in the event of conviction and subsequent confiscation proceedings. 15. On 6 September 1999, Rasool pleaded guilty and the trial of the others, including Tahir, began. On 16 February 2000 verdicts were reached in respect of all the defendants except Thompson and Wood. The following day, 17 February, verdicts were reached in respect of the remaining defendants and there were discussions in court about confiscation proceedings and sentencing. It will be necessary to look in some detail at those discussions when considering the grounds of appeal. 16. On 2 March 2000, Tahir and others were sentenced. Again it will be necessary to refer in due course to what was said at that hearing. 17. On 16 June 2000 the confiscation proceedings were listed for mention. The court ordered a section 73 statement to be served on Tahir by 30 June. A statement was in fact served on 28 June. On 30 June 2000 the court heard and rejected submissions as to the validity of the confiscation proceedings. 18. On 28 July 2000 the confiscation proceedings were postponed to 31 January 2001, the judge holding that there were exceptional circumstances to justify the postponement. The hearing was fixed for 8 January 2001, but was subsequently adjourned on a number of occasions at Tahir’s request, for reasons that included late service of a substantial amount of material by Rasool, difficulty in obtaining evidence from Pakistan and the fact that Mr Singh and his junior came into the case at a relatively late stage. 19. The confiscation hearing eventually took place between 19 October and 20 December 2001, when the judge gave his ruling and made the confiscation order. 20. We have referred already to the subsequent application for leave to appeal, including the renewed application before the full court. The decisions in Soneji and Knights 21. Grounds 2-5 all raise issues as to compliance with the procedural requirements for the making of confiscation orders. Before examining the specific issues, it is helpful to refer to the principles laid down by the House of Lords in R v Soneji [2005] UKHL 49 , [2005] 3 WLR 303 and R v Knights [2005] UKHL 50 , [2005] 3 WLR 330 . The decisions in those cases post-dated the grant of leave in the present case and have an important bearing on the issues raised. Both cases were concerned with the 1988 Act as amended and with the consequences of non-compliance with the procedural requirements laid down by that Act for the making of confiscation orders. They were heard consecutively by the same committee. 22. In Soneji the Court of Appeal had held that the failure of the first instance judge to consider or make any finding as to the existence of exceptional circumstances to justify a postponement under section 72A had deprived him of any jurisdiction to make a confiscation order. The House of Lords allowed the Crown’s appeal. The principles laid down are summarised as follows in the headnote at [2005] 3 WLR 303G -304A: “… that the correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision would be invalid; that since section 71(1)of the 1988 Act as amended imposed a duty on the court when an offender had been convicted to consider confiscation proceedings, with the purpose of the sequence of such proceedings as required by section 71(1) and the postponement power under section 72A , which precluded any common law power of adjournment, being to make the sentencing process rather than the confiscation procedure as effective as possible; that the judge’s failure to adhere to the requirements of section 72A(3) had caused no prejudice to the defendants in respect of their sentences and any other prejudice caused by the delay was outweighed by the public interest in not allowing convicted offenders to escape confiscation for bona fide errors in the judicial process; and that, accordingly, any failure would not have been intended by Parliament to invalidate the confiscation proceedings ….” 23. Those principles were applied in Knights , in which it was contended by the appellant that the judge’s initial failure to specify the precise period of the postponement had rendered the proceedings invalid. The House of Lords did not accept that the extent of the judge’s non-compliance with section 72A was as great as contended by the appellant, but held in any event that a failure to specify any return date at all when postponing confiscation proceedings would not invalidate a subsequent confiscation order: “Provided only that in postponing the proceedings the judge had acted in good faith and in the purported exercise of his section 72A power, I cannot think that Parliament would have intended such an error to disable the court from discharging its statutory duty to complete the confiscation proceedings against the offender” (per Lord Brown of Eaton-under-Heywood at para 22). 24. With that introduction we turn to consider the grounds of appeal on which leave has been granted or is now sought in the present case. Ground 2: notice under section 71(1)(a) 25. The issue raised by ground 2 is whether the prosecution gave written notice to the court in accordance with section 71(1)(a) so as to engage the duty of the court to act as set out in section 71 . 26. The prosecution contends that such notice was given in a letter dated 17 February 2000 which was served on Tahir and on the court that day. The letter purports to be from Maureen Dunn, Special Casework Division, HM Customs and Excise, and to be signed on her behalf. It has no named addressee, but reads: “Dear Sir, Re: Mohammed Akhtar Tahir Take notice that we intend to start confiscation proceedings under Section 71(1)(a) Criminal Justice Act 1988 , as amended by the Proceeds of Crime Act 1995 , in relation to the above defendant who was convicted on 16 February 2000 on Count 1. Should it be necessary to apply for an extension of time before the proposed proceedings begin, we will apply to the Crown Court and put you on notice of the same.” 27. The appellant’s primary case is that that letter was not served on the court as required by section 71(1)(a) . Indeed, it is not accepted that the letter was served at the time even on the appellant or his legal representatives (though such service is not required by the statute). It is said that the letter was first provided to the appellant in correspondence after the conclusion of the confiscation proceedings. 28. Unfortunately it has been impossible to locate part of the relevant Crown Court file, so that the resolution of this issue has to depend upon an assessment of other material. 29. In our judgment there is ample evidence that the letter was served on the court at the time. There are two passages in the transcript of 17 February 2000 (pp.27E and 36D-E) where the judge referred to notices having been served. Looking at those passages in context, and especially the second of them, we take the view that they related to Tahir as well as to other defendants and that the judge was referring not just to service on the defendants themselves but to service on the court. He stated specifically at p.36D: “I think I saw, amongst some documents this morning, a notification in relation to a number of defendants as to possible confiscation proceedings”. 30. At the sentencing hearing on 2 March 2000, Mr Lickert, junior counsel for the prosecution, told the court: “Everyone who was convicted on 16th and 17th February [was] served with a notice” (p.17). Counsel for the defendants, including Tahir, were in court but no-one questioned the statement. If there had been any doubt about whether the court had also been served with such notices, counsel and the judge himself would have been expected to raise the point. 31. So, too, at subsequent hearings and in the written submissions prepared for those hearings there are references to service of the notices. In particular, at the hearing on 30 June 2000, the judge rejected an argument advanced primarily on behalf of Rasool and Abbas that proceedings were not properly instituted by service of notice in the form of the letter of 17 February. The whole argument was predicated on an acceptance that the letters had been served: the nature of the submissions was that letters in that form did not constitute valid notices. Counsel for Abbas said that at the end of the trial: “letters, the only variation being the name of the person re whoever, were handed out … ‘like confetti’ that day. They were handed out to every defendant who was convicted …. [T]hey were literally being constructed outside court” (pp.68D-69A). Far from taking issue with any of this, counsel for Tahir (who had also been his junior counsel at the trial) adopted the submissions of counsel for Abbas (p.77A). 32. Mr Singh was driven to submit that Tahir and his representatives were unaware of the true position and that they and the court itself were misled by false claims by the prosecution that written notice had been served on the court at the appropriate time, which resulted in the court ruling on 30 June 2000 that the statutory provisions concerning such a notice had been complied with. In our view there is no substance whatsoever in that submission. The plain reality of the matter is that everybody proceeded as they did because they knew that the letter had been served. 33. A note drafted by Mr Lickert a few days before his untimely death provides clear-cut confirmation of the conclusion that we have derived from the contemporaneous material. Mr Lickert’s note states (paras 7-8): “After the verdicts were announced on 16 th February 2000, I spoke on 17 th February with Richard Napper, one of the financial officers present at court. I asked him if there was any pro forma section 71 notice that he knew of. He did not [know] of such a document, and we decided to ring Maureen Dunn at HMC&E solicitors office to find out if there was any specific wording that needed to be used. She was out of the office that day. Mr Napper then spoke to a solicitor called Colin Jones from the Asset Forfeiture Unit. He did not know of any pro forma. Accordingly, Mr Napper and I sat down in the room next to Court 6 and using Archbold, drafted out the notices as best we could, using one of the laptop computers and the printer. Notices were drafted in respect of Tahir, Abbas and Yorke, and served on the representatives of Tahir, Abbas and Yorke that day. Copies were also served on the court. To the best of my recollection, the clerk of the court that day was Mrs Davies, although I cannot be sure it was her. What I can be sure of is that Mr Napper and I drafted the section 71 notices and that I personally served them.” 34. Mr Lickert’s note was not written as a witness statement and was not formally admitted into evidence, but Mr Singh very properly accepted Mr Lickert’s bona fides and did not dispute that the note represented Mr Lickert’s honest recollection of what happened. He submitted, however, that it was a mistaken recollection. Taking us through passages in various written and oral submissions by Mr Lickert in the intervening years, he suggested that they were inconsistent with, or did not support, the contents of Mr Lickert’s note and that Mr Lickert must have failed to refresh his memory by reference to such material and had in consequence misremembered the true position. We have no hesitation in rejecting that line of argument. Mr Lickert’s note is clear and precise, both in its description of the way in which the letters were drafted and in its assertion that he personally served them on the defendants’ representatives and on the court. It accords with the contemporaneous material and, as we have said, confirms the position as revealed by that material. It is also consistent with the explanation given by HM Customs and Excise to Tahir himself in a letter dated 2 February 2005 (though it is right to note that Tahir denies ever having received that letter prior to the production of a copy at the hearing before us). 35. Mr Singh had a subsidiary submission that even if the letter of 17 February 2000 was served on the court, it did not amount to a written notice within section 71(1)(a) because it was no more than a statement of intention to start proceedings and it did not state, in the language of the statutory provision, that the prosecution considered that it would be appropriate for the court to proceed under section 71 . He conceded, however, on the basis of the principles in Soneji and Knights and the decision of the Court of Appeal in Sekhon [2003] 1 WLR 1655 that this defect would not in itself invalidate the confiscation order. That concession was plainly correct, but it is unnecessary to rely on the point since we are satisfied in any event that the letter amounted to a sufficient notice within section 71(1)(a) . 36. Even if we had concluded that the letter of 17 February 2000 had not been served on the court as required by section 71(1)(a) , that would not have been fatal to the validity of the confiscation order. It seems to us, applying the principles in Soneji , that Parliament cannot have intended such a defect to render the confiscation order invalid in the circumstances of this case. A similar approach was applied in Rogers [2005] EWCA 3659, at paras 20-21. 37. A further line of argument that Mr Singh sought to pursue was that the conduct of the Crown in relation to the notice amounted to an abuse of process. This contention was not included in the grounds of appeal, and at the hearing we refused leave for the grounds to be amended for the point to be pursued. Our reasons for refusing leave are briefly as follows. 38. The contention had two aspects to it. First, it was alleged that the prosecution falsely claimed in the proceedings below that written notice had been served at the appropriate time on the court, and thereby misled the court, Tahir and his legal advisers. This point falls away in the light of our finding that written notice was duly served, but it was unarguable in any event. There is nothing to support the view that what occurred was done otherwise than in good faith or that it caused any prejudice to Tahir. 39. Secondly, it was said to have been an abuse to draft the letter in the name of Maureen Dunn when, as shown by Mr Lickert’s note, she was away at the time and had no knowledge of it. On a point of detail, the letter of 2 February 2005 from HM Customs and Excise to Tahir states that Maureen Dunn had been consulted about the notice prior to its issue; and nothing in Mr Lickert’s note is inconsistent with that statement, albeit that Mrs Dunn was away on the day when the notice was actually drafted. More generally, it is clear from Mr Lickert’s note and from the wider context that the notice was drafted and served with the knowledge and agreement of the Customs officers in the case. There is nothing to support the contention that it was served without authority. Ground 3: judicial decision under section 71(1)(b) 40. Ground 3 would have been relevant only if we had found that the prosecution failed to serve a written notice on the court under section 71(1)(a) : it raised the question whether the judge himself reached any decision under section 71(1)(b) that it was appropriate to proceed under the section, thereby providing an alternative trigger to the duty of the court to act in accordance with that section. In the circumstances we need say no more about it. Ground 4: postponement under section 72A 41. This is the ground that Mr Singh put at the forefront of his case. The issue is whether the court lawfully exercised the power under section 72A to postpone the confiscation proceedings where the court considers that further information is required before making confiscation determinations; and, if not, whether that invalidated the confiscation proceedings and in particular the confiscation order eventually made. 42. Mr Singh’s submissions may be summarised as follows: i) The judge failed to comply with the provisions of section 72A(1) and (7) by failing before sentence to make an order postponing the relevant determinations and confiscation proceedings until after sentence. The effect of an unbroken line of authority from R v Kelly [2000] 2 Cr App R (S) 129 to R v Sekhon [2003] 1 WLR 1655 , where the earlier cases were considered in detail, is that there must be a judicial decision , “however generally expressed” ( Sekhon , para 56), to postpone proceedings; such a decision must be taken before the court proceeds to sentence or otherwise deal with the defendant in respect of the offence concerned; and in the absence of a decision to postpone until after sentence, the court has no jurisdiction to make a confiscation order thereafter. ii) On this point Soneji did not overrule or cast any doubt on Sekhon or the line of authorities leading to Sekhon . The House of Lords in Soneji was not dealing with a failure to make a decision to postpone until after sentence, and the principles laid down do not govern the situation. Similarly, Knights concerned a failure to specify the period of postponement and a judge’s purported exercise of his section 72A power, rather than the absence of a decision to postpone. iii) In any event Parliament must have intended that a failure to make a decision to postpone until after sentence would invalidate any subsequent confiscation order. It is a fundamental principle of sentencing that a court should not increase a sentence once imposed. In enacting the power to postpone under section 72A as an exception to that fundamental principle, Parliament must be taken to have required compliance with the statutory provisions giving the court such a power. In support of that submission Mr Singh also referred to the confiscation regime introduced by the Proceeds of Crime Act 2002 , in particular sections 14(11)-(12) and 15. iv) On the facts of this case, at no time before sentence was passed on 2 March 2003 did the prosecution make an application to postpone or the judge make a decision to postpone the confiscation proceedings in respect of Tahir or any of the defendants other than Rasool. On 2 March the prosecution may have misled themselves into thinking that the judge had made such a decision, and the judge was innocently misled by that erroneous belief or his own erroneous belief that such a decision had been made. This, in turn, misled Tahir’s counsel into the erroneous belief that a decision to postpone had been made, and to address the court in mitigation on that erroneous basis. Neither Tahir nor his counsel had been in court at the material time on 17 February 2000, with the consequence that they were unable to gainsay what was being said by the prosecution or the judge about a previous decision on postponement. v) A belief or assumption on the part of counsel or even the judge cannot affect the legal position. A postponement under section 72A(1) “is constituted, and only constituted, by a judicial decision [and] unless there is something wholly exceptional that must be taken and done in open court and reasons there given for it” ( Kelly , p.137). A positive judicial decision is needed. There was no such decision here. vi) Accordingly the court had no jurisdiction to make the confiscation order. 43. Mr Talbot, for the Crown, sought to meet that line of argument by the following submissions: i) The clear position on the facts of this case is that the judge made manifest his intention to sentence first and to deal later with confiscation, and he did so in purported exercise of his powers under section 72A . Further, this was done with the acquiescence of counsel, including counsel for Tahir, who at no time suggested any other course. ii) What the court must do in order to postpone its determination in compliance with section 72A is to make manifest its intention to sentence first and to deal later with confiscation. Support for this approach is to be found in R v Haisman [2004] 1 Cr App R (S) 383, which concerned an appeal based on an alleged failure by the judge to take a judicial decision to postpone confiscation proceedings. Reference was made at para 24 to R v McCready [2003] EWCA Crim 2002 , in which it had been said that the decision to postpone must be made before sentence is passed and must be made “obvious” or “manifest” but does not have to be announced or articulated before sentence is passed. The court in Haisman accepted that approach and concluded on the facts that the judge “had manifestly reached a decision, well understood and concurred in by counsel before sentencing took place, that the determination in the confiscation proceedings should be postponed to be dealt with after sentence” (para 29). Accordingly the court dismissed the appeal. iii) In any event the case falls within the statement of principle in Soneji para 80, echoed in Knights para 22, that “[p]rovided always that the court … was acting in good faith in the purported exercise of its s.72A power to postpone the confiscation proceedings its subsequent determinations will not be invalidated despite its having proceeded first to sentence and only later to the making of a confiscation order”. Alternatively the case falls within the scope of the wider reasoning in Soneji : if what happened in the circumstances of this case did not amount to compliance with section 72A , Parliament cannot have intended such non-compliance to invalidate the confiscation order. 44. We were taken at length by counsel through the transcripts of the relevant hearings. It is not necessary to repeat the exercise at the same length in this judgment. It suffices to refer to a few passages and to indicate the conclusions we have reached. 45. The issue of postponement was canvassed on 17 February 2000. The early part of the discussion on that day was concerned specifically with Rasool, in relation to whom the judge made an order postponing the confiscation proceedings to 30 June 2000. Even during that discussion, however, it was tolerably clear that the judge had in contemplation a postponement in respect of Abbas and Tahir as well; and it is a fair inference that, if Tahir’s counsel were not in court at this time (one cannot be certain from the transcript), they were consulted about, and were therefore aware of, the position when the court adjourned to allow prosecuting counsel to take instructions about dates. 46. It is not in dispute that Tahir and his counsel were in court a little later on the same day, when further discussion took place about the date for sentencing. Having indicated that he proposed to fix sentence for 2 March 2000, with 3 March available if necessary, the judge said to prosecuting counsel: “[T]he question of any confiscation matters has, in a sense, already been dealt with insofar as it can be. Notice of intention has been served. I do not think that there is anything probably that can usefully be done with regard to that on either the 2 nd or 3 rd as it will be too soon” (p.27). 47. In our view that observation was intended to apply to Tahir as much as to any other defendant (which chimes with our conclusion, set out above, that written notice had already been served in relation to Tahir). Thus the judge was making manifest his intention to sentence Tahir first and to deal with confiscation in respect of Tahir at a later date, and that is how it must have been understood by all concerned. The later exchanges on the same day (pp.36-37) about service of section 73 statements by the prosecution underlined the point: again, the judge was plainly intending to adopt a timetable for the confiscation proceedings that followed on from sentencing on 2 March. 48. What happened on 2 March provides strong support for the view that the judge had already made a decision to postpone the confiscation proceedings. During the opening of the facts, which was necessary because Rasool had pleaded guilty, prosecuting counsel (at pp.16-17) stated that a confiscation hearing had been fixed for 30 June, all those convicted had been served with a notice and investigations were continuing. The judge (at p.20) subsequently confirmed the 30 June date. Nobody demurred. Then, at the start of counsel’s mitigation on behalf of Tahir, the judge referred to section 72A , including the provision in subsection (7) that a court may proceed to sentence where it exercises the power to postpone under subsection (1). Counsel observed that the law was well settled, and continued (at p.3): “I don’t think there is any argument on it. It has been dealt with previously between your Honour and counsel a fortnight ago, that sentence would be proceeded with today, confiscation at a date to be fixed”. 49. Counsel proceeded to mitigate on the basis that Tahir would be subject to confiscation proceedings in the future. It is to be noted that this was the same counsel as had represented Tahir on 17 February. In our judgment, what she said was the clearest acknowledgement of the fact that a decision to postpone had been made on 17 February. The contention that she was in some way misled by prosecuting counsel or the judge into an erroneous belief that a decision had been made is unsustainable. 50. In the course of passing sentence the judge once more made the position clear. In his remarks to Tahir, and before going on to impose a custodial sentence, he said (at pp.5-6): “Were it not for the provisions of section 72A(9)(a) of the Criminal Justice Act 1988 , which restricts the power of the Court to impose a fine whilst confiscation proceedings are pending, I should today impose a substantial fine upon you as well as a custodial sentence. As it is, that power is postponed to be considered and if appropriate exercised after the conclusion of the confiscation proceedings …”. 51. We do not need to refer specifically to the transcripts of the later hearings, but they are consistent with the picture that emerges from the hearings to which we have referred. 52. In the light of all that material we are satisfied that the judge did reach a decision, before sentencing Tahir, to postpone the confiscation proceedings until a later date. It is clear from cases such as Haisman and to Sekhon that the decision does not have to be in any particular form and can be expressed in general terms. Where, as here, the judge made manifest, and it was well understood and concurred in by counsel, that confiscation was to be dealt with after sentencing, we do not think that the existence of a decision to postpone can be in doubt. That conclusion is not affected by the fact that the decision was not recorded in the Crown Court file. 53. Moreover, since it is clear that the judge, acting in good faith, was purporting to exercise his powers under section 72A in proceeding to sentence Tahir before dealing with confiscation, it seems to us that, on the basis of Soneji and Knights , the confiscation order would not be invalidated even if what occurred prior to sentencing did not amount strictly to a decision to postpone in compliance with section 72A . We reject Mr Singh’s contention that Sekhon and the line of authorities leading to it are unaffected by Soneji and Knights . Although Soneji concerned a specific procedural defect, the reasoning of the House of Lords went much wider and their Lordships plainly intended to lay down principles of general application to confiscation proceedings. Those principles were then applied in Knights in relation to a different procedural defect. The same principles are applicable here. We should make clear that in reaching that conclusion we have taken into account, in addition to the skeleton arguments and the submissions at the hearing, written submissions filed by Mr Singh by way of supplementary reply after the hearing. 54. We stress that on no view is this a case of complete failure to address the issue of postponement. On the contrary, it was addressed, and even if we had found that it was not addressed in strict compliance with section 72A the fact is that everybody concerned proceeded on the clear understanding that confiscation was to be postponed under that section, everything was done in good faith, and there was in our view no resulting prejudice to Tahir. In our judgment there is no reason why Parliament should have intended the confiscation order to be invalidated in circumstances such as these. Ground 5: exceptional circumstances 55. On 28 July 2000 the prosecution applied under section 72A for the confiscation proceedings in respect of Tahir to be further postponed to a date beyond 16 August 2000 and therefore to a date more than six months after his conviction. The application was opposed. The judge ruled that there were exceptional circumstances within section 72A(3) which justified the further postponement sought. The case for the appellant is that the judge was wrong so to rule. It is accepted that that would not of itself automatically deprive the court of jurisdiction to make a confiscation order (see Soneji ), but the point is relied on in respect of a wider argument as to abuse of process to which we refer later in this judgment. 56. In his ruling the J said (at p.36): “I take the view that this is a case of considerable complexity. There is a very considerable amount of duty – some £20 million in all – it is said in issue here; not that that is the figure likely to be the subject of confiscation as such on the information before me …. In the circumstances, I am fully satisfied that there are exceptional circumstances here which fully justify the Court in postponing the making of the determinations ….” 57. Mr Singh submitted that the one factor relied on by the judge in that passage had already been considered in the trial, where the relevant documentation had been put in evidence. He submitted more generally that a finding of exceptional circumstances could not be justified in circumstances where the prosecuting authorities had been investigating the case since at least 1997 or early 1998, there had been a very lengthy trial, and the relevant postponement would mean confiscation proceedings taking place some 3-4 years after the offence and about a year after conviction. 58. In our judgment there is no substance in those submissions. The statutory provision as to “exceptional circumstances” should not be construed very strictly (see Soneji , paras 28 and 33). Nor should the judge’s ruling be interpreted too strictly: although he picked out one particular factor, he was in our view looking at the circumstances of the case as a whole in reaching his decision that exceptional circumstances existed. Having regard to the nature and complexity of the case, it was open to him to reach the conclusion he did. Subsequent events proved the wisdom of the decision, in that the appellant himself subsequently made repeated applications for more time to prepare for the hearing. Ground 6: sufficiency of evidence 59. The contention in ground 6 is that there were various matters in dispute in the confiscation proceedings that had not been the subject of evidence at the trial or of any finding of fact at trial and were not decided by the jury’s verdict; yet the prosecution called no evidence in the confiscation proceedings to prove its case on those matters. It is therefore submitted that the judge was wrong to rely on such matters in his ruling on confiscation. Matters in dispute are said to have included the amount of Tahir’s benefit, the amount of his assets, the ownership and value of assets in Pakistan, and the ownership of assets in England. 60. The single judge refused leave to appeal on this ground. At the renewed application for leave before the full court, leading counsel then appearing for Tahir expressly abandoned the point, on the basis that in the light of recent authority the proposition advanced in the ground was unarguable. Mr Singh nonetheless sought to revive the ground before us. We refused leave for it to be argued. Our reasons for doing so are briefly as follows. 61. First, it would require highly exceptional circumstances to persuade the court hearing a substantive appeal to entertain a ground of appeal that had previously been abandoned on a renewed leave application to the full court. The circumstances of this case get nowhere near that threshold. At the renewal stage a considered decision was taken by counsel to abandon the ground. It was a decision no doubt based on R v Silcock and Levin [2004] 2 Cr App R (S) 323, where it was held that the ordinary rules of criminal evidence do not apply to a confiscation hearing and that the judge is entitled to rely on documentary material placed before him. No possible justification has been advanced for allowing a departure from that considered decision. Certainly none is provided by the fact that there has been a change of counsel and that Mr Singh, who now represents Tahir, would not himself have abandoned the ground. 62. In any event we are wholly unpersuaded of the existence of any arguable case that the judge’s findings were not open to him on the material to which he was entitled to have regard. Mr Singh’s submissions were advanced at a high level of generality and did not begin to show the lack of sufficient evidential support for any individual finding made by the judge. Ground 11: cash paid to Akhtar 63. One aspect of the prosecution case, based on entries in Rasool’s cash books which were seized on his arrest and were said to be a contemporaneous record of payments made by him, was that Rasool made cash payments to Tahir in a total sum of £590,000. The judge took that figure into account when computing the amount of Tahir’s benefit. The contention advanced in ground 11 is that Rasool’s cash books show that three of the sums, amounting in total to £130,000, were in fact paid to a man called Akhtar and not to Tahir. It is said that, since the prosecution case was based in this respect only on the cash books, the sums in question could not be treated as monies obtained by Tahir, and the judge therefore erred in taking them into account as he did. This component of Tahir’s benefit figure should therefore be reduced by £130,000. 64. The prosecution response is that there was overwhelming evidence that Akhtar was merely a nominee of Tahir. A brief but convincing survey of that evidence was provided in Mr Talbot’s skeleton argument. We do not need to dwell on it, however, since Mr Singh did not take issue with the proposition that Akhtar was shown to be a nominee. He put his case on the basis that section 71(4) provides that “a person benefits from an offence if he obtains property as a result of or in connection with its commission” (emphasis added), and he submitted that Tahir did not himself “obtain” the monies paid to Akhtar as his nominee. 65. In our judgment that submission is plainly wrong. Section 71(4) is wide enough to cover property obtained by a person through an agent or nominee. To hold otherwise, as Mr Talbot observed, would drive a coach and horses through the legislation. A broad approach to the meaning of “obtain” in the context of confiscation proceedings is also supported by Jennings v Crown Prosecution Service [2005] EWCA Civ 746 . Mr Singh himself was driven to concede that a person “obtains” money when that money is paid into his bank account; but that concession is inconsistent with, and illustrates the error in, his main submission. 66. We therefore conclude that the judge was entitled to treat the £130,000 as money obtained by Tahir. Ground 12: assets in Pakistan 67. Ground 12 as set out in the written grounds raises issues concerning very large sums of money, amounting in total to some £13.3 million, which were found in various bank accounts in Pakistan and were held by the judge to form part of Tahir’s realisable assets. It is contended that the judge’s approach to the relevant evidence, and his findings and decisions in relation to it, were wrong, flawed, illogical, unfair and irrational. 68. The case so advanced, however, is not one in respect of which Tahir has leave to appeal. The single judge refused leave on the entirety of ground 12. The full court, on the renewed application, granted leave on only two limited points and made clear that leave was not granted in respect of any of the other points in ground 12. Counsel then appearing for Tahir had effectively abandoned those other points. Yet Mr Singh sought to revive them before us, asking us to grant leave notwithstanding what happened previously on the renewed application. 69. We have already made clear, in the context of ground 6, our view that it would require highly exceptional circumstances to persuade the court hearing a substantive appeal to entertain a ground of appeal that had previously been abandoned on a renewed leave application. In relation to ground 12, as in relation to ground 6, we are satisfied that the circumstances get nowhere near justifying such a course and that the further application for leave must be refused. 70. Mr Singh took us through various documents in order to indicate the nature of the evidence that was before the judge in the confiscation proceedings in relation to the assets in Pakistan. Such evidence went beyond the evidence at the trial. There were two broad aspects to it. 71. The first concerned quantification of the assets in Pakistan. Mr Sim, a forensic accountant instructed by the defence, produced a number of reports which had the effect of causing the prosecution to revise their calculations downwards by a very substantial amount; but it was submitted that substantial further reductions ought to be made. 72. In relation to this aspect of the matter, the judge said in his ruling of 20 December 2001 (pp.43-44): “In my view, some of the conclusions reached by Mr Sim, but not all of them, are based upon various hypotheses of a somewhat speculative nature whereby he managed to conclude that there might be a basis, or a series of bases, for deciding that certain figures had been double counted by Mr Napper and if one were prepared to accept those hypotheses, then the prosecution figure in regard to the Pakistan assets of Mr Tahir should be reduced to the sum of £9,903,666. I, however, am not so prepared and accordingly such a reduction will not be made beyond what the prosecution [conceded] and already incorporated in their closing submissions.” 73. Mr Singh criticised that passage on the basis that the judge did not say that he had revisited the prosecution case and had reached specific conclusions in relation to the matters in issue. The judge ought to have found that Mr Sim’s analysis raised a sufficient doubt to warrant the further deduction contended for. 74. We are not persuaded that there was any error of approach by the judge or that he erred in declining to make the additional adjustments put forward by Mr Sims. The burden of proof lay on Tahir (see R v Barwick [2001] 1 Cr App R (S) 445). The judge was entitled to find that he had failed to discharge that burden in relation to the sums in issue. We deal later with one specific issue of alleged double counting that formed the subject of separate argument. 75. The second, and more important, aspect of the evidence concerned beneficial ownership of the assets in Pakistan. The defence argued that the maximum amount derived from the fraud and which could have been exported to Pakistan was £1.5 million, and that as a matter of common sense it was therefore highly unlikely that Tahir would have earned the sum of over £13 million that the prosecution alleged to be contained in the Pakistan bank accounts. In addition, the defence provided documentary evidence in support of the contention that the monies in the bank accounts were owned by persons other than Tahir. Many of the accounts were said to be owned by a Mr Mohammad Azhar, who provided a supporting witness statement. There was also a witness statement from a Mr Farrukh Waheed explaining away Tahir’s apparent involvement with certain bank accounts and financial transactions. Neither Mr Azhar nor Mr Waheed was willing to leave Pakistan to give evidence. Both relied on the security situation and other reasons for an unwillingness to travel. 76. In his ruling on 20 December 2001 the judge said this (at pp.43-44): “Nothing that I have read or heard during these confiscation proceedings has served to alter my original view of the matter, notwithstanding the further evidence called in these proceedings, which was not adduced during the trial, in an attempt to alter the position on behalf of Tahir. That further evidence includes statements taken in Pakistan, one of which was not in a previous form admitted into the trial for good and valid reasons in my judgment – that is one namely by Azhar – but which have been admitted in these proceedings due to the very different circumstances now prevailing in Pakistan. In my judgment, they represent another aspect of attempts to provide an explanation for Tahir’s possession of documents which I overall reject as palpably untrue.” 77. Mr Singh advanced several specific criticisms of that passage. He submitted that the judge misunderstood the nature of Azhar’s witness statement, which was different from the statement he had refused to admit at the trial. The judge was also wrong to characterise the evidence as another attempt to explain Tahir’s possession of the documents found in his briefcase: the evidence went to the ownership of the assets, not to the reasons for Tahir’s possession of the documents. The judge simply failed to get to grips with the additional evidence. He adopted a mistaken approach which resulted in unfairness to Tahir. 78. On this issue, too, it should be recalled that the burden of proof lay on Tahir. He had been found in possession of a briefcase containing documents relating to the accounts in Pakistan, including statements generated by a cash point machine while he had been in Pakistan a few months previously. Other documents found included an identity card in the name of Azhar with Tahir’s photograph on it, and a power of attorney in the name of Akhtar. It was for Tahir to show that, although such documents had been found in his possession, the accounts were not his. In his evidence at the trial, Tahir had sought to explain those documents in two ways – what the judge referred to as “the Waheed explanation” and “the Azhar explanation”. The judge went through the explanations in an earlier part of his ruling (pp.20-28). We do not accept that they were of no relevance or only passing relevance to the issue of ownership of the assets in Pakistan. Tahir, of course, was found at the trial to be an untruthful witness. Although his evidence was not relied on by the defence at the confiscation hearing, the rejection of his evidence at trial formed an important part of the background against which the issue of ownership of the assets in Pakistan fell to be assessed. 79. Further, at the confiscation hearing the judge heard and rejected evidence from Akhtar, which he also dealt with at some length in his ruling (pp.30-39). 80. In the light of those considerations, it seems to us that the judge was entitled to adopt the robust approach he did towards the additional documentary evidence and untested witness statements of Azhar and Waheed. We do not accept that he misunderstood the nature of Azhar’s witness statement. His description of the evidence as another attempt to provide an explanation for Tahir’s possession of the documents was an understandable shorthand, given that the issue of ownership of the assets in Pakistan had arisen out of the discovery of the documents in Tahir’s possession. In substance the question being addressed was whether the assets in Pakistan had been shown not to belong to Tahir. The judge was entitled to answer that question in the negative. 81. Accordingly, the general points canvassed under ground 12 would not in our view justify the grant of leave even if the matter were before the court for the first time. But in any event there is nothing that could remotely justify the court entertaining points previously abandoned on the renewed leave application. 82. There remain the two points under ground 12 on which leave was granted by the full court at the hearing of the renewed application. 83. The first point arose in this way. It was said that the monies in Pakistan were subject to exchange control legislation introduced in 1998. That legislation required all monies in foreign currency accounts in Pakistan to be converted into rupees and prevented them from being transferred abroad. The monies alleged to belong to Tahir were caught by that legislation and had been so converted. These matters were relied on in ground 13 (on which the single judge granted leave) in support of the contention that the judge was wrong to give Tahir only six months to pay the sums due under the confiscation order and that a more realistic and reasonable period would have been two years. It was said to be extremely doubtful that the receiver would be able to conclude attempts to recover that money within six months. The submission made to the full court, and which the full court considered to be arguable, was that if the exchange control legislation in Pakistan prevented the monies being used by way of repatriation to meet any confiscation order, then this went to the amount of the confiscation order itself and not just to the time allowed for payment. 84. At the hearing before us, however, Mr Singh did not pursue the exchange control point. He told us that this was because there had been a relevant change in the legislation. We therefore need say no more about the point, save to note that Mr Singh reserved his position on it in relation to any other proceedings. 85. The other point under ground 12 for which leave to appeal has been granted is a discrete point on double counting. We can deal with it shortly. In essence, the documents included inconsistent bank statements, dated the same day but just under an hour apart. One suggested that all the monies in a particular bank account had been transferred to another account, the other suggested that a large sum (£951,282) remained in the first account after the transfer. 86. Mr Singh submitted that in those circumstances Tahir should be given the benefit of the doubt and that the judge was guilty of double-counting by including the sum of £951,282 in the computation of Tahir’s realisable property. We reject that submission. A possible inference to be drawn from the statements was that the sum of £951,282 remained in the first account after the earlier withdrawal; and if it remained in the account, it was properly included in the calculation. The burden lay on Tahir to show that the inference should not be drawn. We are told that in cross-examination Mr Sim agreed that he had never seen parallel statements such as these, that it called for an explanation by the bank, and that he not seen any document asking for such an explanation. The judge was entitled to conclude that Tahir had failed to discharge the burden upon him, whether by adducing additional evidence from the bank or otherwise. Ground 13: time to pay 87. As already mentioned, the issue raised by ground 13 was whether the six months that the judge allowed for payment of the sums due under the confiscation order was a sufficient period. That issue has fallen away, however, since it is now over four years since the confiscation order was made. We deal below with the time to be allowed for payment in the light of this judgment. Ground 14: costs order of £350,000 88. We have also mentioned already that at the sentencing hearing on 2 March 2000 the judge ordered Tahir to pay £350,000 towards the prosecution’s costs of the trial. It was subsequently common ground before the judge that he did not have the power to make such an order for costs at that time, since the combined effect of sections 72A(9) and 72(5) is that the court “shall not” make a financial order of that kind during the period of postponement of confiscation proceedings: the confiscation order must come first, and the court must take account of it when imposing fines or making other financial orders. 89. On 20 December 2001, at the end of the confiscation proceedings, the judge was alerted to this, accepted that he had had no power to make the previous order at that time, treated the previous order as a nullity and purported to make a fresh order in the same sum in respect of the prosecution costs of the trial. The case for Tahir is that the judge had no power to make the fresh order. 90. A similar point arose in relation to Abbas. The judge made a costs order against him on 2 March 2000 and then purported to substitute a fresh order against him in the same amount at the end of the confiscation proceedings. On an appeal by Abbas against sentence, the Court of Appeal held that the judge “had no jurisdiction” to make the costs order when he did, and further that the judge had not been entitled in the circumstances of the case to substitute a fresh costs order at the conclusion of the confiscation proceedings: see [2002] EWCA Crim 227 , at paras 30-32. Tahir seeks a like result in the present case. 91. At the hearing before us, Mr Singh stated that the subject of the appeal was the order made on 20 December 2001 rather than the original order made on 2 March 2000 (which, as he said, the judge had declared to be a nullity). The difficulty about that approach is that it cannot logically assist Tahir. If the judge was entitled to treat the earlier order as a nullity, then there was no existing order to stand in the way of his making the order he did on 20 December 2001. If, on the other hand, he had no power to treat the earlier order as nullity, that order will remain effective, in the absence of an appeal against it, even if the later order is quashed. Thus an appeal against the order of 20 December 2001 alone can get Tahir nowhere. 92. We think it unfair, however, to proceed on that narrow basis. We note that the grounds of appeal, for which leave was granted, do seek to quash the order of 2 March 2000 as well as the order of 20 December 2001. The appeal must be treated as encompassing both orders. 93. The problem raised by the duality of orders admits of no ready solution, even though it can fairly be said that no prejudice will be suffered by Tahir if one or other of the orders is allowed to stand. 94. It is arguable, following Soneji , that a breach of section 72A(9) does not deprive the court of jurisdiction to make a costs order and does not therefore automatically invalidate any order so made. On that basis it would be open to this court to take a different approach from that taken by the Court of Appeal in Abbas , a decision which pre-dated Soneji . Since, however, we are dealing with another defendant in the same confiscation proceedings, we would be reluctant to adopt so different an approach in the present case. 95. Similarly, it may be argued that the existence of the earlier order, made in breach of section 72A(9) , did not deprive the court of jurisdiction to make a further order, albeit that only one of the two orders could eventually stand; or, as submitted by Mr Talbot, that the Court of Appeal would have power under section 11(3) of the Criminal Appeal Act 1968 to make such an order in place of that made by the judge below. Neither of these possibilities appears to have been raised with the Court of Appeal in Abbas . Again, however, we are reluctant to go down either of these routes when dealing with another defendant in the same confiscation proceedings. 96. The conclusion we have reached is that we should follow the approach of the Court of Appeal in Abbas and quash both costs orders made in respect of the trial, i.e. the order of 2 March 2000 and the order of 20 December 2001, each in the sum of £350,000. That results in parity of treatment as between Abbas and Tahir. To that extent the appeal succeeds. Ground 15: the costs order of £50,000 97. This ground of appeal relates to the costs order of £50,000 made in respect of the confiscation proceedings. It is not suggested that there was anything wrong with the order at the time. Whether it should stand depends on the outcome of the appeal against the confiscation order. Further submissions: abuse of process 98. At the end of his submissions Mr Singh raised a miscellany of points under the heading of abuse of process and injustice. These matters were raised independently of any specific ground of appeal and under the general rubric of the general duty of the court, when dealing with confiscation proceedings, to avoid any serious risk of injustice to a defendant. Reference was made to R v Benjafield [2003] 1 AC 1099 and to what was said in Soneji about the powers of the court to prevent an abuse of process. 99. For reasons that will be apparent from this judgment, we do not accept that the prosecution or the court below acted in any way unfairly or in abuse of process. We are entirely satisfied that Tahir received a fair hearing. 100. A further contention advanced in the written submissions, though not elaborated orally, was that the lapse of time between conviction and the determination of this appeal had resulted in a breach of Tahir’s right under article 6(1) of the European Convention on Human Rights to a hearing within a reasonable time. We do not accept that any sensible complaint can be made about the delay between conviction and the confiscation hearing, since much of the delay was the result of adjournment applications by the defence. We have not investigated the history of the appeal in sufficient depth to determine where responsibility lay for the delay in achieving a final resolution of the appeal. But we are satisfied in any event that the delay has caused Tahir no prejudice since, as explained below, we propose to allow him further time to pay the sums due under the confiscation order, which has the additional consequence that no liability for interest will have accrued in the intervening period. Another way of viewing the same point is that, even if there were a breach of article 6(1), the further time allowed for payment would provide appropriate redress. Conclusions 101. For the reasons given, the appeal against the confiscation order is dismissed. We propose to allow a period of 28 days from the date of the order of this court for Tahir to pay the sums due under the confiscation order. We have taken into account Mr Talbot’s observations concerning the effect this will have on interest in respect of sums due under the confiscation order and on the timing of any liability to serve a sentence in default of payment; but since leave to appeal was granted (in part by the single judge and in part by the full court), and having regard to the length of time it has taken to resolve the appeal, we think it right to allow this short further period. We do not consider that any longer period is appropriate, despite Mr Singh’s submissions about the difficulties faced by the receiver in repatriating sums from Pakistan. 102. The two orders in the sum of £350,000 in respect of the costs of the trial are quashed. 103. We see no reason to interfere with the order in the sum of £50,000 in respect of the costs of the confiscation proceedings. 104. We will receive written submissions in relation to the costs of the appeal and any other consequential matters.

```yaml citation: '[2006] EWCA Crim 792' date: '2006-04-05' judges: - LORD JUSTICE RICHARDS ```

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: 201500434/C5-201500435/C5 Neutral Citation Number: [2015] EWCA Crim 952 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 7th May 2015 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE HICKINBOTTOM MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - - - - - - R E G I N A v PAUL GOWANS BARRY KENNETH HILLMAN REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995 - - - - - - - - - - - - - - - - - - - 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 Russell-Flint QC appeared on behalf of the Appellant Mr S Denison QC appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 24th August 2001 in the Central Criminal Court before His Honour Judge Stephens QC and a jury, these appellants were convicted by majority verdict of murder. Both were sentenced to life imprisonment. In relation to Paul Robert Gowans, now aged 42, the period of 13 years was specified pursuant to the provisions of what later became section 269(2) of the Criminal Justice Act 2003. In relation to Barry Kenneth Hillman, now aged 35, the period of 11 years was specified. 2. On 10th December 2003 the Full Court (Kay LJ, Douglas Brown J and Sir Michael Wright) dismissed the appellants’ appeals against conviction. These convictions have now been referred to this court by the Criminal Cases Review Commission, it having established that consent to the prosecution had not been provided by the Attorney-General. 3. The background can be summarised very shortly. On 29th January 2000 the appellants attacked and robbed Vytautas Jelinskas, a pizza delivery man. During the robbery he was kicked to the head, sustained a subdural hematoma to the left side of his cranium and was left in a comatosed state from which he never recovered. 4. On 14th August 2000 both men pleaded guilty to robbery and on 16th August both were convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861, each man receiving a substantial term of imprisonment. Three days after the convictions, the victim contracted an infection and died of septicaemia. As a result both men were charged with murder. The prosecution case was that the appellants had subjected the victim to a vicious assault in which he sustained brain damage that led to his death 6 or 7 months later. The victim had to undergo invasive procedures as a result of the injuries and these carried a risk of infection. These procedures would not have been required but for the acts of the appellants. 5. The defence case was that there was insufficient evidence to show the acts of the appellants had been a significant cause of the death of the victim and that the original injury did no more than set the scene in which another cause of death had come about. Thus, the issue for the jury turned upon causation and detailed medical evidence was adduced in relation to that issue. The jury having convicted, this court reviewed the convictions and, as we have recounted, dismissed the appeal. Both men then commenced to serve their sentences of life imprisonment. 6. It was, we are told, Mr Hillman who referred the case to the Criminal Cases Review Commission on the grounds, we understand, of fresh medical evidence. In the course of its review the Criminal Cases Review Commission undertook a check to ensure that the Attorney-General had given consent for the prosecution for murder under the Law Reform (Year and a Day Rule) Act 1996. That consent was required because section 2 of the Act states that: "(1)Proceedings to which this section applies may only be instituted by or with the consent of the Attorney General. (2)This section applies to proceedings against a person for a fatal offence if— ... (b)the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death." 7. Having made enquiries both with the Crown Prosecution Service and the Attorney-General's Office, there is no record of an application having been made for the Attorney-General's consent in relation to the prosecution of these appellants for murder and no record of consent having been sought or granted. 8. Mr Simon Denison QC, for the Crown Prosecution Service, does not challenge that conclusion. Although there is no precedent identified where the grounds of appeal were a failure to obtain the Attorney-General's consent to institute proceedings under the Law Reform (Year and a Day Rule) Act 1986, a failure to obtain permission to institute proceedings for other offences in other circumstances has resulted in proceedings being declared a nullity. Thus, R v Angel [1968] 1 WLR 669, the defendant was convicted of offences of gross indecency and buggery with a young boy under section 8 of the Sexual Offences Act 1967. The consent of the Director of Public Prosecutions was required for the institution of such proceedings but had not been obtained. The Court of Appeal allowed an appeal stating the proceedings were a nullity without the consent of the DPP. 9. Similarly in R v Pearce [1981] 72 Cr App R 295 , a defendant charged with incitement to racial hatred, contrary to section 70 of the Race Relations Act 1976, the Attorney-General's consent was obtained. In the event the indictment was amended to allege a conspiracy to incite racial hatred the Court of Appeal concluded that the conviction for the conspiracy offence could not be sustained on the basis the Attorney-General had not given separate consent for this prosecution. In the circumstances, following the decision of this court in R v Booth (1999) 1 Cr App R 457, we declare that the conviction and judgment be set aside and annulled. This is on the basis that the irregularity in failing to obtain the Attorney-General's consent vitiates the entire trial. 10. The main issue which has been argued before this court has not been that conclusion; it has rather been whether the court should order a venire de novo or exercise its discretion that the appellant should not be tried again. On the face of it the grounds for ordering a venire de novo and thus a trial are extremely strong. These appellants were properly charged with murder, the consequences following conviction being lifelong, not merely in the form of the mandatory period in custody, pending a decision of a Parole Board following the conclusion of the minimum term, but also because of the life licence which permits the State to monitor the continued conduct of all those subject to life sentences. 11. Mr Denison argues that it is in the public interest that those charged with murder should be tried and that the delay, although of substance and not the fault of these appellants, should not prevent that trial from taking place. 12. Mr Russell-Flint QC, for the appellants, submits that this would in fact be the third occasion on which these two appellants would be standing trial for the same incident. The appellants at the time of the incident were 28 and 19 respectively and had served many years in custody already. Further, there was no intention to kill the deceased. Causation remained in issue. The minimum term had long passed and the family of the deceased have made it clear, even at the time of the original sentence for murder, that they bore no malice towards the appellants. 13. Mr Russell-Flint also prays in aid in relation to Mr Gowans the fact that he has now been transferred to an open prison, on the basis that at some time next year he has a realistic prospect of being released on parole. Thus, it is submitted that if fresh proceedings are instituted against him on a charge of murder he could well lose his place in open conditions and, if convicted, would have to recommence the life sentence which he has already served. 14. The position in relation to Mr Hillman is somewhat different. He was transferred to open conditions in or about 2012. While on leave from prison, however, he was arrested, charged and convicted for the offences of rape and assault by penetration for which he was sentenced to 8 years' imprisonment, clearly to run concurrently with the life sentence. Not surprisingly he has returned to closed conditions. His appeal against conviction for those offences was dismissed by this court - see [2014] EWCA Crim 2112 . The risk that he poses which falls to be considered by the Parole Board is therefore different. 15. The failure to obtain the consent of the Attorney-General is not the fault of either of these appellants. However, in our judgment, it is appropriate and in the interests of justice that a venire de novo should issue and that they be retried on the count of murder which they faced. If there is new medical evidence disclosed to the prosecution doubtless the position can be reconsidered. But in our judgment, the overwhelming public interest that those who are guilty of murder should be convicted and those in respect of whom there is a doubt of guilt acquitted, prevails. 16. That is not however to say that either appellant should be put back into the position in which they were in 2000. Taking the case of Mr Gowans, he has progressed through the minimum term that he was ordered to serve and is now in open conditions near or comparatively near the prospect of release. It would be quite wrong if the decision of this court were taken by the authorities in any sense to affect the risk that he poses to the public. If the Parole Board, based upon all the circumstances, have properly considered him suitable for open conditions, in our judgment, it will be wrong to change that approach simply as a reflection of this decision. Equally we anticipate that if the appellant is convicted every allowance will be made for the fact that he has in fact served the minimum term then considered appropriate, so that the Parole Board would urgently have to consider his case in exactly the same way as if this appeal had never been mounted. 17. The same applies in relation to Mr Hillman although different considerations obtain. To such extent as he is a risk to the public he will not be released from the 8 year sentence until he has served the minimum term required by that sentence, by which time this prosecution will have concluded. He also will fall to be considered (assuming he is convicted) in the same way as if this appeal and retrial had never been necessary. In both cases the present position of these appellants ought to be preserved and they should not suffer a detriment for the consequences of the error to which we have referred. 18. We cannot leave the case without expressing our concern that this error should ever have occurred and that considerable public funds, in the original trial and appeal, should have been wasted because of a failure to obtain appropriate authority. We are assured by Mr Denison that this type of case is now subject to greater supervision within the Crown Prosecution Service and that there is a flag on the system which triggers whenever the consent of the Attorney-General is required which ensures that this requirement is not missed. We trust that this error will not happen again. 19. For the reasons we have identified we make the order namely, that the conviction and judgment be set aside and annulled and that a new trial shall take place on the charge of murder. The defendant is ordered to appear before a Crown Court to be determined by the Presiding Judge for the South Eastern Circuit to plead to the indictment. We make an order that these proceedings shall not be reported until after the conclusion of the retrial. That order is made under section 4(2) of the Contempt of Court Act 1981. 20. MR RUSSELL-FLINT: Might we obtain a copy of the judgment, my Lords, so that we can, if need be, provided it to the prison authorities if it is anonymised suitably? 21. PRESIDENT OF THE QUEEN'S BENCH DIVISION: In this case we direct that the judgment which will be transcribed should be provided to both appellants and a copy to you or your instructing solicitors if you have any for such use to be made of it as is felt appropriate. 22. MR RUSSELL-FLINT: Thank you very much indeed. 23. Secondly, can I ask this? I have the benefit of a representation order issued by the Registrar. Those who instruct me were instructed by Mr Hillman initially, in respect of the matter referred to in the reasons for the reference to this court to look at the fresh medical evidence that had been obtained. As is set out at paragraph 26 of the statement of reasons for a reference to the Court of Appeal it was as a result of the letter sent by those who instruct me, Messrs Kaim Todner, to the Attorney-General that his office checked as to whether or not the consent, which has led to this appeal being allowed in the terms that it has, to come before this court. The request is that this court, which is empowered to do where it allows an appeal under the 1968 Act against conviction, to order a defendant's costs order in favour of these appellants. It will deal with the work that my solicitors have undertaken in respect of preparing this matter for this appeal. 24. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Is there anything else? Do you need to take instructions on any other aspect of the judgment in the light of your previous observations? 25. MR RUSSELL-FLINT: I do not think I need to take instructions at this stage. We were trying to get down to see Mr Gowans whilst my Lords were considering the judgment. I do not think there any specific point we sought to make. But at the moment I make no application for, if that is what your Lordship is thinking of, bail. We will take instructions with him after this court has dealt with this appeal. 26. PRESIDENT OF THE QUEEN'S BENCH DIVISION: In the normal course my practice would be to say that any application for bail should be made to the Central Criminal Court because the trial will be conducted at a court determined by a presiding judge of the South Eastern circuit likely to be the Central Criminal Court. In the light of the unusual circumstances if you want to mention the case back at 2 o'clock you may do so. 27. MR RUSSELL-FLINT: Thank you very much indeed. 28. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Is there anything else Mr Denison? 29. We will make a representation order in the terms sought. A defendant's costs order to be assessed if not agreed. 30. MR RUSSELL-FLINT: I am very grateful.

```yaml citation: '[2015] EWCA Crim 952' date: '2015-05-07' judges: - MR JUSTICE HICKINBOTTOM - MRS JUSTICE THIRLWALL 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: 200403951/A3 Neutral Citation Number: [2004] EWCA Crim 3222 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 7th December 2004 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE BELL MR JUSTICE HUGHES - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 89 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR H DAVIES appeared on behalf of the ATTORNEY GENERAL MR P BOGAN [MR K HOSSEIN-BOR] appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. LORD JUSTICE KENNEDY: HM Solicitor General seeks the leave of this Court to refer to the Court a sentence which she considers to be unduly lenient and we grant that leave. 2. In January 2003 Earl Webster Cox was arrested in Colorado. His house was searched and computer equipment was seized. Officers from the United Kingdom's National Hi-Tech Crime Unit were permitted to take a copy of the hard drive from the computer. That resulted in investigations being made and a search warrant being obtained which was executed at the Huddersfield home of the offender at about 10.00 a.m. on 18th August 2003. He is a single man born on 19th February 1959, so then 44 years of age. He was present when the police arrived. He was taken to the police station where he became ill and had to be transferred to hospital, but he recovered quite quickly and was fit to be interviewed later the same day. At his home address the police officers had found computer equipment and 161 compact disks. Examination of those compact disks showed that three of them contained a total of 174 indecent images of children. 3. The connection between Colorado and Huddersfield was easily made because Cox in Colorado, using the name "Wizard", organised passport-protected bulletin boards which enabled those interested in paedophilia to communicate with each other across the world and share information, but not images. So, for example, a person with access to a bulletin board could post on that board, in computer-speak, a request for a particular type of pornography and to that request others might response. In the lower court prosecuting counsel, Mr Rae, described bulletin boards as being like private members' clubs with administrators acting as officers of the club. They are, he said, "the life blood of the paedophile community". 4. One of Wizard's bulletin boards was the "Lost Property Community Board" which existed to enable administrators of other boards to discuss matters of common interest, and the Colorado material showed that in March 2002 the offender had been welcomed to the Lost Property Community Board as an administrator of the Ranchi board. Cox, or Wizard, had close links to that board, but he was not an administrator of it. It had, it seemed, its own head administrator and about six other administrators of whom the offender was one. 5. After his return from hospital on the day of his arrest, the offender was interviewed by two officers of the NHTCU for about one hour and 25 minutes. He was offered the services of a solicitor, but declined. It is clear from the transcript of that interview that it was carefully and courteously conducted by experienced officers. It is also clear that the offender was co-operative, even if, as the prosecution later contended, he endeavoured to minimise his role as an administrator and to exaggerate his disenchantment with paedophilia. 6. On the following day, 19th August 2003, the offender was interviewed for a second time. On that occasion he did have a solicitor present and the interview lasted for about one hour and 20 minutes. As on the first occasion, the offender was apparently co-operative throughout. Examination of the offender's computer revealed what was posted on the Ranchi bulletin board on the day of his arrest. The material was of the type to which we have already referred. In addition, in the unallocated clusters of the hard drive there were two images of naked young girls, one of which had been partially erased. That indicated that two readily available programmes for the eradication of material from the hard drives had been run and it was naturally suspected that the offender had run those programmes to thwart any inspection of his activities that might take place. 7. During the course of his interview, the offender was asked about the Ranchi bulletin board and about his position as one of its administrators. He said that the board operated at two levels: the public level as shown on the board on the day of his arrest and an underground level only accessible to those who had the address. At the public level the board attracted attention not only from those who were sympathetic to it, but also from law enforcement officers, persons unsympathetic to any such enterprise and hackers who simply sought to challenge any form of security. The head administrator decided how the board should be run. The role of the offender was mainly to remove unwanted material from the board, whether it was in the form of postings, which had exhausted their useful life, or spam. He had access to all levels, but at the underground level the need to remove material did not exist. In order to discharge his duties as an administrator the offender visited the Ranchi board three to five times per day. 8. He said that at the time of his arrest about 30 per cent of the material on that board related to child pornography, the remainder being concerned with adult pornography. When he joined the Ranchi board the percentage of child pornography was, he said, less, and he had no means of knowing the precise nature of the material to which the postings referred. As Mr Rae said when opening the case for the prosecution in the Crown Court: "... what is essentially being distributed are what are described as URLS or 'earls', and these are web addresses, and from the title you can get an indication of the content but it is never a wholly descriptive title. ... So somebody facilitating their distribution does not actually know if they are facilitating distribution level 1, 2, 3, 4 or 5." Those numbers referred to the judgment of this Court in R v Oliver and others [2003] 2 Cr App R(S) 15 to which we refer later in this judgment. 9. The offender could have obtained access to some of the material referred to in the postings on the Ranchi bulletin board, but access to some of the material would have required encryption software which he did not possess. He maintained that he had no interest in child pornography beyond levels 1 and 2, and that assertion was consistent with what was found on the compact disks and on the hard drive of his computer. He was, however, an active administrator, as was apparent not only from what he had admitted doing in relation to the Ranchi board, but also from his contacts with the LPCB, which, Mr Rae submitted, showed that he was trusted in the community which he served. 10. The offender was sent to the Crown Court for trial by the Magistrates' Court on 27th August 2003. On 10th May 2004 he was arraigned on an indictment which contained 20 counts. Four days earlier, on 6th May 2004, Mr Rae signed a 30 page case summary which was intended, amongst other things, "to explain how the Crown puts the case in respect of the various allegations made". Counts 19 and 20 can be disregarded as Mr Rae acknowledged in paragraph 23 of his summary "there is an argument that there is no evidence to support them". Counts 17 and 18 related to the use of the two programmes run by the offender to eradicate material. The use of each of those programmes was alleged to be an act tending and intended to pervert the course of public justice. The offender never admitted using either programme for that purpose. It was contended on his behalf that he used the programmes to prevent the hard drive on his computer from being overloaded. Whether or not that was his motivation has never been investigated, because when he pleaded not guilty in relation to those two counts they were ordered to lie on the file on the usual terms. 11. That left 16 counts which fell into three groups. (1) Count 1, conspiracy to distribute indecent photographs of children which related to the offender's activities as administrator of the Ranchi bulletin board. (2) Counts 2 to 10 inclusive, which each alleged that the offender made a level 1 indecent photograph of a child. They were specimen counts relating to the images recovered from the compact disks. (3) Counts 13 to 16 inclusive, which were the same as the preceding counts but related to the lesser number of images at level 2. 12. The documentation which was required by the defence was not disclosed as early as it should have been, and, even when the case summary was produced, it did not briefly encapsulate, as in our judgment it should have done, precisely how the Crown put its case in relation to the first count. Nevertheless, Miss Dix-Dyer, for the offender, was able in the time available to advise her client, and, with the benefit of that advice, on 10th May 2004 he pleaded guilty to counts 1 to 16 on the following written basis of plea: "1. The defendant pleads on the basis that there is no evidence of him up-loading images. His own interest is mostly level 1 with a few level 2 images. As an administrator he was facilitating others to distribute what they want to distribute, namely website addresses of sites containing indecent images. 2. Only 30 per cent of the material on Ranchi was paedophilia and that when the defendant first went on the board it was less than it was at the time of his arrest." 13. There had been good liaison between counsel prior to the hearing and the pleas were accepted as tendered. The case was then adjourned for the preparation of a pre-sentence report and was relisted for sentence at Bradford Crown Court on 11th June 2004. On that day the Crown was represented by Mr Rae, who clearly has experience in the field, and officers from the NHTCU were present to assist him in court. We mention that because a good deal of what was said to us last Friday by counsel now appearing for the Solicitor General, namely Mr Davies, seemed to amount to little more than a polite submission that either prosecuting counsel in the crown court failed to present the case as clearly as he should have done, or the Recorder failed to understand it. 14. Whichever way it is put we are not persuaded by it. Mr Rae spent a considerable amount of time outlining the facts which we have set out in this judgment. As already noted, he pointed out that the offender as administrator would have an indication of the content of the material on the Ranchi bulletin board, but would not actually know its level. Foreshadowing Mr Davies in this Court, Mr Rae invited the attention of the Recorder to some of what was posted on the Ranchi board, saying at page 14 of the transcript of his opening: "'Extreme Lolitas.com' I have said you cannot tell whether it is level 1 or 5 but if ever there was likely to be an indication of a higher level, the use of the term 'extreme' would hint at that. I am not suggesting that the defendant has accessed them, I am using this as an example of postings within the paedophile community and what is contained within them." 15. The Recorder then intervened to show that he understood that as relating to count 1. Mr Rae continued: "Absolutely, that is the only relevance of it, yes. As I say, my learned friend I know is going to address your Honour on the fact that he is in ignorance of the content. I am not seeking to go behind that but I am seeking to indicate that the language used is ambiguous in this outline. We have 'Underage-video.com; 'Pre-t-erotica; 'Pure Lolita; 'Boy erection 'Lolita Sweet; 'Lolitas for sale; 'Little pussy info; 'Pre-teen goddess; 'Lolita's factory' -- and what the Crown have to say about this is that by facilitating the distribution of these sort of messages on the Ranchi bulletin board that is the subject matter of count 1, the defendant is fulfilling the role that he admits to of being an administrator." 16. For reasons which will emerge later in this judgment it is important to note Mr Rae's position, that he was not seeking to go behind the defence assertion, that the offender was in ignorance of the content of the material to which the posted messages referred. Miss Dix-Dyer for the offender accepted the submission of Mr Rae that an administrator is not necessarily to be equated with a distributor, but left it to the court to say which was worse. 17. At page 3 of the transcript of her mitigation she set out her understanding of the way the case in relation to count 1 was put against her client: "... he facilitated the posting of the websites by assisting in providing the medium by which others could post those website addresses. Really, posting adverts for websites, although not specifically detailing what would be found there if one went to have a look." She recognised that had to be a simplification and as such no one objected to it. 18. The offender did have one potentially relevant conviction in 1997, when, for five offences of publishing an obscene article, he was fined £100 and was ordered to undertake community service for 80 hours. Apparently that offending was concerned with adult videos and Miss Dix-Dyer invited the court to disregard it. As she pointed out, there is no evidence in this case of financial gain, and the offender's life has been devastated by his arrest. He was, as was clear at the time of his arrest, in relatively poor health. At the time of sentence he was said to be suffering from angina and a blocked artery. After his arrest he was released on bail, but press publicity made him a target and he had to flee his home. He could not even risk returning for his possessions, so the landlord of the property disposed of his belongings and relet the property. 19. Before we turn to the decision of the Recorder it is appropriate to remind ourselves of the relevant statutory provisions and of one guideline decision of this Court. It is an offence contrary to section 1(1)(b) of the Protection of Children Act 1978 to distribute indecent photographs of children. The penalty for such an offence committed after 11th January 2001 is up to ten years' imprisonment. It is therefore an offence to conspire to distribute such photographs and for that offence the same penalty is available. 20. In August 2002 the Sentencing Guideline Panel, at the request of this Court, offered advice as to the proper approach to sentencing for offences contrary to section 1(1) of the 1978 Act . That advice was adopted by the Court, with some minor modifications, in R v Oliver . The Panel had advised, and the Court accepted, at paragraph 9 of the judgment that: "... the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it." 21. As to the nature of the material, the Court set out five levels: "(1) images depicting erotic posing with no sexual activity; (2) sexual activity between children, or solo masturbation by a child; (3) non-penetrative sexual activity between adults and children; (4) penetrative sexual activity between children and adults; (5) sadism or bestiality." 22. Turning to the nature of the offender's involvement, the Court said at paragraph 11: "... the seriousness of an individual offence increases with the offender's proximity to, and responsibility for, the original abuse. Any element of commercial gain will place an offence at a high level of seriousness. In our judgment, swapping of images can property be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such material. Widescale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation to the original victims." 23. The Court then turned to particular factors relevant to the level of sentence and set out guidelines, not to be construed as a straitjacket, from which a sentencer cannot escape. For present purposes we can begin with paragraph 16: "We agree with the Panel that the custody threshold will usually be passed where any of the material has been shown or distributed to others, or, in cases of possession, where there is a large amount of material at Level 2, or a small amount at Level 3 or above. A custodial sentence of up to six months will generally be appropriate in a case where (a) the offender was in possession of a large amount of material at Level 2 or a small amount at Level 3; or (b) the offender has shown, distributed, or exchanged indecent material at Level 1 or 2 on a limited scale, without financial gain. A custodial sentence of between six and 12 months will generally be appropriate for (a) showing or distributing a large number of images at Levels 2 or 3; or (b) possessing a small number of images at Levels 4 or 5. 17. In relation to more serious offences, a custodial sentence between 12 months and three years will generally be appropriate for (a) possessing a large quantity of material at Levels 4 or 5, even if there was no showing or distribution of it to others; or (b) showing or distributing a large number of images at Level 3; or (c) producing or trading in material at Levels 1 to 3. Sentences longer than three years should be reserved for cases where (a) images at Levels 4 or 5 have been shown or distributed; or (b) the offender was actively involved in the production of images at Levels 4 or 5, especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain; or (c) the offender had commissioned or encouraged the production of such images. An offender whose conduct merits more than three years will merit a higher sentence if his conduct is within more than one of categories (a), (b) or (c) than one where conduct is within only one such category. 18. Sentences approaching the ten year maximum will be appropriate in very serious cases where the defendant has a previous conviction either for dealing in child pornography, or for abusing children sexually or with violence." The Court went on to point out that the level of sentence indicated was appropriate for an adult after a contested trial and the offender being without previous convictions. 24. At paragraph 20 the Court turned to aggravating circumstances. We need not list them all. They include a large number of images and a sophisticated approach to trading. Mitigating factors include, of course, a good character and an early plea of guilty. 25. The Recorder, having taken time to consider the submissions made to him, said: "It is clear the prosecution cannot establish as to what sort of level, on what is sometimes called the Oliver scale going from 1 rising to 5, the material which was essentially contained within the websites given on this bulletin board, at what level these particular images centred. But it seems clear to me, having regard to the addresses of the URLs, as I understand them to be called, and also the measures which were being taken to ensure that only those who wish could obtain access, that they exceeded Level 2. Beyond that I am not prepared to go because I do not think it would be fair, having regard to the criminal standard of proof." 26. He discounted the 1997 conviction as wholly dissimilar and imposed a sentence of 12 months' imprisonment in respect of count 1, one month's imprisonment in respect of counts 2 to 12 and two months' imprisonment in respect of counts 13 to 16, all sentences being ordered to be served concurrently. The licence period was extended to four years under the provisions of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 , an order was made disqualifying the offender from working with children and as a convicted sex offender he was required to register for ten years. 27. On 9th July 2004 the Solicitor General signed the reference referring this matter to this Court, and the reference, which relates only to the sentence imposed in respect of count 1, was lodged with the Court of Appeal on that day. As is usual, the factual basis for the reference was then considered by counsel who had appeared for the prosecution in the Crown Court and the final reference was signed on 24th August 2004. Up to that point there can procedurally be no ground for complaint, but it did have to be borne in mind that the offender was due for release on 8th December 2004. 28. What happened thereafter is, to say the least, surprising. The offender had decided to seek fresh representation, and we understand that Mr Bogan, who appeared for the offender before us, was not instructed until mid-November. But before he was instructed the Solicitor General decided, in consultation with her advisers, to seek out fresh evidence which it was anticipated that this Court would be invited to receive and consider. 29. That fresh evidence, in the form of four statements and a file of documentary material, was sent to the Court on 26th November, just one week prior to the date fixed for the hearing of the reference and 12 days prior to the respondent's anticipated date of release. The reference had been expected to last one hour. If the contentious issue of whether fresh evidence can be admitted in relation to a reference were to be considered, it was plain that the hearing was going to take far longer than the time allowed for it and thus that the reference was likely to be taken out of the list and relisted after the offender's release. We do not regard that as acceptable and it must not happen again. In the event, Mr Davies decided not to rely on the fresh material, and, even without it, the hearing of submissions lasted for most of the court day. We will return to that topic at the end of this judgment. 30. Mr Davies submitted that the culpability of the offender arises less from the material recovered from him, and more from his dedicated role for providing access for others. We agree. The sentencing judge was alive to this. Mr Davies further submitted that distribution of child pornography is a matter of real concern. Again, we agree. Parliament and the Court in Oliver had express regard to distribution. He invited our attention to the intrinsic nature and purpose of bulletin boards and drew our attention particularly to what was on the Ranchi bulletin board at the time of the offender's arrest. We have already referred to that. He submitted that if the activity was lawful, there would be no need for so much security. That is only partially correct because a bulletin board dealing with pornography which is not unlawful might still attract the attention of those opposed to it and of hackers. 31. But the core of Mr Davies's submissions, as it seems to us, was that if the attention of the sentencing judge had been directed, as it should have been, to the content of the bulletin board at the time of the offender's arrest, he could then have inferred that the material which the offender was facilitating was to his knowledge not low level material, but extended to hardcore paedophilia up to level 5, or at least that he consciously took the risk that it might be material of that kind. 32. We accept that if the circumstances were such that the sentencing judge could and should have drawn either of those inferences then the sentence which he imposed was unduly lenient to a significant degree. But it was not open to the sentencing judge to draw either inference in this case. As Mr Bogan pointed out, reflecting something said by Miss Dix-Dyer in the Crown Court, the prosecution might have been better able to invite the court to draw the inferences if they had accessed some of the sites which were apparent on the bulletin board, but that may not have been technically feasible. Mr Rae plainly came to the conclusion that the material on the bulletin board, although suggestive, was not sufficiently suggestive to make good what is now the prosecution case. That is why he said that he could not go behind the defence assertion that the offender was in ignorance of the contents of the material to which the posted messages referred. That concession having been made by responsible counsel in the Crown Court it is simply not open to Mr Davies on behalf of the Solicitor General to invite us to sentence on a different basis here. 33. If the problem should ever recur, as it may, the moral surely is for the prosecution to avoid being drawn into unnecessary technicalities and to set out in simple terms in a few lines, and at an early stage, the gravamen of its case and the evidence on which it relies to prove it. Such a formulation would be essential if the matter were to be made intelligible to a jury, and, as this case illustrates, it is also valuable when no jury is required. 34. Mr Davies also invited to us clarify the Oliver guidelines, in particular as to whether anal and/or vaginal intercourse between children should fall within level 2. That issue does not arise in this case, and, as we explained during the course of argument, if the matter is to be dealt with other than by reference to the facts of a particular case, it is not a matter now for this Court. 35. We should also say something about the use of programmes designed to erase material. We accept that in an appropriate case the use of some programmes may well assist a court to draw the inference that the material erased was illegal and that the reason for erasing it was to thwart the criminal investigation. But if the prosecution includes in an indictment counts relating to the use of the programmes and then decides not to proceed with those counts after pleas of not guilty have been entered in relation to them, we find it difficult to envisage circumstances in which a sentencing judge could properly, without hearing evidence, infer that the programmes had been used to pervert the course of justice. 36. Once it is clear that we cannot in this case draw the inferences for which Mr Davies contends, the criticism of the sentence passed by the Recorder falls away. He was entitled to find, as he did, that the prosecution had failed to demonstrate that the offender was to his knowledge facilitating the distribution of material at levels significantly in excess of level 2. The fact that he was a distribution organiser was an aggravating circumstance and an organiser facilitating the operation of many distributors may well be more culpable than an individual distributor even on quite a large scale. So a sentence of two years' imprisonment would have been justified if the matter had been contested. But if the sentence were to be higher that would be difficult to reconcile with the sentences suggested in Oliver for those who, for example, distribute images at levels 4 or 5, or are actively concerned in the production of such images. Bearing in mind the plea of guilty and the mitigation which was available, we are not persuaded that the sentence imposed in this case was unduly lenient and we dismiss this application. 37. We turn now to the length of hearing. The Criminal Appeal Office was never advised by anyone on behalf of either the Attorney General or on behalf of the respondent that the hearing in this case would last more than the time allowed for it, namely one hour. That is plainly unsatisfactory and we asked for an explanation. We have now received a letter from the Attorney General's Chambers in which there is an apology for the failure to provide a proper time estimate in this case and a promise that in future the Legal Secretariat to the Law Officers will always provide a time estimate in relation to any case which is considered likely to take more than one hour to conclude. We accept the apology and are content to proceed on the basis now envisaged, but we must also point out that advocates instructed to appear in this Court have a separate obligation to advise the Criminal Appeal Office if, in their opinion, the time allowed for a hearing is or becomes seriously inaccurate. Accurate time estimates are essential if there is to be effective listing and effective listing is in the interests of everyone.

```yaml citation: '[2004] EWCA Crim 3222' date: '2004-12-07' judges: - LORD JUSTICE KENNEDY - MR JUSTICE BELL - MR 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 No: 2012/02442 Neutral Citation Number: [2013] EWCA Crim 1149 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM PRESTON CROWN COURT THE HON MR JUSTICE DOUGLAS BROWN T971364 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/07/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE MACKAY and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : Kevin Samuel Cole Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C H Blaxland QC and D Emanuel for the Appellant J Price QC for the Crown Hearing dates: 18 th June 2013 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is an appeal against conviction by Kevin Cole following a Reference by the Criminal Cases Review Commission (CCRC) under s.9 of the Criminal Appeal Act 1995 of his conviction in March 1998 at Preston Crown Court before Douglas Brown J and a jury of murder of John Dookie and wounding James Handyside with intent to cause grievous bodily harm. An earlier application for leave to appeal against conviction was refused by this court in February 1999. 2. The arguments on this appeal are largely based on the contents of a document made in the immediate aftermath of the offences. In the present proceedings the document was referred to as M8. It is a record taken by the police of a telephone description given by a witness, Mrs Ellis, who was later to identify the appellant on an identification parade. M8, or the information contained in it, was not disclosed to the solicitor acting for the defendant before the identification parade. It was properly disclosed to the defence before the trial, but leading counsel decided that it should not be deployed in evidence. Mr Henry Blaxland QC is critical of both decisions. The result, he submits, was that the appellant was convicted by a jury which was ignorant of critical information which was also of importance to the advice given to the defendant by his solicitor during the course of the investigations. Accordingly, on mature further analysis of the evidence, the safety of the conviction can no longer be sustained. M8 should be admitted in evidence in accordance with s.23 of the Criminal Appeal Act 1968 . The background 3. John Dookie and Thomas Handyside were drug dealers who operated in the Meadow Street area of Preston. Anthony Kirk and Stephen Mellor were also drug dealers operating in another area of Preston. They began to deal in drugs in the Meadow Street area, undercutting the prices and providing greater quantities of heroin than Dookie and Handyside. 4. In early 1997 there was a steady increase in tension and rivalry. A number of meetings took place, one on 7 February 1997 where the four men met by arrangement at the Rat and Raven public house in Preston, close to the scene where Dookie was later to meet his death, and Handyside was to be seriously wounded. During the course of this meeting Stephen Mellor and Kirk threatened Handyside and Dookie with knives. Thereafter the level of violence escalated. On 8 February Mellor had a fight with one of Handyside’s supporters, Mr Osborne. Then Mellor met Handyside and a small group of others, and in the early hours of 9 February they went to the home of one of Handyside’s distributors, Mr Allan. They anticipated that both Handyside and Kirk would be present. At the property Kirk threatened to kill Dookie and stabbed him in the leg, Mr Osborne was stabbed three times by him, and was struck by Mellor with a hammer. Mr Allan was slashed with a knife across the head. He was taken to hospital but after he discharged himself, he was attacked for a second time by a group of masked men who told him to tell Handyside and Dookie “they’re gonna get it”. 5. On 13 February Kirk saw Allan again, and told him that if Handyside and Dookie came anywhere near his home again they would get done properly. Later that evening Handyside and Dookie were out driving when they saw Kirk with another youth and some girls. When he saw the car Kirk approached it, pretending that he was carrying a weapon of some kind. Dookie was driving the car, and Handyside told him to drive at Kirk and run him over. At the later trial the Crown accepted that Dookie did indeed try to run Kirk down. 6. On 14 February Dookie spoke with Handyside, insisting that the dispute between them and Mellor and Kirk needed to be sorted out. They attempted to arrange a meeting to take place on that day at the Rat and Raven. Dookie and Handyside kept the appointment but Mellor and Kirk did not. After leaving the Rat and Raven, Dookie and Handyside saw Mellor and the meeting was rearranged for 5.45 at a nearby block of flats. The fatal incident occurred shortly afterwards. 7. Cole lived in Liverpool. He was not a Preston man, and this territorial dispute was not really his argument. However he was an associate of Kirk. Kirk and Cole were in contact by pager and telephone on 13 and, frequently so, on 14 February. The first relevant call in the evening of 13 February was when Cole tried to contact Kirk by his pager, and then through a mobile phone belonging to Parson. The considerable activity next day included an occasion when Kirk rang Cole back from a call box in the shopping centre. By 5.34 Cole had travelled to Preston and was keeping very close company with Kirk and Mellor. This was proved beyond doubt by photographs which came from a video in Healds supermarket. Healds is a short walking distance away from the scene of the attack on Dookie and Handyside. The Crown’s case was that Cole’s arrival in Preston that afternoon was not accidental or coincidental. He had come to support Kirk and Mellor and that is why he was with them just a few minutes before the attack. As well as proving that Kirk and Mellor and Cole were close together at a critical time, the images from Healds show the sweater or top then being worn by Cole. The upper clothing shown on the video did not coincide with the description of it later to be given by the identifying witness, Mrs Ellis. 8. At 5.44 Kirk and Mellor went to the block of flats but refused to go up into them, and used the intercom to suggest a meeting at the Rat and Raven public house. Dookie and Handyside went to the Rat and Raven but found that it was closed. The four men agreed to go to another local public house, the Variety. 9. The attack on Dookie and Handyside took place in St Peters Street. Handyside was struck on the head with a baseball bat, and knocked to the ground where he was stabbed in the right buttock. He gained himself a little time by giving his attackers the impression that he was carrying a gun, and with that he was able to move away towards the Variety public house. As he made his way there he saw Kirk going towards Dookie. The last Handyside saw of Dookie was Dookie backing away with his hands held out wide, facing Kirk who was moving towards him. Dookie was fatally stabbed. He was later found in Warwick Street, a short distance away from the scene The murder weapon was recovered. It bore fibres from Dookie’s jacket, and the gloves worn by Kirk at the time of the attack. The Crown’s case was that Kirk was responsible for the fatal stabbing of Dookie, and that as the investigation proceeded, he sought to distance himself from it. 10. A variety of different witnesses saw what happened to Mr Dookie. One witness, who knew Kirk, Mellor, Handyside and Dookie, described how five or six males came from different directions to attack them. Another witness saw four or five people kicking Dookie as he lay on the floor. In reality, so far as this appeal is concerned, nothing turns on this area of evidence, but it does serve to underline how a confusing situation can result in confusion among eye witnesses. 11. More important, there was no eye witness or scientific or indeed any other evidence which directly linked Cole with the attack on Dookie. The Crown’s case was that he was one of the gang of assailants, who broke away and followed Handyside the short distance from the scene of the attack to the Variety. There was some differences between eye witnesses about whether it was one or two of those attacking Dookie who broke off to follow Handyside, and it is quite unrealistic for us now to seek to attempt to reconcile them. As Handyside reached the Variety, he stumbled on a step and fell. Whether one or two had been following him, he was physically attacked by only one individual. He felt someone stab him in the back. He turned and looked at his assailant. The assailant said, “you scumbag” or “you shit bag” in what he described as an Irish accent. He, of course, knew Kirk well, and he never incriminated Kirk and remained adamant that the man who chased him to the door of the Variety was not Kirk: the last he had seen of Kirk as he fled the scene was Kirk going towards Dookie. Notwithstanding many criticisms which can fairly be addressed to Handyside’s credibility, it is difficult to see, and no one has suggested any reason why, if Kirk was involved in the attack on him, he should fail to incriminate him. The evidence which linked Kirk to the fatal use of the knife against Dookie provides very strong support for Handyside’s evidence that as he was running away from the scene, Kirk was confronting Dookie just before the fatal stabbing took place. When he was first interviewed Kirk, too, repeatedly denied any involvement with the attack on Handyside at all, asserting that he had run away in the opposite direction, but during a later interview, he changed his story completely and said that he had followed Handyside and exchanged insults with him at the Variety before running in the opposite direction. Even then he denied carrying a knife or stabbing him. 12. A number of witnesses saw the attack on Handyside. They provided descriptions which, unsurprisingly, were not in identical terms. One crucial witness, Mrs Ellis, was later to identify Cole on a properly conducted identification parade. M8 – and the evidence of Mrs Ellis 13. The first that we know of what Mrs Ellis had to say about the attacker was a note of a telephone call made by her to the police at 15.54 on the afternoon of 15 th February. This is M8. 14. The note reads: “Last night just before 6pm I believe I witnessed the aftermath of the assault. I saw the lad with head injuries run into the Variety public house, and saw him chased by another young man. I heard some threats made by the second man. He was 5ft 10ins slim, very short number 1 haircut, blond, very clean appearance, wearing a horizontally striped upper garment – mauve or similar colour. I then saw this man run up St Peters Street towards Moor Lane. I deliberately took a good look with a view to remembering his face, and I would definitely recognise him again.” This was the note. Mrs Ellis did not read it through or sign it. 15. In her witness statement dated 17 February 1997, Mrs Ellis described witnessing Handyside fleeing from the scene where Dookie was being attacked. She then saw his assailant “hot on the heels” shouting obscenities at Handyside. She said she had a totally unobstructed view of the entire incident and a good look at both of the men involved. She gave a description of the second man, “white about 5ft 10ins-5ft 11ins tall, stocky build, quite muscular, but in proportion …, about early to mid 20s, with very light brown or mousy coloured hair, but definitely not blond. His hair was a very cropped short almost shaven style through which I could see his scalp which I think gave his hair a “lighter colour look than it actually was”. She heard his voice when he shouted obscenities and she would describe him as having a local accent. Of his clothing she could only describe his jumper because she had a “good close up view of him which afforded me the opportunity to concentrate more so on his face and his top half”. She “distinctly” remembered, because she thought it was a very nice sweat shirt style jumper with a crew neck. It had horizontal stripes throughout. She added that she would definitely be able to recognise both men again if she saw them. 16. The description of the assailant, as recorded from the telephone message, spoke of the assailant as “slim” with blond but very short number 1 haircut. In her witness statement Mrs Ellis described him as a man of stocky build, quite muscular, with very light brown or mousey but definitely not blond hair. The hair was very cropped, short almost shaven style which, because she could see his scalp, gave his hair a “lighter” colour look than it actually was. 17. We must now move much further ahead. In November 2003, some 5½ years later, the CCRC contacted leading counsel at trial, asking for information about this record which, so it was suggested, appeared not to have been disclosed to the defence. Counsel responded that he had insufficient recollection to state with certainty that he had not been so provided, but he thought it was most unlikely that he had been. He added, “Had it have been I would definitely have used it”. In a letter to his client he wrote that if the record had been disclosed, “it is possible that a tactical decision was made not to use the log”, but his immediate response was that if he had seen the log he would definitely have used it. 18. After a prolonged investigation, and the lapse of a further 5 years, when the available material was disclosed to him, counsel agreed that he had seen M8 and considered it, and had decided that it should not be used. Without M8 there were weaknesses in the evidence of Mrs Ellis in relation to the height and upper garment worn by the assailant. The potential downside was that if he had cross examined on the basis of the content of M8 prosecuting counsel would have been permitted to re-examine to establish that for this witness the critical identifying feature was the face of the assailant rather than his height or his upper garment. The identification parade 19. On 20 February, after he had been interviewed by the police and adamantly denied that he had been in Preston on 14 February, Cole participated in an identification parade. A number of witnesses examined the line. He was identified by Mrs Ellis. Mr Blaxland suggested that if the solicitor then acting for Cole had been informed of the content of M8 Cole would have been advised not to participate. Indeed that is the advice Cole’s solicitor says he would have given if he had seen M8 before the parade. He would however also have advised, as he advised throughout, that although Cole was entitled to refuse to participate in the parade, police officers would be likely to take alternative steps to see whether Mrs Ellis was in a position to identify him. These steps are normally regarded as less satisfactory from the point of a view of a defendant than a properly conducted identification parade. The solicitor was extremely careful, inviting the officer in charge of the parade to note that Mrs Ellis, among other witnesses, had given descriptions as to the clothing worn by the suspect which was contrary to the clothing shown from the video at Healds; that Cole had already admitted in interview that he had been in the vicinity of the incident and seen the start of the attack and then left, so that it was duplicitous to seek to “put him in the vicinity”; and that so far as the witness Ellis was concerned, she described the assailant as being significantly shorter than Cole. The officer noted these comments but pointed out that if objection was taken to the inspection of the parade, then at some future date some other “form” of identification would have to be arranged. Thereafter, at the behest of the solicitor, it was agreed that the participants in the parade should sit down. He was concerned that Cole was a very tall man and that if all the volunteers sat down, the differences in height would be ironed out. When that was agreed, the appropriate consent was given. 20. Events at the parade itself were examined at the trial. Nine men took part, with Cole sitting at number 6. Mrs Ellis asked if they could stand, but was told that they could not. She asked if she could have another look, and asked if number 9 could stand. She said that she wanted some assistance in relation to height. She was told that number 9 would not stand. She told the jury that she was not seriously contemplating identifying number 9, but she said that she was “a little thrown” when she was told that they could not stand, and that they did indeed look similar in height. She asked if she could have another look, and did so. She identified Cole saying, “I can identify according to what my memory is doing”. She was asked how sure she was and said, “I have no doubt about my choice at my time. I do not think I am wrong”. 21. Moving forward, to the trial, we have been provided with a full transcript of her evidence. She gave a brief description of what she had seen, and was then asked about Handyside’s assailant. She said that he was taller (that is, than Handyside) “quite muscular and fair skinned and fairish hair, quite cropped, and he was wearing jeans and a striped jumper. She gave a description of the jumper which had “quite broad stripes and they were sort of quite distinctive”, … mauvey … it was sort of a orangey/tan colour. But they were sort of quite … maybe two-three inches; quite wide horizontal stripes”. 22. She was first cross-examined on behalf of Kirk. She confirmed the description of the jumper worn by Handyside’s assailant, consistently with the description given in her witness statement. 23. When she was cross-examined on behalf of Cole, the first issue addressed was the identity parade. In relation to asking somebody other than what was described as “her final choice” to stand up, (that is number 9) she said that she was not seriously contemplating whether or not to identify that individual. As the judge indicated in the summing up she said that she was “a little thrown when she was told that she could not have everybody stand”. She was asked if she could amplify what she meant when she said “I can identify according to what my memory is doing”. It was suggested that those words meant that “there was some element of doubt” in her choice. Again, she denied any doubt, “not at the time, no there wasn’t”. She was asked if she had focussed on the height of the assailant, and she said “it wasn’t the height initially. It was the actual features”. She said that she wanted to make “100% sure”. She had been really thrown in relation to the men not standing, because she expected them all to stand, and it confused her at the time when she was told that they could not. 24. She was then asked whether if all the men had stood up someone as tall as 6ft 3ins, the height of the appellant, would have taken that person out of the reckoning. After a pause she said that it would. When she was asked about the clothing, she said that this was secondary … “the features of the person were first”. When pressed that the “sweatshirt was important”, she observed that when she was asked to give a description at the time it was. She confirmed the contents of her witness statement and the detailed description of the sweatshirt style jumper being worn by the assailant. It was put to her that “nobody wearing a plain dark style top could have been that person could it? It was definitely a person wearing a striped top?”, and she answered “yes”. 25. The cross-examination then turned to the accent of the person using obscenities, she confirmed that she had the impression that the person had a local accent, adding “there was nothing completely distinctive that would say that he came from another part at the time”. She would exclude a “strong Scouse accent, indeed any strong accent. Accents tend to merge”. 26. Counsel appreciated that there was not much point in pursuing the accent issue any further, but the witness agreed with him that she was far more definite about height and striped clothing. From the transcript it looked as though the cross-examination was at an end, but the judge invited counsel to make his position in relation to the identification clear. Mrs Ellis was then asked if she may have made a mistake, and she agreed that if the jumper worn by the assailant was a plain jumper, then she had. When it was put to her that she was trying to cling to the fact that she was right, she said “no, I’m just … it’s just what the person that I saw, the features ..” her evidence ended “no, the person that I picked out was the person that I thought all along but I really wanted to make 100% sure”. 27. There was no further cross-examination, and no reference was made to M8. Looking at the matter objectively, counsel had made progress in relation to the recollection of the witness in relation to height, and the description of the assailant’s sweatshirt, as given and adhered to by her, was at odds with the top clothing shown on the photographs taken of Cole in Healds shortly before the attack. The correctness of Mrs Ellis’ identification was crucial to the appellant’s conviction, and we shall return to it. As we indicated at the outset of the judgment, Mr Blaxland argued not only that the contents of M8 should have been introduced at the trial, but that Mrs Ellis should not have been invited to view the identification parade at all, a submission reinforced by his contention that the contents of the interviews which had taken place with Kirk before the identification parade in which he admitted that he was the man described by Mrs Ellis, should have been disclosed. The Kirk interviews 28. As will be appreciated, the contents of these interviews were not admissible as evidence in the trial of Cole. However their contents have been raised as a critical element in support of the appeal, and they therefore need close examination. 29. Kirk was arrested just after mid-day on 15 February at 4.19. he denied being involved in the incident. He was close by, in his girlfriend’s sisters flat in St Peters Close, when he heard a commotion outside at about 5.45. He saw a scuffle going on in St Peter’s Street and went out to watch for a few moments and then left. He denied knowing Handyside, or Dookie. He had arrived at his girlfriend’s sisters flat at about half past 4, 5 o’clock, and stayed there until about 8 o’clock. 30. At just after 3 o’clock in the afternoon on 16 February, Mellor was interviewed for a third time, and he gave a new account of how he and Kirk, together with Handyside and Dookie were all attacked by about four people in St Peters Street, two attacked Dookie, and two attacked Handyside, and he crossed over to the other side of the road, Kirk with him. 31. Before Kirk’s second interview the police disclosed the statement from Handyside in which he described that he was attacked by two men, who he did not know, one with a baseball bat, and the other with a knife, and having been struck with the bat and stabbed with the knife he ran off to the Variety, where the man with the knife came after him and confronted him. Neither assailant was Kirk or Mellor. At the start of this interview Kirk indicated that he wished to change a few things, after his solicitor had disclosed Handyside’s statement which had exonerated him. 32. Faced with this account Kirk admitted that he knew Handyside and Dookie, and that he was with them in St Peters Street when they were all attacked by a group of unknown men. In short, he was echoing the same account given to the police a little earlier by Mellor. 33. He admitted knowing Handyside, not well, but by name. A long narrative account was then given. The four men were walking together in St Peters Street when all of a sudden “these men come from nowhere. I can’t remember they just come from nowhere. All I can remember is John Dookie saying “what the fuck” and grabbing hold of me. I don’t know, I can’t remember if he hit me or all. I remember falling to the ground and then seeing these men all over John Dookie. I don’t remember seeing Stephen Mellor or Jamie Handyside at the time. … Then I were on the floor … all I saw were John Dookie running off and then I got up and run, I just got up and run … down Moor Lane through the alleyway … to Tammy’s, Becky’s sister and just stayed there.” He explained that he denied having been at the scene at the earlier interview because he didn’t want to get into trouble with the police. 34. His next account involved the same attack by this unknown group of men in which, after falling down on the floor, he just remembered “John Dookie running off and I got up and then someone chasing Jamie Handyside, and then he ran back to Tammy’s”. Effectively it was Dookie who had jumped on him. He was asked if he had seen Handyside or what happened to him. He explained that he had seen Handyside with blood on his head “a little bit”, but it all happened dead fast and he got up and ran away. 35. He recalled seeing Handyside going into the pub but he ran in the opposite direction. He was asked “Why didn’t you go in the pub with Handyside?”, and he replied that he didn’t know, but he thought Handyside knew who their assailants were. He was asked further questions directed to the question whether he had been anywhere near the Variety, and denied that he had, because he would not go into the place when Handyside had gone in there. 36. At 16.54, what was described as the third interview took place. In reality this was a continuation of the previous interview. His account was that he saw Dookie being struck “a couple of whacks”, and he ran away in the opposite direction towards Moor Lane, that is away from the Variety. He explained his account in the first interview of not knowing Handyside or Dookie on the basis that he didn’t want to get done for affray or anything like that. Now things had changed “now murder’s gone on”, he had got “to say everything”. “I’ve seen a murder so I’m scared”. 37. There was then a break. A new interview began at 20.25. By now the police had interviewed the woman, Tammy. Her account undermined Kirk’s story. Nevertheless, Kirk adhered to his story that all he saw was John Dookie running off, after which he got up and ran away towards Moor Lane, through the alley, to Tammy’s flat. He stayed there until 8 o’clock. After a series of questions this developed to him running away towards the Variety where he stopped on that corner and then ran way back down the alley towards Tammy’s home. When he went towards the Variety Handyside was on the corner and he saw him go into the Variety. He just ran away to Tammy’s. He didn’t go into the Variety because he was scared. In short, he continued to deny any involvement with Handyside at all. 38. On Monday 17 February, the witness statement was taken from Mrs Ellis. Thereafter Kirk was interviewed again. It was put to him that the evidence from Tammy and Becky showed that he had not called at Tammy’s flat until just before 8 o’clock. His response was that she was lying. The police made plain to him that they did not believe his story. They then read out the statement from Mrs Ellis in full. After doing so the officer said, “that to me is you”, then re-narrated Mrs Ellis’ description of the man chasing Handyside, and asked, “is that you?” Kirk’s answer was that he had run to the corner, it might have looked as if he was chasing Handyside and he did shout out something like “stitch up bastard” at him. He did not remember seeing any woman. He didn’t know where to go so he ran to Tammy’s. The interviewing officer persisted, ending “now that person she is describing is you, isn’t it?” To which Kirk responded “yes”. The description she had given might have fitted Kirk as the man who had used the knife on Handyside. The response did not carry with it any admission that Kirk was responsible for the attack on Handyside because shortly afterwards he made it clear that although he had followed Handyside, and shouted at him, he had stopped at the doorstep and looked around, and that as he did not know where to go, he ran away back down St Peters Street to Tammy’s. It is not accurate to describe what he said as an admission (albeit very late) that he was responsible for attacking Handyside with a knife at the Variety, or indeed attacking or participating in any attack at all on him. 39. In all these interviews Kirk never once mentioned that he had been with Cole just a few minutes before the attack happened. Indeed during his first interview he denied knowing Cole at all, even when the video stills taken at Healds were shown to him. The Cole interviews 40. We must now turn to the appellant Cole himself. After his arrest in Liverpool earlier, the first interview took place at 20.13 on the evening of 18 February. His solicitor was present. 41. He was asked if he had any connections with Preston and said that he had none really, but after further questions, he said that he did know Kirk, having met him for the first time in May or June that year. He had however never been over to Preston to see Kirk. 42. He was asked the direct question, “were you in Preston on 14 February?” and he replied “No”. He was reminded that this was Valentine’s night, and repeated “No”. He was in Liverpool for the whole day and the evening. He was asked what colour of top he had on, but “I don’t know to be honest with you”. After further questioning the interviewer returned to the direct point and put it to Cole that the police had been told that he was in Preston on Valentine’s Day. The response was “no. I know exactly where I was on that day”. There was “no way” he was in Preston on the 14 th , at any time. 43. He did not own a mobile phone or a pager. He was certain of that. Again, it was suggested that the police believed he was in Preston, but he said that it was quite categoric that he was not. 44. Kirk might have his telephone number, he didn’t know, but he did not know Kirk’s number and he didn’t know, but he thought Kirk might have a mobile phone and he might have that number. If he had telephoned Kirk the last time was about 3 weeks earlier, not on the 13 th or 14 th February. He didn’t think he had. He adamantly repeated that on Valentine’s Day he was at his mother’s for tea. 45. Cole was interviewed again on the following morning at 11.33. He indicated that he was willing to stand on an identification parade. At the beginning he was happy “sticking with the stance” that he was not in Preston on the relevant day. By then a search had taken place at his mother’s address. 46. In relation to any photographs, he asserted that he did not know any girls in Preston and did not associate with any of them. He was shown a personal organiser, and denied that it was his. It was his sister’s property. He repeated that he was not in Preston at the time, he did know Kirk, but not Mellor. Kirk was just a friend. He had met him about four or five times. He might phone him every two or three days. He repeatedly asserted that he had not been in Preston on the date. It was put to him that he had been to Kirk’s mother’s home, and that her description closely fitted him, but his denials continued. 47. Shortly after the interview ended, at 12.20 on 19 February, the appellant asked for a further interview to reclarify an answer he’d given in relation to questions about Tammy. He said that he had seen Tammy in Preston and got talking to her. He just wanted to say for the tape that he knew her and that basically was it. He knew Tammy knew Kirk but he didn’t meet her through Kirk. He had been to her house about two or three times. He had never slept there. He knew that her sister was Kirk’s girlfriend. 48. At 18.05 on 19 February a further interview took place. Before this interview began the CCTV images which showed Cole in Healds shop in Preston on the 14 th were disclosed. His account changed. His solicitor said that the appellant agreed to co-operate in this further interview following discussions that he (the solicitor) had had with the police and information they provided. 49. Cole now admitted that he had been in Preston on 14 February. He went down to see Tammy. He drove over to see her at about 5 o’clock. He knocked, she wasn’t in, and so he walked around and saw Kirk. He went into Healds. At the shops, he was with Kirk for about half an hour, and then returned to Tammy. There was a group of lads walking down the street. He followed some 10-5 yards behind them, when all hell broke loose. He immediately left. He left Preston because he wanted nothing whatever to do with the trouble. 50. Following his indication that he would be willing to stand on identification parades, he was told they were being arranged. 51. The next interview began at 18.45. By then he had been identified on the parade by Mrs Ellis, and his solicitor had been supplied with her statement. Cole responded that he had been in Preston, as he had indicated in his last interview and that was his account. Cole was asked about the sweatshirt he was wearing on the particular evening. It had not been found. It must be, he said, at either his mum’s house or his girlfriend’s house. The sweatshirt was missing. He had taken it home and probably took it off at his mother’s. He had no reason to get rid of it. He made clear that he did not have any sweater of the colours and the description given by Mrs Ellis, and he had not discarded the jumper he had been wearing when the photographs were taken at Healds. He said that he had not seen Kirk chasing Handyside, but whoever it was, it was not him. 52. The final interview with the appellant took place at 14.07 on 21 February. The only relevant significance of this interview, apart from the appellant denying any involvement, is that the questioning officers made it clear that it was important that he should find the jumper or sweater he was wearing when he was photographed at Healds. Trial 53. Before the trial began notice of alibi was given by Cole that, at the relevant time, he was close by the steps at the junction of Moor Lane and St Peters Street, Preston, to the left of a row of shops with flats above. As the scene and locations map shows, this is very close to the scene of the attack. 54. In his evidence, Handyside remained adamant that the man who had stabbed him was not Kirk. 55. In his evidence Kirk said that he had no idea that Cole was coming to Preston on 14 February. The telephone calls were social. They just bumped into each other outside Healds store when he was with Mellor at about half past five and Cole came around the corner. He asked him what he was doing there and Cole said that he had been to Tammy’s. Shortly afterwards Cole left them and the fight began. He saw Handyside fighting and scuffling and then running away. He decided to chase Handyside because he thought the attack was Handyside’s doing. He nearly had hold of him, but Handyside escaped and Kirk shouted “stitch up bastard”. He saw a woman with a shopping bag and looked into her face, and then jogged back down Moor Lane. The woman had seen him, Kirk, at the door of the Variety not Cole. It was an essential part of his defence that he had not used any form of violence, and in particular had not used a knife to attack either Dookie or Handyside. 56. Cole himself elected not to give evidence. 57. Mellor gave evidence. In it he described Handyside being attacked “and then Kirk near the corner of the Variety”. 58. Another co-defendant, Bosanko gave evidence that he had seen Cole “by the stairs near the shops looking down St Peters Street at the fighting”, something he had omitted to mention when he was being interviewed by the police. The submission of “No case to answer” 59. At the close of the prosecution case it was submitted on the appellant’s behalf that there was no case to answer. The foundation for the submission was that the quality of the identifying evidence was so flawed that the case should be withdrawn from the jury. There were discrepancies in the description given by Mrs Ellis, in particular in relation to height. Cole is 6’ 3” whereas Mrs Ellis said that the height was 5’ 10” going onto 6’. If he was still wearing the top seen in the video then Mrs Ellis herself accepted that she would have been mistaken in her identification because of the striped top worn by the man who attacked Handyside. Her identification at the parade was hesitant and filled with reservations. The Crown’s response was that the case went well beyond Mrs Ellis’ identification. The record of the timing of telephone calls and communications between Cole and Kirk and Mellor supported the contention that Cole was recruited to be a member of the Kirk/Mellor gang, and the lies told by Cole in interview were highly material. The course of these interviews has been fully narrated in the judgment, and particular attention was focussed on the denials that Cole had ever been in Preston at all, and his further denials of telephone communication or the means of telephone communication were relevant. 60. The judge concluded that the submission amounted to no more than “there are telling points to be made for Cole to the jury … It would be quite wrong at this stage to withdraw the case … In my view, a crucial part of Mrs Ellis’ evidence was that the clothing was secondary and the features were her first consideration. She had a face-to-face confrontation with this man, albeit very short, but in good lighting and her evidence is, in my judgment, classically the sort of evidence that a jury should decide upon. In my view also, (counsel for the prosecution) is right when he says I should look at the whole spectrum of the prosecution case against Cole in deciding on this submission. I have done so and there is plainly a case to answer”. The summing up 61. No criticism has or could be mounted against the judge’s direction about the caution required in identification cases. He directed the jury to pay particular attention to the question whether there were any material discrepancies or differences between the description of the man given by Mrs Ellis to the police and in her evidence, as against the actual appearance of Cole. All the relevant matters relied on by leading counsel on behalf of Cole were fairly highlighted before the jury. The judge ended this part of his directions by referring to the lies given by Cole in his interviews, and adding “lies on their own cannot put him by the door of the Variety public house. If you regard that identification as valueless and unsafe, ignore the lies and find Cole not guilty”. In effect this direction was given on a second occasion. Cole should be found not guilty if the jury were “to decide that the identification evidence is so flawed that it cannot be relied on at all, neither lies nor failure to give evidence can supply … the deficiency”. There was debate about the precise effect of these directions. At the end of the summing up the judge reminded the jury of the arguments deployed on behalf of Cole. Again, it had never been suggested that they were either incomplete or unfair. 62. In due course Cole was convicted on both counts by a unanimous verdict. The first application for leave to appeal 63. Leading counsel advised that an application for leave to appeal should be launched on a number of what he described as “fundamental weaknesses” inherent in the identification made by Mrs Ellis. The thrust of the application was that the judge should have upheld the submission of no case to answer. 64. Leave to appeal was refused by the single judge. The application was renewed to the full court. The argument advanced on behalf of the appellant was that the trial judge was wrong to reject the submission that there was no case to answer, a submission based on the contention that the evidence of Mrs Ellis was so unreliable that it should not have been left to the jury. 65. In the judgment of the court delivered by Rose LJ, the Vice President, the criticisms made of the evidence of Mrs Ellis were analysed in detail. The criticisms were underpinned by the contention that the individual identified by Mrs Ellis was in fact Kirk. The submission was rejected. The judge was “entirely right” to leave the matter to the jury. The reference by the CCRC and this appeal 66. M8 provides evidence which was not introduced at trial. 67. The case now advanced on behalf of the appellant begins first by suggesting that there were no sufficient grounds to suspect that the appellant was the person described by Mrs Ellis, and so she should not have been invited to view the identification parade line up. Her first description should have been disclosed to the solicitor for the defendant before the parade took place, and so should the admission made by Kirk in interview that he was the person described by Mrs Ellis after the police had suggested to Kirk that it was him. If all that material had been disclosed, objection would have been taken to the identification parade. No proper basis for holding the parade had been established. Any identification of the appellant would be unsafe. Attention was drawn to the decision of the House of Lords in Forbes [2001] 1 Cr. App. R 31 with particular focus on the observations of Lord Bingham about the relevant Code of Practice, and its salutary reminder of the dangers and risks of wrongful convictions based on eye witness identification evidence. 68. Two further submissions were, first, that the trial judge and the Court of Appeal were wrong to conclude that lies told by the appellant to the police and the other circumstantial evidence was capable of corroborating the identification by Mrs Ellis, and, second, the judge failed to direct the jury that they could not draw any adverse inference against the appellant arising from his failure to give evidence. 69. In summary therefore the grounds of appeal are that (a) Mrs Ellis should not have been invited to view an identification parade which included the appellant (b) There was non disclosure of M8 before the parade, and the content of the admissions made by Kirk, together with the observations of the police during the interviews before the parade took place (c) M8 was not introduced at trial (d) There was no corroboration of Mrs Ellis’ identification (e) The adverse inference direction was flawed. 70. To the extent that these grounds of appeal were not covered by the CCRC in the Reference, leave to argue with them was sought. These grounds are sufficient to cover the matters raised by the CCRC, and we thought it appropriate to examine all the grounds relied on by Mr Blaxland. None the less it is clear from the prolonged investigation into all the circumstances surrounding M8 that without M8 this conviction would not have been referred to this court. 71. The way in which the judge directed the jury about the approach they should take to the evidence of Mrs Ellis, as understood by the CCRC, formed the crucial part of its reasoning in making the Reference. The judge’s directions are set out at paragraph 61 above. Although we agree with the CCRC that the circumstantial evidence, or the evidence supporting the correctness of Mrs Ellis’ identification, standing on its own, would not have been sufficient to justify the conviction, as the Commission acknowledges, this evidence undoubtedly posed what they correctly describe as “difficulties” for the appellant at trial. The reality is that the reliability of the identification made by Mrs Ellis derived powerful support from the circumstantial evidence. If the judge was directing the jury that they should approach her identification in a separate compartment to the rest of the evidence, then the direction was wrong and over favourable to the appellant. 72. In our judgment whatever language the judge may have used to underline the importance of her evidence to the verdict, to the extent that he may have said or implied that her identification could or should be compartmentalised, and the decision about its accuracy made without reference to extraneous circumstantial evidence which supported or undermined confidence in its reliability, the jury would have been misdirected. What is more, if the judge was directing the jury in this way, then it is not to the advantage of the appellant that, despite the full and careful cautionary warnings, the jury was prepared to convict him. They plainly did not regard the identification as valueless or flawed. However, to the extent that it was open to legitimate criticism, as it was, then the jury was entitled to consider the remaining evidence and set it in the balance against those criticisms, and form a view based on the whole of the evidence. Unless the judge was attempting to direct the jury in the over favourable way to the defendant which we have outlined, what he was actually addressing was the alternative way in which the prosecution was advancing the case against the appellant, which was that even if Mrs Ellis was to be ignored altogether, the remaining evidence, put into the undisputed context of the events at and around the scene, would be sufficient on their own to justify a conviction. In our view the judge was right to direct the jury that they should not convict on this alternative basis. 73. In reality the correctness of the identification was provided with powerful support independent of Mrs Ellis. In a properly conducted identity parade, having focussed specifically on the face of Handyside’s assailant, she identified an individual who undoubtedly was present in the immediate vicinity of the fight and who, just a few minutes before the fight began, had been in close company with the major protagonists on one side who were guilty of criminal involvement in the fatal attack on Dookie and the attack on Handyside. The level of telephone and pager communication between the appellant and Kirk (and Mellor) on 13 and 14 February, reinforced the contention that his presence at just this place, at just this time, when yet another confrontation in the escalating violence between two rival drug dealing pairs was about to take place was not simply coincidental. Moreover, notwithstanding that his visit to Preston had, if he was telling the truth, a wholly innocent explanation, Cole had lied repeatedly, beginning by denying that he was anywhere near Preston itself, and then, as each lie was demonstrated, taking refuge in a new lie, and lying too, about the fact of his repeated communications with Kirk on the crucial dates. 74. Neither he nor anyone else was able to produce to the jury, or offer an explanation of its disappearance, of the sweater or jumper he was wearing when he was videoed in Healds. The garment was never found, and its disappearance has never been explained. If Cole was not directly involved there was surely nothing whatever to conceal or destroy or lose apparently so quickly after the incident. As to the suggestion that the man identified by Mrs Ellis was not Cole but Kirk, we note that her description of Handyside’s attacker was said by interviewing police officers to fit him, and that he eventually went along with their assertions, but not before he had given wholly different descriptions of his movements that evening throughout various interviews. The reality is that if Kirk was attacking Dookie at just the same time as Handyside was making away from the scene (and there was ample evidence to support Handyside’s description of Kirk attacking Dookie), Kirk could not have been the man who chased Handyside to the Variety. Handyside knew perfectly well who Kirk was, and that he was a rival, if not by now, an enemy. He had ample opportunity to identify Kirk as the assailant with the knife. Mr Blaxland was unable to provide any possible explanation why, if the assailant was Kirk, Handyside should fail to incriminate him, but to the contrary, insist that Kirk was not his assailant. There is no conceivable reason why he should have denied that he was. On the other hand by, eventually, stating that he had followed Handyside, the advantage to Kirk was that he was putting distance between himself and the man who wielded the knife on Dookie. 75. By the time the identification parade took place the police knew that Mrs Ellis asserted that she had been at pains to observe the face of Handyside’s assailant. They knew that he was with Kirk and Mellor very close to the scene, very close to the time of the attack. They knew that Handyside had been attacked by someone who was a stranger to him. And finally they knew that rather than offer an innocent explanation for his presence at or near the scene, Cole had told a series of lies about his movements at the crucial times. They knew that in purported support of his lying alibis, Cole had indicated a willingness to participate in ID parades. 76. At the relevant date the identification process contained in Code D of the Codes of Practice under the Police and Criminal Evidence Act 1984 . D2.3 provided not only that an identification parade “shall” be held if the suspect consents where an identification is disputed, but one may also be held if the officer in charge of the investigation considers it useful, and the suspect consents. In short, in some circumstances a parade must be held, and in others, in the course of a judgment to be made by the officer in charge, that a parade would be “useful”, one may be arranged. 77. In our judgment the proper investigation of a fight in the street with fatal consequences to one protagonist, and serious injury to another, witnessed by a number of people who have given different descriptions of the assailants would normally make a series of identification parades not merely “useful”, but probably essential. In our view in this particular case it would have been remiss of the investigating officer not to have made the appropriate arrangements. 78. We should perhaps add this, on the basis of the decision in the House of Lords in Forbes itself, given that the arrest of the appellant was justified, (and the contrary has not been suggested), that Mrs Ellis indicated her ability to identify Handyside’s assailant, and that the appellant had strongly denied any involvement in that incident, the police would have been obliged to conduct a parade. 79. None of these considerations undermines our view that it was a clear breach of Code D that the solicitor acting for the defendant was not informed of the contents of M8 before the identification parade involving Mrs Ellis took place. 80. That leads, first, to the question whether an application might have been made under s.78 of PACE to exclude the evidence based on the identification parade for breach of the Code. Standing on its own, such an application would have failed. That, however, leads to the further question, whether if the additional information which became available to the appellant’s solicitor after the parade had been available before it, (that is, M8, and Kirk’s eventual admission), he would, as he now says, have advised his client not to participate. We imply no criticism whatever of the solicitor, who was reflecting many years after the event on what advice he would have given to his client in relation to an identification parade on which, as it turned out, he was positively identified by a witness, and later convicted. Before that identification parade took place, he had clearly been alert to all the issues arising from the information then available, including descriptions as to the clothing worn by the suspect, and the potential problems for his client if the members of the parade were standing rather than sitting down. What however is clear from his record is that the approach of the police to the problem was that if the appellant did not consent to the identity parade some “other form” of identification parade would be organised in any event. It would, we believe, have been quite unrealistic for the defendant to have been advised to decline to consent to participate in a parade involving Mrs Ellis, but to consent, having indicated that he was willing to attend a parade, to a parade with other potential witnesses. Moreover, if the consent was withdrawn altogether, the dangers consequent on the defendant declining to participate in less well organised and properly protective methods of enabling an identification process to occur would have been stark. Indeed the risk that the defendant might have been identified by another witness in an identification procedure conducted in an environment less protective for the defendant was not insignificant. These are not the sort of risks which a wise solicitor would advise his client to take. Faced with the choice between identification parades carried out in accordance with the processes designed to achieve the greatest possible protection for a defendant, and those where the level of protection is inevitably reduced, such as “group-identification” or “confrontation” we very strongly doubt whether the appellant, who had already indicated a willingness to go on to an identification parade, would have been advised to withdraw his consent. 81. In any event, however, all the relevant parades were properly conducted. We do not think that the result of the parade some 15 years later should now be excluded on the basis of the possibility that, if different information had been given to the defendant’s solicitor, this might have led to different advice being given to the client, and that in turn might have resulted in a decision by the client not to consent to the parade. 82. We must now address the omission at trial of any reference to the contents of M8. In view of the analysis at paragraphs 15 and 16, the appeal has proceeded on the basis that the contents of M8 were properly disclosed by the prosecution well in advance of the trial. 83. We have reflected carefully that when he first saw M8 some years after the trial, leading counsel then under the impression that he had not seen the document, said that the likelihood is that he would have deployed the contents in cross-examination, whereas now that he has remembered having seen the document he recollects the strategic forensic decision not to deploy it. 84. In reaching our own conclusion we have reconsidered the entire transcript of the cross-examination by counsel of Mrs Ellis. The transcript suggests that he believed that useful progress had been made in support of the defendant’s case that the identification was not sufficiently reliable. Moreover, it is also clear that in her evidence the focus of the witness’ telephoned report as recorded in M8, and indeed her written statement taken on 17 February, on her close facial proximity to the face of the assailant, and her deliberate concentration on his face with a view to identifying him at some future date, had not fully emerged, and to the extent that it had emerged, would have been given considerable additional emphasis. In essence the forensic decision was whether to risk undermining the progress that had been made by enabling the Crown to underline that this woman had telephoned the police on the day after the incident (presumably after the reports of Dookie’s death had become public) and that she had deliberately concentrated on the face of the assailant who she identified shortly afterwards. In other words, descriptions and inconsistencies about some of the other details could be brushed aside by the prosecution as inevitable in view of the way that the witness had concentrated on remembering the face of the assailant. 85. We can only address this issue on the basis of our collective experience. In view of the way in which the cross-examination had proceeded there were, in our view, sound tactical reasons for leaving M8 to one side. That said, we also recognise that different advocates might have taken a different view. However, in any event, making the decision years later, on paper, cannot possibly replicate the difficulties involved in the strategic decision about the conduct of a case in which so much turned on the cross-examination of the witness. Certainly, the decision at this trial was not unreasonable. There is a sufficient explanation for the decision not to deploy the contents of M8 in cross-examination: in essence, the overall effect might have been to diminish the progress which was thought to have been made. 86. Tempting as it may be, we cannot leave M8 there. In our judgment the interests of justice require us to admit it in evidence. We must reflect on its contents as a whole, and examine whether, in the light of all the evidence at trial, reservations about the correctness of Mrs Ellis’ identification of the appellant are created, and the safety of the conviction undermined. In doing so we have reminded ourselves of the well documented dangers of a miscarriage of justice where a conviction depends on eye witness identification. If the contents of M8 had been used some further inconsistencies in Mrs Ellis’ description would have emerged, but there would have been a correspondingly increased concentration on what she, at the time, was actually focussing her attention. The reality is that the correctness of her identification of the appellant was given very powerful support by the remaining evidence. Without the benefit of the contents of M8, the jury did not entertain any reservations about it, and having examined the contents of M8, we do not think that this conviction is unsafe. 87. The criticism of the judge’s direction in relation to adverse inferences from the defendant’s decision not to give evidence at trial was not at the forefront of Mr Blaxland’s submissions. The direction was amply justified, and even in the light of subsequent decisions of this court, the way in which the jury was directed was not inappropriate or unfair. 88. Accordingly, although the case was rightly referred to this court by the CCRC, the appeal against conviction will be dismissed.

```yaml citation: '[2013] EWCA Crim 1149' date: '2013-07-05' judges: - MR JUSTICE MACKAY - 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} ======

Neutral Citation Number: [2012] EWCA Crim 2889 Case No: 201202290 B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 13th December 2012 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE GLOBE MR JUSTICE LEGGATT - - - - - - - - - - - - - R E G I N A v LIAM AXWORTHY - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7422 6138 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr I Whitehurst appeared on behalf of the Appellant Miss A McCracken (Solicitor Advocate) appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GLOBE: On 9th March 2012, at Liverpool Crown Court before His Honour Judge Boulton, the appellant, having previously been sentenced to a total of 12 months' imprisonment for offences of theft and attempting to pervert the course of justice, was made subject to a confiscation order in the sum of £22,010 and a compensation order in the sum of £7,718 in favour of Royal Sun Alliance Motability. The appellant appeals the financial orders with the leave of the single judge. 2. On 30th July 2010 the appellant reported a burglary at his home in which he claimed that a Motability Land Rover Discovery vehicle, leased to his mother, had been stolen. Royal Sun Alliance had concerns about the legitimacy of the claim. Their investigations established that the appellant had taken the vehicle to Ibiza, where it was found in and recovered from an underground garage near to the appellant's flat. 3. At the confiscation hearing the appellant argued that the owners had recovered the vehicle and it would be double recovery if a confiscation order was made. 4. The respondent argued that recovery of the stolen property was not to be taken into account, the appellant's benefit was the value of the stolen vehicle, which at the material time was £22,010, and the appellant had sufficient realisable assets to pay that sum. 5. The judge agreed with the respondent. In doing so, he stated that he was applying the principles derived from the cases of Wilkes [2003] EWCA Crim 848 and Rose [2008] EWCA Crim 239 . He specifically referred to paragraph 88 in Rose , which he summarised as stating "the fact that the stolen property has been restored to its true owner is irrelevant". The judge was satisfied that the appellant had sufficient realisable assets to pay the benefit figure of £22,010 and he therefore made a confiscation order in that sum. The judge checked with the respondent that what were referred to as "the repatriation costs" were £7,718. He received confirmation that that was the figure that was being claimed at that time. He ruled that the appellant's assets were sufficiently large to pay a compensation order in that sum. In addition to the confiscation order, he made a separate compensation order for the £7,718. 6. The grounds of appeal, dated 4th April 2012, and the respondent's response, dated 26th June 2012, both pre-date the Supreme Court's recent judgment in the case of Waya [2012] UKSC 51 dated 14th November 2012. In a document headed "Respondent's consolidated submissions", dated 11th December 2012, the respondent now concedes that the original confiscation order should be quashed, but invites the court to increase the compensation order. In consolidated submissions by the appellant, in a document dated 9th December 2012, Mr Whitehurst concludes that, subject to the matters that need clarifying, the compensation of £7,718 should stand alone, and he too confirmed that as a result of the case of Waya , the confiscation order should be quashed. 7. The case of Waya relates to the impact of the Human Rights Act 1988 on the making of post-conviction confiscation orders under the Proceeds of Crime Act 2002 . Principles to be derived from the judgment relevant to this case are as follows. 8. There are three stages to the making of a confiscation order. The first is the identification of the benefit obtained by a defendant - the relevant sections are section 6(4) and sections 8 and 76. The second is the valuation of the benefit - the relevant sections are sections 79 and 80. The third is the valuation as at the confiscation day of all the defendant's realisable assets - the relevant section is section 9. That value sets a cap on the recoverable amount of the confiscation order to be made under section 7. 9. The effect of Article 1 of the First Protocol to the European Convention is that there must be a reasonable relationship of proportionality between the means employed by the state and the deprivation of property as a form of penalty and the legitimate aim which is sought to be realised by the deprivation. The legitimate aim and real essence of the Proceeds of Crime Act is to remove from criminals the pecuniary proceeds of their crime. That is confirmed in the explanatory notes to the Act , which states: "The purpose of confiscation proceedings is to recover the financial benefit that the offender has obtained from his criminal conduct." A confiscation order must therefore bear a proportionate relationship to this purpose. 10. Section 6(5) sets out the final stage of the process of assessment of a confiscation order. It states: "If the court decides under subsection (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 16 of the judgment in Waya goes on to state: "It is plainly possible to read paragraph (b) as subject to the qualification: 'except insofar as such an order would be disproportionate and thus a breach of Article 1, Protocol 1.'" 11. The appellant's case was not a criminal lifestyle case. The judge was therefore not concerned with general criminal conduct and the application of assumptions. He was solely concerned with the applicant's particular conduct arising from the commission of his offences. By section 6(4) and section 76, the appellant's benefit was the vehicle he acquired. By sections 79 and 80, the value of that benefit was £22,010. By section 9, the applicant's realisable assets were substantially in excess of that figure. By section 7, the recoverable amount was £22,010. At that stage of the process, and applying the principles explained in Waya , the issue that next arose was whether, in accordance with section 6(5), the making of a confiscation order in the sum of £22,010 would be disproportionate and be in breach of Article 1 Protocol 1 in circumstances where the Royal Sun Alliance had recovered the vehicle. 12. A like situation was considered in paragraph 29 of the Waya judgment, where it was stated that where the item has been wholly restored to the loser, a confiscation order that requires a defendant to pay the same sum again does not achieve the object of the legislation of removing from the defendant his proceeds of crime, it simply amounts to a further pecuniary benefit and would be disproportionate. 13. The two cases referred to by Judge Bolton are also referred to in Waya . Little need be said about the case of Wilkes because the confiscation order was arrived at after considering that defendant's general criminal conduct and not his particular criminal conduct. There is no need in this judgment to deal with the different considerations that apply to general criminal conduct cases. 14. In relation to Rose , the following was said at paragraph 30: "To the extent that Rose held at para 88 that the recovery and restoration intact of the stolen property was always irrelevant to the making of a confiscation order, that part of the decision should not be followed." 15. In the circumstances of this case the making of a confiscation order of £22,010 was disproportionate. The respondent is right to make that concession. 16. Insofar as the respondent seeks in the consolidated submissions of 11th December, and orally before us in submissions this morning, to submit that an increase in the compensation order to a sum of £17,096 is appropriate, that application must fail. There are a number of possible reasons. First, it is based on material that was not before the judge. We stress that that is not the fault of the respondent, still less Miss McCracken, who has appeared below and before us today. Numerous requests were made prior to the confiscation hearing for details of the losses without any adequate response being received in time for the hearing. It is now too late to produce new figures this late in the day. In any event, the new figures are not the easiest to understand, and have only recently been supplied to Mr Whitehurst. In the course of his consolidated submissions, he raises a number of queries which might have needed close scrutiny in the context of a fact-finding investigation such as one that would have occurred before Judge Boulton. Secondly, the compensation order was not one that was to be paid out of the confiscation order. It was a stand-alone compensation order with its own enforcement processes. Increasing the amount of the order would require us to increase a completely separate part of the sentence, which would arguably amount to the appellant being more severely dealt with than below, which would be a contravention of section 11 of the Criminal Appeal Act. Thirdly, our understanding is that the real substance of this appeal and the matter which was complained of was the confiscation order, rather than the compensation order in itself, and there is an argument that we are not actually seised of the compensation aspect of the order. 17. For all of those reasons, whether individually or cumulatively looked at, we refuse the application to increase the compensation order. The appeal succeeds in relation to the confiscation order, which order will be quashed, together with the default term attached to it.

```yaml citation: '[2012] EWCA Crim 2889' date: '2012-12-13' judges: - LADY JUSTICE RAFFERTY DBE - MR JUSTICE GLOBE - 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} ======

Neutral Citation Number: [2010] EWCA Crim 2972 Case No: 2009/06420/B3 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT IPSWICH HIS HONOUR JUDGE CLEGG AND A JURY T20097161 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/12/2010 Before : LORD JUSTICE THOMAS MR JUSTICE OPENSHAW and MR JUSTICE SPENCER - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Olusola Dayo Akinrele Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr A Rawley QC and Mr C Burton for the Appellant Miss Y Coen QC and Mr S Thomas for the Respondent Hearing dates : 5, 6 & 7 October 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas : Introduction 1. On 7 November 2006, Leeya was born at Peterborough District Hospital to Kelly Inman and the appellant, her partner. She was their second child, their first child having been born on 2 July 2005. At 16:12 on 18 December 2006, Kelly Inman made a 999 call about Leeya who had become floppy and had difficulty in breathing. An ambulance team attended and she was taken to the Peterborough District Hospital. Later that night she was transferred to Addenbrooke’s Hospital in Cambridge for intensive paediatric care. She never recovered and died on 30 December 2006. 2. The appellant and Kelly Inman were charged subsequently with her murder and other offences, including causing or allowing the death of a child contrary to s.5 of the Domestic Violence, Crime and Victims Act 2004 (the 2004 Act). At a third trial that took place before HHJ Clegg and a jury at the Crown Court at Ipswich, the appellant was on 5 November 2009 convicted of murder; Kelly Inman was acquitted but had earlier pleaded guilty to the offence under s.5 of the 2004 Act of allowing the death of a child. The appellant was sentenced to life imprisonment with a minimum period of 16 years less time on remand; Kelly Inman was sentenced to three years imprisonment less time on remand. 3. The appellant appeals with leave of the Single Judge. The appeal, which has been advanced before us with great determination and skill by Mr Rawley QC, may be summarised as having two principal grounds: i) The case was not properly summed up by the judge; in essence it was said that the summing up was unbalanced, favouring Kelly Inman as opposed to the appellant, that the appellant’s defence was not put properly to the jury and the medical evidence was not correctly summed up. Indeed the judge had shown the appearance of bias against the appellant throughout the proceedings. ii) The conviction was not safe as in judgments given before and after the trial before HHJ Clegg, Parker J, a judge of the Family Division of the High Court, had concluded in family proceedings that Kelly Inman was an untruthful witness who manipulated her evidence; as her evidence was central to the case against the appellant, the conviction could not be safe. The appellant also sought leave to appeal on an additional ground, namely the failure by the judge to direct the jury correctly on intent. Before examining each of the grounds in turn, it is necessary to say more of the background. Factual background (i) The events until the birth of Leeya 4. The appellant was born in August 1975 in Nigeria. He came to the UK as a student in 1997. His visa expired in 2001 and from that point onwards he was not lawfully allowed to remain in the United Kingdom; he was what is commonly known as an “overstayer”. Between September 2001 and December 2002 he had a relationship with Elaine Ellis whom Kelly Inman subsequently called as a witness in the Family Proceedings to support her allegation of violent treatment at the hands of the appellant; she also gave evidence at the criminal trial. 5. In the spring of 2004 the appellant met Kelly Inman who was 16 at the time. They immediately began a sexual relationship. He moved in to live with her at her parent’s home within a short period. In September 2004 Kelly Inman became pregnant with their first child, Carmel, who, as we have said, was born on 2 July 2005. In 2006 Kelly Inman became pregnant with Leeya and in May 2006 she and the appellant and their first child Carmel moved to live at Lapwing Drive, Whittlesey. On 10 August 2006 the appellant and Kelly Inman were charged with fraud offences and there were appearances at Peterborough Magistrates’ Court later in the year. (ii) Leeya’s short life 6. After Leeya’s birth on 7 November 2006 a midwife visited Kelly Inman and Leeya; her evidence was there were no concerns with regard to either of them. A further visit was arranged on 20 November 2006 but when the midwife attended there was no answer and the blinds were down. That midwife spoke to Kelly Inman the following day by telephone but no concerns were raised with the midwife. On 24 November 2006 a health visitor saw Kelly Inman and Leeya at Kelly Inman’s parents’ address. This was the last time Leeya was seen by a health professional before the collapse on 18 December 2006. No concerns were expressed. 7. Between that visit and her admission to hospital after her collapse on 18 December 2006, Leeya suffered multiple injuries: i) She had 22 fractures to the ribs. The fractures were bilateral and close to the spine. ii) There were a total of five metaphyseal fractures to upper and lower limbs. iii) Her nose and fingers had been bitten; the bites to the fingers had caused underlying fractures to the fingers. iv) She had a fracture to her right femur which produced swelling. v) She had a fracture to her skull. This was initially thought to have been part of a fatal injury but on the Crown’s medical evidence at trial, it occurred prior to 18 December 2006. 8. The medical evidence given at the trial by Professor Malcolm (who was ultimately called by the Crown) was that the fractures occurred between 2 and 12 December 2006; Dr Johnson put the earliest date for the metaphyseal fractures as 7 December and the rib and femur fractures at 9 December; Dr Johnson put the earliest date of the hand fractures as 14 December. During this period it was clear, on the evidence, that although Kelly Inman had charge of Leeya for most of the time, there were significant periods each day when Kelly Inman was out with the older child, Carmel. 9. There was a significant dispute on the evidence as eventually given at trial as to whether it was the appellant or Kelly Inman who was holding Leeya when she collapsed; there was recourse to the tape-recording of the 999 call to which we will return. 10. On Leeya’s admission to hospital on 18 December 2006 although a brain scan was performed, no brain injury was seen at that stage; a provisional diagnosis of sepsis was given. It was not until 19 December 2006, as a result of the concern by the ambulance men, that the fracture of the femur was discovered upon x-ray. The fractures to the hand were found on 21 December 2006, while Leeya remained in intensive care. It was the result of the discovery of the fracture to the femur that Kelly Inman and the appellant were arrested on suspicion of causing grievous bodily harm to Leeya. They were interviewed. Despite the medical care given to Leeya, she died on 30 December 2006. (iii) The period prior to first trial in February 2008 11. As a result of further medical investigations, Kelly Inman and the appellant were charged on 21 January 2007 with causing or allowing the death of a child contrary to s.5 of the 2004 Act. We were told by the Crown in the course of the appeal that this charge, as opposed to the charge of murder, was brought at this stage because, as is apparent from the initial interviews of both Kelly Inman and the appellant, each parent denied any harm being caused to Leeya. Neither sought to blame the other parent or present a picture other than each was a model, caring and loving parent. Indeed it was Kelly Inman’s position in her interview that at the time that Leeya became floppy and had difficulty breathing, she had been in the bathroom with her. The Crown therefore took the position that the evidence at that stage only justified a charge under s.5. 12. During the whole of 2007 it was the position of each, as far as the prosecution were aware, that the death was unexplained. Both parents seemed to be in a cordial relationship with each other. When a defence statement was served by Kelly Inman on 13 December 2007 the position she took was that she did not suspect any person of causing injury to Leeya. Apart from a cold sore and dry skin, she was only aware of swelling to Leeya’s right upper leg which she did not consider to be serious. It was the appellant’s position in his defence statement that he had no knowledge of any injury. 13. The cordial relations between the appellant and Kelly Inman continued into the early part of 2008; there was before the jury at trial a bundle of letters exchanged between them, including a Valentine’s Day card on 14 February 2008 which bore out an apparently strong and loving relationship between them. (iv) The first criminal trial and the events following it 14. On 20 February 2008, the first trial of the appellant and Kelly Inman commenced in Cambridge; the indictment charged them with the offence under s.5 of the 2004 Act. On the third day of the trial Kelly Inman served a new defence statement in which she said that she did not feel to have been able to tell the truth at the police interview, when asked whether the appellant had been violent to her. She said that he had been both physically and verbally aggressive towards her on a number of occasions. A preliminary medical report was served in the following week by Kelly Inman’s lawyers in which the conclusion was expressed that there was sufficient evidence for the issue of battered women’s syndrome (BWS) to be explored by full psychiatric evaluation. An application was made by Kelly Inman to adjourn the trial and that was granted. 15. Subsequently Dr Mezey, an expert in BWS, was instructed. Statements were prepared for care proceedings that had been commenced in the Family Division of the High Court; these included statements from Kelly Inman, the appellant and Kelly Inman’s parents. In June 2008 a paediatrician’s report by Dr K Ward served in the Family Division proceedings made clear that her view was that the injuries suffered by Leeya were non-accidental, that the head injury was non-accidental and the baby would have collapsed almost immediately after the head injury. At about the same time Kelly Inman mentioned to a prison officer that the appellant was holding the baby at the relevant time. 16. Whilst preparations were being made for the hearing in the Family Division of the High Court, a decision was made re-fixing the criminal trial for 2 March 2009; a fact finding hearing in the Family Division proceedings had been fixed for January 2009. 17. In October 2008 Kelly Inman served a fresh statement in the Family Division proceedings and in November a third defence statement in the criminal proceedings. Both were to the same effect in that Kelly Inman said that Leeya was with the appellant when she became floppy and that he would not pass her to her. It was her case that the appellant had told her to say, “She was with you. People won’t believe me because I’m a man.” 18. In March 2008, the Crown decided in the light of Kelly Inman’s change of position to charge both with murder; it could take advantage of provisions of s.6 of the 2004 Act under which the question of whether there was a case to answer was not to be determined until after the conclusion of all the evidence. On 31 October 2008 HH Judge Clegg formally allowed the amendment of the indictment to this effect. (v) The fact finding hearing in the High Court : the first judgment of Parker J – 27 February 2009 19. Although the appellant had asked for an adjournment of the fact finding hearing in the High Court, that hearing commenced on 12 January 2009 before Parker J. The fact finding hearing lasted some six weeks and the judgment setting out detailed factual findings was given on Friday, 27 February 2009, with the criminal trial due to begin on the following Monday, 2 March 2009. 20. Parker J found that Leeya was an unwell baby for whom no medical attention was sought. A number of deliberate injuries had been inflicted upon Leeya. Very shortly before her collapse on 18 December 2006 there was a head injury caused as a result of either shaking or head impact or both. Parker J found, however, that although both Kelly Inman and the appellant were actively aware of exactly what had happened, she could not decide which of them caused which injury. Nonetheless the judge was satisfied that Leeya was Kelly Inman’s arms at the point of collapse, but that finding did not mean she had caused the fatal head injury as the child may have been passed to her very soon after the injury had occurred. The judge was satisfied that neither parent had told her the truth about what had happened; both knew what had happened but neither would tell the judge. 21. Parker J reached those findings by concluding that Kelly Inman’s account was untrue and that she had lied in her evidence. Her reasons can be summarised: i) She rejected Kelly Inman’s evidence that she was a virgin when she met the appellant as medical records showed that she had been prescribed contraceptives and taken a pregnancy test. She rejected as concocted by Kelly Inman and her family, the assertion that the medical records might have, in error, attributed the visits to the doctor to her sister; her sister had been put up to give the evidence in an attempt to mislead the court. She concluded that Kelly Inman’s parents and her sister had been active in seeking to present a false and misleading account to the court. She was in no doubt that Kelly Inman had lied consistently and in detail about it. ii) Kelly Inman’s evidence in relation to what had happened on 18 December 2006 was untrue. The judge could not accept an innocent mother in a state of distress could possibly have had the ability to concoct or confabulate the statement that she gave in her police interview. iii) She accepted the evidence of Elaine Ellis, the appellant’s girlfriend in 2001-2 to whom we referred at paragraph 4, that the appellant had assaulted her, kicking her in the head, breaking her thumb, stabbing her with scissors, bursting her ear drum, scratching her index and middle fingers and biting her. However she did not accept that the evidence of Dr Mezey taken with that of Dr Mason (instructed by the CPS) established that Kelly Inman’s loyalty to the appellant could be explained by any violence he had inflicted on Kelly Inman. The evidence did not allow the judge to exonerate Kelly Inman for the responsibility for what had happened. Her will had not been overcome by the appellant. 22. The judge also went on to find that Kelly Inman’s parents had lied to her on a number of occasions and significantly tailored their accounts in the evidence to the court. (v) The second criminal trial 23. That judgment having been given on Friday, 27 February 2009, the criminal trial commenced the following Monday, 2 March 2009. On 3 March 2009 Kelly Inman pleaded guilty to allowing the death of Leeya contrary to s.5 of the 2004 Act, putting forward a basis of plea that was not accepted by the prosecution. The count of causing or allowing death was amended so that there was a count of causing death on which she continued to be tried and a count of allowing death to which she had pleaded guilty. The following week, on 9 March 2009, Kelly Inman served an amended defence statement in which she admitted she ought to have been aware of the significant risk of serious physical harm to Leeya by the actions of the appellant. She accepted she failed to take steps to protect Leeya. She gave an account of violent incidents in the days before the death of Leeya. She said that on 18 December, after she had been out twice, the appellant said he was going to wash Leeya’s face; she went downstairs, but the appellant shouted at her and she found Leeya in his arms in a floppy condition. After the close of the prosecution case Kelly Inman’s lawyers sought to adduce bad character evidence in relation to the appellant. In the light of this, the solicitor and junior counsel who jointly represented them decided they were professionally embarrassed. The trial had to be abandoned and was re-fixed for 1 September 2009 at Ipswich. 24. All counsel wrote to the Presiding Judge of the South Eastern Circuit asking that HH Judge Clegg remain as the trial judge “as he was uniquely well placed to conduct the re-trial. His handling of this complex and demanding case so far has won the confidence of counsel, both instructing solicitors and the defendant which is why we make this request”. HH Judge Clegg was nominated by the Presiding Judge to hear the re-trial. 25. Following a request from the appellant, a hearing took place on 10 July 2009 in which the judge considered an application by the appellant to change his legal representation for a second time. A note of the hearing was provided to us and formed the basis of a submission to us that Judge Clegg had at this stage evinced considerable unfairness in the way in which he had treated the appellant. We have read the note of the proceedings that day and can find no basis whatsoever for criticism of the judge. He was very properly investigating the reasons why it was said the appellant wished to change his representation. The judge refused the application but on a subsequent application for a transfer of legal aid to new representatives that application was granted. 26. On 31 July 2009, just over a month before the date fixed for the commencement of the trial there was a directions hearing in relation to the service of any new defence expert evidence on behalf of the appellant. The judge was given reassurance that late change in the representation would not affect the imminent trial date. (vi) The third and final criminal trial 27. It is not necessary for us to describe the course of the trial save in one respect. Assurances were given and deadlines laid down for the service of expert evidence on behalf of the appellant. On 21 September 2009 the prosecution case was concluded; Kelly Inman’s case was concluded on 24 September 2009. The appellant then gave evidence. 28. At the conclusion of his evidence the appellant’s legal team disclosed for the first time a short preliminary expert’s report from Dr Ayoub, a clinical radiologist practising in central and southern Illinois and an associate professor at South Illinois University; that report was followed closely thereafter by a report from Dr Marvin Miller, Professor of Paediatrics at Wright State University School of Medicine in Dayton, Ohio and a report by Dr Waney Squier, a Consultant and clinical lecturer at the John Radcliffe Hospital at Oxford. These sought essentially to put forward the case that Leeya’s fractures had occurred as a consequence of “temporary brittle bone disease”. The case was then adjourned to enable the prosecution to consider this evidence. Dr Squier, Dr Ayoub and Dr Miller were called, Dr Ayoub and Dr Miller giving evidence by video link. The Crown were then given permission to recall some of their medical witnesses and call further medical evidence. 29. The judge summed up over three and a half days. The jury returned verdicts of not guilty on Kelly Inman on the counts of murder and causing the death of a child and found the appellant guilty of murder. (vii) The sentencing by Judge Clegg 30. In sentencing Kelly Inman on 6 November 2009 for the offence under s.5 to which she had pleaded guilty Judge Clegg said he would sentence on the basis that all the injuries were inflicted by the appellant at a time when she was out or at hospital. After finding that she had, shortly before Leeya’s death, ample grounds for suspecting what was going on, he found that the reason that Kelly Inman did not take Leeya to the doctor was that for the two and a half years Kelly Inman was with the appellant the appellant subjected her to a regime of domestic tyranny through physical, sexual and psychological abuse; he had been very impressed by the evidence of Elaine Ellis who described being subjected to an almost identical regime. He found that Kelly Inman was in love with the appellant whom he described as a bully and had put her head in the sand, putting her own emotional needs before those of her child. He considered that she was not quite at the bottom end of the scale of criminality but fairly near it. 31. On 19 February 2010 he sentenced the appellant. He made clear he was quite satisfied that the appellant had inflicted serious injuries upon Leeya and that he was alone upstairs with Leeya when he committed the act that killed her. (viii) The second judgment of Parker J : 9 March 2010 32. Kelly Inman made an application to Parker J, in the light of the verdict and the sentencing remarks of Judge Clegg, that Parker J should re-visit the findings of fact made in her judgment given on 27 February 2009 which we have summarised at paragraphs 20-22 above. After considering the consequences of the decision in the criminal trial, she concluded that she was bound by the verdict of the jury against the appellant. At paragraph 67, the judge said: “But the jury’s verdict is not in conflict with my findings. Although I am bound by the not guilty verdicts in relation to the mother, I accept that in these circumstances my finding that either could have inflicted the fatal assault cannot stand. For the reasons which will appear later in this judgment, there is no other reason to undermine my finding that I could not find who was the perpetrator or to exonerate the other of perpetration.” 33. Parker J concluded that she was not bound by the observations of Judge Clegg on sentencing and that she had difficulty with his finding that the mother could not have known of the fractures. She pointed out that Kelly Inman’s account to the jury was different in a number of material respects from that which she had given in the Family Division proceedings and that no-one explored with Kelly Inman the differences between that and the account at the criminal trial. Judge Clegg had had to act on the basis of the evidence before him, even though her judgment had been available to him. She then went on to conclude: i) There was no evidence to change the view that she had formed which we have set out at paragraphs 20-22 above as to what had happened on 18 December 2006. She reviewed the account that Kelly Inman had given during the course of both the criminal and Family Division proceedings and concluded at paragraph 87: “I am quite satisfied that [Kelly Inman] has altered and adapted her story in the way that she has hoped would best suit her purposes at the time. She pleaded guilty to the section 5 offence within the days of the conclusion before me. Her case before me was that she had no real ground to suspect the father of any ill treatment of the children. As I have said, in her basis of plea and in subsequent position statement she admitted that there had been injuries which she should have observed and for which she should have obtained medical treatment. In the end she admitted that she had regarded the hearing before me as in effect a damage limitation exercise.” The judge went on to conclude at paragraph 90: “The mother’s evidence to me has provided further material on which I find that she had deliberately manipulated and lied.” ii) The Family Division had heard significantly different evidence from which to make an assessment of Kelly Inman’s credibility than that which had been before the jury. The evidence had permitted her to take a wide-ranging view of Kelly Inman, her family background and the interplay between family members. Her findings were made upon material which was not placed before the jury and it had been particularly important, when considering Kelly Inman’s credibility, that the whole family had acted in concert in tailoring their evidence at Kelly Inman’s behest; this arose in particular in relation to the mother’s sexual history and her account of the events of 18 December 2006. iii) Parker J noted that Dr Mezey was not called at the criminal trial as Dr Mezey’s opinion had been dismissed by her in her judgment of 27 February 2009. She concluded at paragraph 91: “I am convinced that the mother has further tailored and altered her account in order to run a case in front of the jury that she thought was going to be more successful than the one before me.” iv) Parker J then reviewed the evidence that had been given at the criminal trial in relation to anal sex which Kelly Inman had alleged had taken place without her consent. Parker J concluded that she was not persuaded that the anal sex had been a matter in which she was an unwilling party. She was critical of the way text messages dealing with anal sex had been put to the appellant during the trial, when he had no time to think about his response, but he must have known how damaging they were to him and he had had every reason to lie. The judge concluded in respect of this issue at paragraph 99: “The mother has a track record as an inventive liar who can change her ground swiftly when she wishes. The father may be more educated than the mother, but he is not so agile a thinker.” v) Leading counsel for Kelly Inman in the Family Division proceedings had abandoned in closing submissions a case of BWS. The judge commented at paragraph 107: “That concession itself seems to me to typify the extent to which the mother is prepared to manipulate and alter her case in order to achieve what she thinks is the best outcome.” 34. Against that factual background we turn to the issues in the appeal. Ground 1 – The failure of the judge properly to sum the case up and his other conduct evincing bias 35. It is important, when considering this first ground of appeal, to have in mind the very different cases that were being made by Kelly Inman and the appellant at the third criminal trial. At that trial it was Kelly Inman’s case that Leeya had died as a result of the appellant’s violence towards her; that she, Kelly Inman, had given a lying account initially of what had happened; the truth was that shortly before her death the appellant (who had been violent throughout to both Leeya and Kelly Inman) had been holding Leeya in the moments before she became floppy. Kelly Inman also accepted that on the evidence the fatal injury must have occurred within moments of the child becoming floppy. 36. In contrast it was the appellant’s case that Kelly Inman had been a loving parent, that neither Kelly Inman nor the appellant had caused any injury to Leeya; that although Kelly Inman had been holding Leeya in the moments before she became floppy, nothing had been done to Leeya which had caused her death. On the contrary it was his case to the jury that the death had occurred from a natural cause. We were told by Mr Rawley QC that the appellant had wanted to advance a case that the hospital had been negligent, but no evidence could be found to support such a contention. It was therefore not advanced before the jury. 37. Their contrasting cases meant that counsel for Kelly Inman would seek to cross examine the witnesses to show that the appellant had been violent to Kelly Inman and to Leeya and had held Leeya at the time she became floppy, whereas Mr Rawley QC as counsel for the appellant could only cross examine Kelly Inman and her witnesses on the basis that she had been untruthful as to who was holding Leeya at the time before she became floppy and as to the appellant’s violence towards her. He could not put a case of violence inflicted on Leeya by Kelly Inman. Furthermore it meant that a full challenge had to be made by the appellant to the Crown’s case on the medical evidence as to the nature of the injury, whereas in essence that was not disputed on behalf of Kelly Inman. (i) The summing up of the medical evidence 38. It is convenient we think first to consider the complaint in respect of the way in which the judge summed up the medical evidence. However that complaint must be seen against the background of the way the medical evidence was adduced at the late stage of the trial as we have set out at paragraph 28 above. There is one further factor which we must mention. 39. The substance of the evidence given by Dr Ayoub and Dr Miller was that Leeya had suffered from temporary brittle bone disease. Theories as to this condition had been put forward by Dr Colin Paterson some years ago; he had been struck off by the General Medical Council in 2004 following his evidence in a series of cases in the Family Division about this condition; it was found that he had ignored crucial evidence in advancing his theories. It is clear that his views were discredited in the United Kingdom and no medical evidence could be obtained in the United Kingdom to that effect. Dr Miller and Dr Ayoub were therefore approached by Mr Rawley QC. He accepted their theories were not in line with mainstream medical thinking. 40. In the ordinary course of events, it seems to us that the judge should have considered whether there was a sufficiently reliable scientific basis for their evidence to be admitted before a jury in England and Wales. However, the judge did not do that. We are sure that he took the exceptional course of permitting the evidence to be served at the time at which it was and to proceed without examining whether the evidence was sufficiently reliable to be put before the jury, because he wished to be as fair as possible to the appellant. The judge’s actions in this respect are therefore wholly inconsistent with a case that he was biased or had the appearance of bias against the appellant. 41. In the circumstances it is not for us to comment on whether there was a sufficiently reliable scientific basis for the evidence to be adduced, though no doubt in any future trial in England and Wales where such an issue is raised the judge will give detailed consideration to that issue. Nonetheless the course which Judge Clegg took meant the medical evidence the appellant wished to adduce was thus before the jury. 42. The evidence for the Crown (which, as we have said, was not in essence disputed by Kelly Inman) was, by the end of the trial, that the injuries which we have described at paragraph 7 above were not accidental and that Leeya had died as a result of a head injury caused either by shaking or possibly as a result of a soft blow. The Crown called a number of experts who did not agree on the precise cause of the fatal head injury. Evidence was given by Professors Bishop and Malcolm in relation to their examination of the fractures. It is not necessary for us to set out their eminent qualifications, for once the evidence was properly before the jury (as it undoubtedly was) it was for the jury, provided the summing up was fair, to reach their conclusion on the respective cases of the appellant and the Crown. 43. In our judgment the criticisms of the summing up of the medical evidence by the judge are, on analysis, wholly unfounded. We begin by saying that the judge properly drew to the jury’s attention that the fact that Dr Miller and Dr Ayoub were in a distinct minority did not mean they were wrong. He then carefully and fairly analysed the case as put forward and all the details relating to it. It is not necessary to lengthen this judgment by setting them out. It is sufficient for us to say that there is no substance whatsoever in this aspect of the criticism of the judge. (ii) The lack of balance in the summing up and the failure to put the defence case 44. It was Mr Rawley QC’s next submission that a reading of the summing up showed how unfair it had been and how the judge had failed to put the defence case. Indeed, at the trial on the last day of the summing up, he had complained to the judge that the summing up had been unbalanced in the sense that it was unfavourable to the appellant; it had been constructed to be favourable to Kelly Inman and biased against the appellant; that the judge had gone through the defence of the appellant with what appeared to be a contemptuous attitude in that it emphasised the points made in the cross examination of the appellant while dealing much more favourably with the case of Kelly Inman. 45. It is apparent from the exchange that then occurred that the judge thought that the appellant had given a deeply unfavourable impression when giving evidence. He therefore said that he would add to his summing up the following: “Some of you may feel that the appellant has come out of this case as a less than sympathetic character. Just because somebody is selfish and unpleasant does not of necessity mean that they are guilty. You will not convict [the appellant] on any count on this indictment unless you are driven to that sure conclusion by the evidence and not by sentiment.” The judge also had some factual errors drawn to his attention by Mr Rawley QC and the other counsel; he made some corrections. 46. The argument that Mr Rawley QC advanced before us on this issue can be summarised in the following two points: i) When the judge had summed up the evidence of the appellant he had interpolated on a number of occasions evidence that contradicted that given by the appellant; in contrast when he had gone through the evidence of Kelly Inman he had made interpolations only on or two occasions. ii) The judge had not put properly before the jury the case that had been made against Kelly Inman; it was to the effect that not only was she telling lies but she had constructed her whole case so as to exonerate herself and implicate the appellant. 47. As to the first point it appeared at first sight to have a substantial basis. It was right to say that the judge did interpose on a number of occasions accounts which conflicted with the appellant’s evidence when summing up the appellant’s evidence. However an analysis of the evidence, which was put before us in her able argument by Miss Coen QC, shows that what the judge was very properly doing was summarising the evidence for the jury. There were many occasions on which evidence had been adduced before the jury conflicting with the evidence that the appellant had given. In contrast the occasions on which evidence had been adduced in a manner that contradicted Kelly Inman were far fewer. The judge was therefore merely reflecting the evidence that had emerged in the way in which he summed the case up. Furthermore it is clear that the manner in which the judge dealt with the contrasting accounts was entirely factual and in no way displayed any unfairness towards the appellant. 48. As to the second point, it is important to point out that at the very outset of the summing up the judge, in accordance with the practice followed by some judges, reminded the jury of the case for each of the appellants. He made it quite clear that it was the appellant’s case that Kelly Inman was lying when she said that it was the appellant who was with Leeya at the time of her collapse. It seems to us there can have been no doubt that the jury understood that. 49. It is, however, said that the judge did not go further and set out for the jury the evidence on which the jury could have concluded that Kelly Inman had behaved in a way that had led Parker J to conclude that she had manipulated her evidence, had behaved dishonestly in relation to her virginity and had set about presenting a false case against the appellant. As illustrative of that, Mr Rawley QC relied upon a passage in the summing up where the judge gave the direction on lies. After contrasting the evidence each had given which was said to be untruthful in relation to who was holding Leeya, he continued: “There is another type of lie and that is the lie which has no direct bearing on the issues you have to decide at all. There have been a number of lies in this case, and I will pick out two one for each defendant as examples. Kelly Inman: she admits lying on oath in the family proceedings when she said she was a virgin when she met [the appellant]. [The appellant] he admits telling the most awful lies about his father to the immigration solicitors in order to try and obtain asylum in this country.” 50. It was said by Mr Rawley QC that the judge not only failed to explain to the jury the significance of the lie that Kelly Inman had made in the Family Division proceedings by omitting to make it clear to them that it was part of a fabricated account supported by her family, but had merely stated it was a lie on oath. In contrast to what he described as the “awful lies” told by the appellant. 51. Before turning to examine whether the judge had failed to characterise the evidence in relation to Kelly Inman’s lies about her virginity correctly, it is right to point out that we do not think the judge was in any way unfair in characterising the lie that the appellant had admitted in relation to his father. It is sufficient to state that the lie was contained in a letter sent on his instructions by the solicitors to the UK immigration authorities; in that letter he had falsely alleged that his father had murdered his mother in Nigeria and that he would be at risk of similar treatment if he was returned from the United Kingdom to Nigeria. 52. As to the way in which the judge summed up the evidence in relation to Miss Inman’s lie about her virginity, we have carefully considered the evidence before the jury. We are quite satisfied that the judge summed the matter up fairly. Neither of Kelly Inman’s parents gave evidence at the trial before Judge Clegg nor did Kelly Inman’s sister. There was, therefore, no evidential basis for the judge to sum up to the jury that her family had in any way been implicated in the lie that she admitted. Nor, in contrast to the way in which the evidence had been adduced before Parker J, was there any real attempt to put to Kelly Inman an account based on documents which showed how the lie she had made had come about. In short, the evidence before the jury was not the same evidence as had led Parker J to the conclusion she reached and therefore there was no basis for the judge to sum up the case to the jury in the terms in which it was urged upon us by Mr Rawley QC he should have done. 53. In our judgment the judge summed the case up properly on the evidence before him and we can see no basis upon which it can be said that the summing up was unbalanced. (iii) Bias 54. Mr Rawley QC suggested that the judge had summed up the case in a staccato voice when putting the appellant’s case in contrast to the normal voice the judge had used when summing up the case against Kelly Inman. In the light of that submission we directed that counsel listen to the tapes. This was done and that position was not pursued. 55. We would simply add that in our judgment the summing up of Judge Clegg was a clear and careful analysis of the evidence to which we would like to pay special tribute. It was entirely fair and balanced and correctly reflected the state of the evidence before him. The criticisms made are in our judgment on analysis wholly unfounded. 56. We are quite satisfied that there could be no perception of bias on the part of Judge Clegg, let alone any bias. As we have set out, his decision to admit the appellant’s medical evidence demonstrates how fair he had been. Ground 2 – The safety of the conviction 57. As we have already indicated, the submission put before us by Mr Rawley QC was that it was clear that the conviction of the appellant could not be regarded as safe in view of the conclusion both before the trial and after the trial by Parker J that Kelly Inman’s evidence was that of a manipulative liar. 58. It seems to us that there are two issues to examine. i) Could the jury have convicted even if they disbelieved Kelly Inman? ii) If the answer to that question is no, what is the effect of the conclusion of Parker J? (i) Could the jury have convicted if they disbelieved Kelly Inman? 59. In our judgment the jury could safely have convicted the appellant if they regarded the evidence of Kelly Inman as wholly untruthful. It is clear on an analysis of the evidence that the appellant faced a formidable difficulty in denying that any intentional injury had been caused to Leeya and in saying that Kelly Inman was a loving parent. The medical evidence that the injury was deliberate was overwhelming. The jury must, therefore, have taken the view that in denying that, the appellant was being wholly untruthful. It is inconceivable, given the small house in which the appellant and Kelly Inman lived, that he could have been unaware either of deliberate injury having been inflicted or the effect of such injury on Leeya; the medical evidence was clear that Leeya must have been in severe pain and highly distressed. In denying that the appellant was plainly being untruthful. 60. Secondly, the evidence of the 999 call strongly pointed to showing that the appellant was with Leeya when she had collapsed. He admitted that he had lied about being halfway up the stairs and the account of why he was upstairs for a significant period during the 999 call was wholly implausible. Third, the evidence that Elaine Ellis gave of his violent nature was compelling. Her account of him having bitten her was supported by medical evidence of bite marks. Fourth, the evidence of a central heating engineer who had called at the house on 14 December 2006, four days before the collapse of Leeya was that the appellant had been irritated and aggressive in respect of Leeya’s crying. 61. In our judgment, taking all of this evidence together, there was ample evidence upon which the appellant could properly have been convicted without in any way relying upon the evidence of Kelly Inman. If her evidence was untruthful and invented, in our judgment it can make no difference to the safety of the conviction. (ii) The significance of Parker J’s findings 62. In the circumstances, it is not necessary for us to consider at length the consequences of Parker J’s findings. It is, however, clear from the decision in R v Levy [2006] EWCA Crim 1902 ; [2007] 1 Cr App R 1 that there is very distinct difference between criminal and Family Division proceedings relating to the same events. In Levy Hedley J had concluded at first instance in a fact finding judgment before the criminal trial that he had been unable to say on the evidence whether one parent was more likely to have inflicted the injuries than the other; that it had been a grave failure of parenting for which both must bear responsibility. The Crown had proceeded despite Hedley J’s findings against the father with the mother giving evidence for the prosecution. An application was made to the trial judge, Beatson J, that the indictment should be stayed as an abuse of process on the basis that the Crown was wrong to assume that the mother did not cause injury or death and she could not therefore be put forward as a witness of truth; and that it was contrary to public policy for one competent court to make a finding which was factually contrary to the finding of another competent court on the same facts. Beatson J rejected that submission. 63. On appeal, after a very careful analysis of principle, Sir Igor Judge, then the President, concluded that there was no abuse of process. The Crown were entitled to proceed. The Family Division was not responsible for criminal proceedings. A decision in such proceedings could not prevent the Crown in a proper case bringing criminal proceedings. 64. It was submitted to us by Mr Rawley QC that the present case went much further. In Levy the judge had not made any finding that the mother was untruthful. In the present case the judge had made clear findings both before and after the trial that Kelly Inman was a manipulative liar. In the light of those findings the verdict of the jury could not be considered safe. 65. We cannot accept that submission. We will deal with the matter briefly as the issue does not, in the light of our finding that the conviction is safe notwithstanding that Kelly Inman may have given untruthful evidence. First, it seems to us, as Mr Rawley QC accepted, the conclusion of Parker J could not have been admitted in evidence at the criminal trial. It was for the appellant, with the benefit of those findings, to adduce the primary evidence upon which Parker J had relied. As we have pointed out, that did not happen as Parker J made clear in her subsequent judgment. Thus the evidence which led Judge Clegg to the conclusion we have set out was different in many material respects to that which had led Parker J to the opposite conclusion. 66. Second, it seems to us, that there is nothing in the subsequent judgment of Parker J which amounts to fresh evidence we should admit under s.23 of the Criminal Appeal Act 1968 . In David D and Philip J [1996] 1 Cr App R 455, the Court of Appeal were asked to consider at a directions hearing whether the judgment of a Family Division judge, who had heard Family proceedings after criminal proceedings in which defendants had been convicted of very serious sexual offences against children, should be admitted as fresh evidence. The court concluded at 431: “We have come to the conclusion that as a matter of principle a judgment of a judge who has considered issues which are identical or are similar to the issues tried by the jury in criminal cases or which bear on those issues, may, in appropriate circumstances, be considered by this Court. We give one example only. Suppose the issues heard by the jury and by Connell J. in this case had been identical, which they certainly were not; suppose the defendants had been convicted on the evidence of the children alone. A family judge subsequently hears family proceedings and is left in no doubt, having heard the children giving evidence, that they are not telling the truth and that the defendants were wrongly convicted. It is, in our judgment, inconceivable that this Court would not consider the contents of the judgment of a judge who heard the family proceedings and Mr Elias conceded that this must be correct.” In the subsequent substantive hearing of the appeal which took place in this Court on 3 November 1995 (unreported) the judgment of Connell J was relied on only to a very limited extent. It was contended that adverse findings made by Connell J in relation to the reliability of certain witnesses showed that the trial judge in the criminal trial had acted wrongly in admitting that evidence and that the decision of the judge in the criminal trial could not stand as reasonable in the light of the findings made by the Family judge. As Swinton Thomas LJ, in giving the judgment of the court pointed out, not only was the court deciding different issues, but the two judges did not hear the same evidence. 67. In our judgment, which we express very briefly for the reasons we have given, the conclusion reached by Parker J was reached on different evidence. That different evidence was given before the third criminal trial; the evidence given to Parker J in the subsequent trial added little that was new. There was thus no fresh evidence, only a reaffirmed conclusion of the same judge. In those circumstances, as there was no fresh evidence from the second trial before Parker J, we do not see how this court could reach the conclusion that there was anything to admit under s.23 or that in the circumstances the conviction was unsafe. It is, in our view, very important to bear in mind that it is possible for two different tribunals to reach differing conclusions where there is no certain basis upon which it can be clearly ascertained which person is telling the truth. That is even more likely to occur, as in the present case, where the evidence is different and the evidence which Parker J had acted on was available to be called at the criminal trial. There is, in our system of justice, no reason to prefer the decision of a judge to that of a jury on a matter such as this. This court’s ability to consider, as we have carefully done in this case, evidence that was placed before the jury to see whether it was entitled to reach the conclusion that it did provides in our judgment a safeguard in relation to the decision of the jury. Application to appeal on the direction of intent 68. We will deal with this point briefly. The judge, it is accepted, gave an impeccable direction on the meaning of intent. It is submitted, however, that the judge by using the language he did went on to imply that a jury could consider intent on an objective rather than a subjective basis. In our view it is clear that the judge gave no such direction and no criticism can properly be made of it. Conclusion 69. As we have already said, every point that could properly be taken was taken by Mr Rawley QC who conducted the appeal with great thoroughness and skill. However, for the reasons that we have set out. we dismiss this appeal. The conviction of this appellant was safe and soundly based on the evidence before the jury; there was no new evidence or other factor which causes us to doubt the safety of the conviction.

```yaml citation: '[2010] EWCA Crim 2972' date: '2010-12-21' judges: - LORD JUSTICE THOMAS - MR JUSTICE 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} ======

Neutral Citation Number: [2010] EWCA Crim 2913 Case No. 2010/06160/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Tuesday 23 November 2010 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE CALVERT-SMITH and MR JUSTICE GRIFFITH WILLIAMS __________________ R E G I N A - v - REBECCA JAYNE A __________________ 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 G Hennell appeared on behalf of the Applicant ____________________ J U D G M E N T THE LORD CHIEF JUSTICE: 1. On 15 October 2010 A, now the appellant, faced two indictments at Mold Crown Court both of which alleged that she had perverted the course of public justice. Although the Statement of Offence alleged in each indictment was identical, the Particulars of Offence were mutually contradictory. The first indictment alleged that she had made and pursued false allegations of rape against her husband. The second indictment alleged that she had made and pursued a false retraction of these allegations. She pleaded not guilty to the first indictment and guilty to the second. The Crown offered no evidence on the first indictment. She was therefore acquitted by order of the judge and a not guilty verdict was entered. The case was adjourned for sentence and restored to the list on 5 November. 2. On that date the appellant's sentence had to be assessed on the basis that she had perverted the course of justice by falsely retracting a truthful allegation that her husband had indeed raped her. After making allowance for her guilty plea, His Honour Judge Rogers QC imposed a sentence of eight months' imprisonment. 3. This is her appeal against that sentence. She would no doubt wish to record her thanks to Mr Hennell for his efforts in bringing this case to the attention of the court as quickly as possible. We should record that the papers arrived in the office of the Registrar of Criminal Appeals on Thursday of last week and we are grateful to those working for the Registrar for ensuring that this case was given the expedition that it required. 4. The facts are complicated, although the narrative account which we will take from the prosecution opening at Mold Crown Court will put it into a clear context. The appellant was born in May 1982. She is now 28 and a woman of effective previous good character. She had lived with her husband for nine years and they had married after they had been together for about four years. They have four young children now aged eight, seven, three and two years. On the appellant's account -- and we emphasise that we have not heard her husband's account -- she was subjected to violent abuse and became very fearful of him. 5. At about 1am on 28 November 2009 the appellant made a 999 call to Dyfed Powys Police Station reporting that she had been raped by her husband. At the time she was clearly in an extremely distressed state. Police officers attended and she was relocated to a women's refuge while a search was carried out for her husband. 6. On the following day she was examined by a forensic medical examiner and also video-interviewed. During the course of the interview she gave an account that on three occasions over the previous month she had been raped by her husband. Later that same day her husband was arrested and charged with six counts of rape ranging from anal to vaginal and oral rape. He was brought before the court on the following day and remanded into custody before a preliminary hearing on 10 December 2009 at Mold Crown Court. At the preliminary hearing he was granted conditional bail. 7. Matters then occurred where he was in breach of his bail and he was remanded into custody, and then re-released. 8. The situation then changed. On 7 January 2010 the appellant contacted the police. She was interviewed at her request. She informed the police that she wanted to withdraw her complaint against her husband. Nevertheless when interviewed, although she wished to withdraw the complaint, she continued to assert that the allegations she had made against him were true. 9. A conference was arranged on 14 January between the police, the Crown Prosecution Service, and prosecuting counsel. It was decided, bearing in mind that in the course of her interview the appellant had maintained that her allegations were true and notwithstanding her wish that the case should be withdrawn, that it should proceed. That decision was communicated to the appellant. 10. On 18 January a plea and case management hearing took place in the case of the Queen against her husband. He entered not guilty pleas. A trial was fixed for May. The appellant was granted special measures in the usual way. On that day, as arranged, she met with those responsible for the prosecution. During the course of the meeting she told them that she had met her husband over the Christmas period and that they had had consensual sexual intercourse. Obviously that would be a source of concern to the prosecution. 11. On 7 February the detective officer responsible for the investigation spoke to the appellant on the telephone for about fifteen minutes. The appellant said to her, "That's it, it's all over. What's going to happen now if I say I made it all up, I've lied about the rape?" The officer was sceptical about this further retraction and treated it with appropriate scepticism. Eventually the appellant was told that the case against her husband would proceed. 12. Four days later, on 11 February, the appellant went to the police station and told the officers responsible for the case that the allegations of rape were untrue. In those circumstances they were left with no option other than to arrest and caution her. In due she provided a written witness statement in which she asserted that the allegations of rape she had made were false. 13. The officers continued to test the retraction as much as possible, but however they tested it, on this occasion the appellant maintained it. So it was that on the following day, 12 February, when her husband appeared before the Crown Court at Mold, the Crown decided, and in reality they had no option, that no evidence should be offered against him on the six counts of rape. Accordingly, not guilty verdicts were entered. That was the end of the case against him. 14. On 16 April the appellant was arrested and interviewed under caution about her witness statement. She continued to assert that the allegations of rape that she had made were false. Accordingly, she was charged with an allegation of perverting the course of justice, at that stage on the basis that she had made a false complaint. 15. The case came on at Mold Crown Court. At that stage the appellant attended and had a discussion with her counsel. It is not appropriate for us to indicate the terms of the confidential discussion between the appellant and her counsel. It is sufficient to indicate (because this is a matter of public record) that her assertion was that she had, in fact, been raped and that it was the retraction, rather than the allegation of rape, that was false. She then telephoned the police and confirmed the truth of the allegation of rape. 16. Further discussions took place between the police, the Crown Prosecution Service and counsel, and it was decided that there should be a further interview, which took place at the end of the month. The appellant was questioned about the false retraction. She fully admitted that she had perverted the course of justice by providing a false retraction. She gave an explanation of how this had come about. She said that she had received a visit from her husband's sister who told her to say that she had lied and that if she did, she would receive a suspended sentence because the children were living with her. She felt under pressure. During the time when her husband had been on bail and had been seeing the children, she had also felt under pressure. She had been given to understand that if her husband had been convicted the sentence on him would be something in the order of ten years' imprisonment. 17. The appellant explained her position to the author of the pre-sentence report. She said that, following the arrest of her husband and his remand in custody, she had felt an immense sense of guilt. She believed that simply by the instigation of proceedings to divorce her husband would be sufficient for her own purposes, and so she decided to withdraw her complaint. When her husband was released on bail he contacted her. She said that she was in an emotional and very confused state at the time. She told the author of the report that she had suffered from years of domestic abuse and was very fearful of her husband but, wanting to give her children a family Christmas at which their father was present, she continued to communicate with him. This created an immense pressure on her. Her husband sought to persuade her to retract her original statement and so, due to fear of repercussions from him, she had agreed. 18. Those were the facts as presented to the judge at the Crown Court. We have studied his sentencing remarks. The judge was understandably concerned about how to approach the question of whether the appellant was or was not a victim of rape in the light of the fact that her husband had never been convicted of raping her and therefore as a matter of law is presumed to be innocent of any such offence. We acknowledge that concern. Nevertheless, for the purposes of sentencing the appellant, that question was resolved by the acceptance by the Crown that her criminality extended to a false retraction of the complaint of rape. In other words, she had retracted a truthful allegation that she had been raped by her husband. 19. It is worth emphasising that a complaint that an individual has been the victim of crime is not, and never has been, merely a private matter between the complainant and the alleged perpetrator of the crime. Every crime engages the community at large. There is a distinct public interest in the investigation and, if appropriate, the prosecution and conviction of those who have committed crime. Precisely the same considerations apply to every witness to a crime. An unconvicted criminal is free to continue to commit crime and to add to the list of his victims, as well as to escape justice. Therefore, perverting the course of justice is not confined to making and pursuing false allegations or giving false evidence, which is always a very serious offence. It extends to the retraction of truthful allegations or the retraction of truthful evidence. These offences, too, can sometimes be, and should be treated as, offences of great seriousness. 20. All that said, the difference between the culpability of the individual who instigates a false complaint against an innocent man and the complainant who retracts a truthful allegation against a guilty man will often be very marked. Experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it. 21. Where a woman has been raped, and raped more than once by her husband or partner, the father of her children, the man in whom she is entitled to repose her trust, those very actions reflect, and are often meant to reflect, manifestations of dominance, power and control over her. When these features of a relationship between a man and a woman are established, it is an inevitable consequence that the woman who has been so ill-treated becomes extremely vulnerable. 22. Of course it is better for a truthful complaint to be pursued, but if the proposal that it should be withdrawn is not accepted, leading to a positive retraction and admission that the original truthful complaint was untrue, and the complainant is then prosecuted to conviction, the sentencing court, when assessing culpability, should recognise and allow for the pressures to which the truthful complainant in such a relationship has been exposed, and should be guided by a broad measure of compassion for a woman who has already been victimised. 23. This is an exceptional case. We hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in the Crown Court. The sentence for perverting the course of justice normally is, and will normally continue to be, a custodial sentence. That is a requirement of the administration of justice and, where possible, the reduction of crime. But this was not such a case. We have come to the conclusion that the appropriate sentence in this case is a community sentence with a supervision order for a period of two years. 24. The appellant will now be entitled immediately to be released. We add that we are extremely concerned about the situation that will face her when she returns back to her home. That provides not the slightest basis for keeping her in custody and it would be quite wrong to do so. We understand that she intends to go to live with her sister and that she will take such proceedings as are necessary and appropriate in the family courts in order to ensure that the arrangements for her four children are the best that can possibly be devised. That litigation should be started as soon as practicable. The court should give every expedition that it can to resolving this extremely difficult and convoluted case to the best advantage of the children. ______________________________

```yaml citation: '[2010] EWCA Crim 2913' date: '2010-11-23' judges: - MR JUSTICE CALVERT - MR JUSTICE GRIFFITH WILLIAMS ```

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No: 2007/04101/C2 Neutral Citation Number: [2008] EWCA Crim 260 IN THE COURT OF APPEAL CRIMINAL DIVISION SITTING AT CARDIFF CROWN COURT The Law Courts Cathays Park Cardiff, CF10 Date: Friday, 25th January 2008 B E F O R E: LORD JUSTICE PILL MR JUSTICE RODERICK EVANS MR JUSTICE WALKER - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- IAN JON PULLEY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G Walters appeared on behalf of the Appellant Mr M Spackman appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE PILL: On 6th July 2007 in the Crown Court at Swansea, before His Honour Judge Diehl QC and a jury, Ian Jon Pulley was convicted of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861 . On 15th August 2007 he was sentenced to an extended sentence of 5 years, pursuant to section 227 of the Criminal Justice Act 2003 , made up of a custodial term of 3 years' imprisonment and an extension period of 2 years. 2. Pulley appeals against conviction by leave of the single judge. 3. The point at issue is the admission into evidence of statements made by the victim of the alleged assault. The alleged victim was the wife of the appellant, Kimberley Pulley. On 1st March 2006 she received a substantial injury to her left hand. The tip of her ring finger was severed and the tip of her little finger partially severed. The prosecution case was that the appellant had caused the injuries by assaulting the complainant, first by stabbing her with a fork in the thigh, where there were signs of injury, and then by attacking her with a machete. The appellant, her husband, denied the offence. His case was that the injury to the hand had been caused when the complainant accidentally trapped her fingers in the door at the matrimonial home. He denied stabbing the complainant in the thigh with a fork. He denied using a machete to injure her hand. 4. Sadly, the complainant died, for reasons unconnected with the events of 1st March, later in 2007 and before the trial. A successful application was made to put in evidence three statements which she made about the events of that day, the first of them being given on 2nd March, the day immediately following the date of the alleged offence. 5. Counsel have agreed what needs to be mentioned as indicating the substance of her evidence, or "the high point", as counsel put it. There was an argument about what they were going to have for dinner. She had prepared salad; he wanted chips. He stabbed her twice with a fork to her thighs. It was, however, the injury to the hand which formed the substance of the charge, and the issues argued before the jury. 6. The appellant went to the utility room and took possession of a machete, which they owned and used on occasions in the preparation of meat for eating. He joined her in the kitchen. Her account, as recorded in her statement, was: "He was shouting and bawling, 'I am going to have you'. At that stage I really did think that he would hurt me, but did not believe that he would use the machete. For some reason I raised my left hand to protect my head, and I then felt extreme pain in my left hand and saw that the top of my little and ring finger of my left hand had been chopped off. At home and in the ambulance and at the hospital he kept telling me to say I had hurt my fingers in the door. But after I had told an ambulance man that it was an accident, I decided that I was going to tell the truth about what he had done. While I cannot be sure that he used the machete, as I was and still am in such shock." In the statement she maintained that she had not been drinking that evening, and said that she was willing to have a blood test to demonstrate that she had not been drinking. 7. In a subsequent statement the complainant purported to identify the machete, and she said that it had been used in order to bone a breast of lamb about a month before 1st March. In a later statement the complainant also said: "I know he will say it was an accident, that I jammed my hand in the door. This was no accident. He hurt me with the machete. He also stabbed both my legs with the fork, causing injuries. I did not do these myself." 8. The appellant summoned an ambulance to the house. The paramedic who attended, Mr Harris, gave evidence that the appellant had told him that he had had an argument with his wife and she had caught her fingers in the door when he was shutting it. When Mr Harris saw the complainant she did not tell him how the injury had been caused. In the ambulance and in the absence of the appellant, she said "He did it", but Mr Harris thought that the comment related to the door-shutting account given to him by the appellant. However, an argument persisted in the ambulance, the complainant saying, "You did it, you did it" to her husband. He did not hear the appellant telling the complainant to say that she had trapped her fingers in the door. 9. Mr Fair, another paramedic who attended in the ambulance, said that the complainant also told him that her hand had become stuck in the door. He had suspicions about that, having observed the nature of the injury to the hand. He confirmed that the complainant was saying, "He did it". He notified his suspicions to Senior Nurse Sharp after they had reached the hospital. 10. A nurse at the hospital, Mr Powell, said that the complainant had told him in the presence of the appellant that the appellant had purposely trapped her fingers in the door, and he also made a report to Nurse Sharp, his supervisor. The complainant asked for Mr Powell's help in calling the police. 11. Miss Sharp gave evidence of the reports of concern to her, and that the complainant had told at a later stage that the appellant had deliberately caused her injuries with a machete. The complainant made that complaint to her. Nurse Sharp had known the complainant for many years. 12. Two police officers also gave evidence by way of statements that the complainant had told them that the appellant had assaulted her with a machete. Medical evidence was given by Dr Yaqoob, consultant orthopaedic surgeon. He had not examined the complainant, but had seen medical notes which included a photograph of the injury. His evidence, as summarised by the judge, accurately as counsel agree, was that the injury to the hand was on a balance of probability more likely to have been caused by a sharp instrument than it was by a closing door, though the other possibility could not be excluded. 13. Dr Yaqoob referred to notes prepared by his junior, Dr Danana, who had seen the complainant on admission, and Dr Danana had noted that the appellant had trapped her fingers in the door. He also noted that the complainant was at that time under the influence of drink. 14. A scenes of crime officer, Detective Constable Morris, found bloodstains on the carpet in the lounge of the home and some on the front settee. There was a blood-stained towel in the kitchen, but no blood or blood trail was found on the kitchen floor. The door frame, where the appellant alleged the injury had occurred, found a "weak positive" for blood, and that was at hand level on the door. 15. The machete identified, and not disputed to be the family machete, was examined by Mr Little, a scientific witness. He found no trace of the complainant's DNA on it or on its sheath. However, some non-human material was found on one side of the handle towards the blade. He accepted that a bladed weapon may not become blood-stained as a result of a single strike, but he would have expected the transfer to the blade of some cellular material from the victim, and no such material was found. As to the suggestion that the knife had been cleaned, it was accepted that one would then have expected the non-human material found on it also to have been removed. 16. The complainant provided a sample of blood for analysis. It was found to contain a substantial percentage of alcohol. A back calculation was done which showed the likely reading at the time of the relevant events in the house to have been several times above the legal limit for driving. 17. The appellant gave evidence. He described the events of the evening. He had been drinking cider. He had not seen his wife drinking, though she had had a serious drinking problem. He went into the kitchen to wash up after dinner. He closed the door to the living room by leaning against it with his bottom, using enough force to shut it. He was not aware that his wife was near the door. As he shut it, he heard a scream and saw something fall to the ground, which was the end of her finger. It was bloody. He took a flannel from the bathroom and wrapped it round her fingers. He took her to the settee and sat her down, putting a bag of frozen food on the finger. He called the emergency services. 18. The appellant denied that he told his wife what to say to the paramedics or to the hospital staff. He recalled her telling a doctor that she had shut her fingers in a window. There was evidence that a number of affectionate letters had been sent by the complainant to him following the events and his remand into custody. 19. In terms of weight on the door, the appellant said in cross-examination that he put his full weight of 19½ stone in his attempt to shut the door. He denied cleaning the blade of the machete on his return. 20. The judge summed up the case in great detail, and no criticism is made of his summing-up. He did consider in detail the inconsistencies which were present in the prosecution case and the submissions which had properly been made on the appellant's behalf by Mr Walters of counsel, who appears before this court. 21. Mr Walters submits that the written statements should not in these circumstances have been admitted. His submission is that there was no sufficient assessment of the reliability of the maker of the statement, and a decision that the statements qualified for admission was inappropriate. He submits that the decision was outside the discretion of the judge if properly exercised. 22. Mr Spackman, for the prosecution, of course relies on the breadth of the judge's discretion when deciding on the admission of evidence. The court should not interfere with that. The judge conducted a proper exercise in relation to reliability and was entitled to admit the evidence. Unfortunately, the judge was not referred to the statutory requirements in section 114(2) of the Act. 23. The submission is that the trial was rendered unfair by the admission of the complainant's statements. The starting point is, of course, Article 6(3)(d) of the European Convention on Human Rights, which provides that everyone charged with a criminal offence has certain minimum rights, one of which is: "to examine or have examined witnesses against him ..." 24. Reference was made to Luca v Italy (2003) 36 EHRR 46 . That ruling and more general considerations have been the subject of consideration in the courts of England and Wales. It is accepted, by virtue of section 114 of the Criminal Justice Act 2003 (" the 2003 Act "), that statements may be admitted. The test as to admissibility is set out in section 114(2) : "In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant) — (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it." 25. Section 116 specifies the situations in which a witness is "unavailable" for the purpose of that consideration, and the death of the proposed witness is, of course, one such situation (section 116(2)(a)). 26. Attention is also drawn to the general discretion to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (" the 1984 Act "), preserved by section 126(2) of the 2003 Act , where: "... 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." 27. In his ruling, which was also in some detail and gave careful consideration to the points raised, save that unfortunately section 114(2) was not referred to, the judge concluded, by way of explanation of a ruling given the previous afternoon: "... I ruled shortly yesterday that the statements should be admitted and that their admission in evidence would not have such an adverse [effect] upon the fairness of these proceedings that I should decide otherwise or indeed such as to render the proceedings as a whole unfair to the defendant." 28. In the course of the ruling, the judge had said, having referred to the contradictions in the complainant's statement and other matters raised: "That again, in my judgment, I interpose, is an asset which aids the defence not the prosecution and does not need or require [in justice] to the defendant any further exploration." 29. Again, at page 11D: "As to the lie about drink and intoxication itself, those matters in my view clearly serve to assist the defence." 30. The circumstances in which statements should be admitted were considered in this court in R v Imad Al-Khawaja [2005] EWCA Crim 2697 , the judgment of the court being given by Jack J. That was a case where the defendant was convicted of two counts of indecent assault on a female. The prosecution case was that the allegations of the two complainants were mutually supportive. The prosecution also relied on the strikingly similar evidence from two other women. One of the complainants had died and the judge admitted her statement. 31. It was held in this court that the judge had been entitled to do so. The defendant was able to attack the accuracy of the relevant complainant by exploring the inconsistencies between her statement and the other witnesses. The court referred to the strong public interest in the admission of a statement in circumstances such as those, though it must not override (the court stated at paragraph 26) the requirement that the defendant have a fair trial. 32. The judge noted that it was not a case where collusion between the complainants was suggested. There was nothing to suggest that the women knew the details of each other's allegations, and evidence of improper suggestions made to the other two witnesses who gave evidence. The court concluded: "28. We have concluded that the rights of the appellant under Article 6 were not infringed by the admission of the statement. We consider that his rights were sufficiently protected in the circumstances of his case. His trial was not unfair." 33. The court went on to say that appropriate directions to the jury were required and were given. The court concluded: "We should also say that overall the evidence against the appellant was very strong. We were wholly unpersuaded that the verdicts were unsafe." 34. Two separate cases were considered by this court in R v Cole and Keet [2007] EWCA Crim 1924 , Lord Phillips CJ presiding. The Lord Chief Justice referred to Article 6 and to the statutory requirement, which we have already cited. At paragraph 10, the court cited the judgment of the European Court of Human Rights in Luca : "The evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, Art. 6(1) and (3)(d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage." 35. Having considered Luca , the court stated at paragraph 13: "Furthermore, Luca was a case where the evidence in question was the main evidence against the accused. It cannot be treated as authority for the proposition that in all circumstances hearsay evidence cannot be adduced unless the defendant is able, or has had the opportunity, to examine the maker." 36. At paragraph 21: "21. There are many reasons why it may be impossible to call a witness. Where the defendant is himself responsible for that fact, he is in no position to complain that he has been denied a fair trial if a statement from that witness is admitted. Where the witness is dead, or cannot be called for some other reason, the question of whether the admission of a statement from that witness will impair the fairness of the trial will be depend on the facts of the particular case. Factors that will be likely to be of concern to the court are identified in section 114(2) of the Act. 22. In accordance with these conclusions, we shall proceed to consider the individual appeals on the basis that Article 6 imposes no absolute embargo on the admission of the hearsay evidence adduced by the prosecution in either case." The court went on to consider the facts of the two cases and held that statements had in each case properly been admitted. 37. Keet was convicted of attempting to obtain property by deception (count 3) and damaging property (count 4). The prosecution case was in part based on the evidence of Mrs Soper, a lady who was 82 years old. She was approached by the defendant with a view to doing roofing work on her house. She was told that further work would be required and would cost £6,000. Mrs Soper said that she would have to get this from the bank. She told her daughter what had happened and her daughter was angry, whereupon the matter was reported to the police. 38. Inspection of the roof revealed that a tile had been lifted and a piece of roofing felt cut out. This formed the subject matter of count 4. The prosecution case was that the damage was caused deliberately so as to justify the further work for which £6,000 was claimed. Evidence was called that the original work done should have cost about £100, and evidence critical of the work in fact done was produced. 39. In that context the court considered, at paragraph 38, the provisions of section 114 . Amongst their comments were these: "d) The circumstances in which the statement was made suggested that the maker believed in the truth of the statement. It was not suggested by the appellant that the evidence in question was untruthful; indeed he accepted that part of it was accurate. He merely contended that Mrs Soper must have been mistaken as to certain other parts. e) There is ... a degree of confusion in the statement about particular dates. Overall, however, the statement paints a coherent picture and it has been accepted that Mrs Soper, although elderly and subsequently affected by dementia, was rational when she made it." In those circumstances the court held that the judge had been right to admit the statement. 40. Cole was convicted of assault occasioning actual bodily harm to his girlfriend, now deceased. The witness not able to give evidence was Sharon Tracey, her room-mate, and count 1 was based on Sharon Tracey's evidence of witnessing the appellant assault her on three separate occasions. The background was of course the inability of the deceased victim, Katy Smith, to give evidence. It was accepted that on count 2 the case depended largely on statements alleged to have been made by the deceased to her brother, also not available to give evidence. Other witnesses gave evidence of upset and injury of the deceased, including evidence that she had had a black eye. Count 3 was based on inferences to be drawn from the injuries found on the body of the deceased. 41. In this case, too, the court considered the overall impact of the evidence in relation to the non-availability of an important witness. The court concluded: "73. The facts of this case are very different from those of Keet . If each statement is considered in isolation it is both less cogent and less significant than the evidence of Mrs Soper. The statements are lacking in detail and in precision as to date. When the factors in section 114 are considered in respect of an individual statement, the case for admission is weaker than it is in Keet . But the correct approach is not to consider each statement on its own, but to consider it in its context. Each statement is part of a wider picture. That picture is coherent and compelling. It is of a relationship between the deceased and the appellant that was punctuated by physical violence on his part." 42. The court set out the detail, including the closeness of the relationship and the presence of the injuries. The court concluded that: "78. ... the admission of the hearsay evidence was in the interests of justice and consistent with a fair trial." 43. Mr Walters submits that both those cases are distinguishable, on the general principles to be applied, because the evidence in the present case emerging from the statements of the deceased does not fit into the coherent picture present in the other cases and is not accepted by the defendant. 44. Reliance is placed on the case of R v Sellick [2005] EWCA Crim 651 (to which reference was made in paragraph 16 of Keet and Cole ). Waller LJ, giving the judgment of the court, stated propositions resulting from the Strasbourg decisions, one of which, (iv), cited at paragraph 16: "iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair." 45. Mr Walters submits that the evidence is not inherently reliable. He relies on a number of factors emerging from other evidence before the court. First, there was no blood apparent in the kitchen where the violence was alleged to have taken place. Second, the blood spattering was throughout the lounge, which is where the complainant was led so that she could sit and wait for the ambulance. Third, there was blood on the door frame at about handle level, and that was consistent with the appellant's account of where the injury had been sustained. Fourth, a spot of blood was found on the carpet below the point where the appellant said the injury had taken place. Fifth, the scientific examination of the machete did not show blood. As to the suggestion that it had been cleaned, and the appellant had the opportunity to clean, the presence of non-human tissue, that would have resulted from the lamb boning, was still there. 46. In relation to the reliability of the complainant's evidence, Mr Walters relies upon the contents of the report of the request for emergency assistance, which was consistent with the appellant's account. A paramedic gave evidence that the complainant had given an account that the injury had been caused by a door. He also gave evidence that he had not heard the appellant telling the complainant what she was to say. At the hospital a doctor was told that the injuries were caused by the jamming of the fingers in a door. The suggestion had also been made that the injury had been caused by a deliberate slamming of the door on the complainant. That might involve an offence, but it was not consistent with the complainant's account. 47. Reliance is also placed on the untruthfulness of the complainant's statement that she had not been drinking. It is clear, and accepted on the evidence, that she must have been very substantially under the influence of alcohol at the time of the offence. Her denial goes to her credibility; the influence of the drink on events is not said to be relevant. 48. Further, following the detaining of the appellant, the complainant wrote him a number of letters in affectionate terms, in one of which she said, "All this crap should never have happened," the meaning of which is arguable, but does add weight, it is submitted, to the suggestion that her complaints had been manufactured. 49. Clearly there would have been very substantial grounds for cross-examination of the complainant had she given evidence, because of her inconsistencies, lies and the other evidence to which we have referred. 50. The prosecution rely on the medical evidence that, on a balance of probabilities, it was likely that the injury was caused by a machete, a slicing injury rather than a slamming injury. That is consistent with the complainant's amount in the statements, though it is not conclusive evidence, the doctor accepting that the other possibility could not be excluded. The prosecution also submit that the lie in relation to the taking of alcohol is not material to the issues which the judge had to consider. 51. Mr Spackman submits that in his discretion the judge was entitled to admit the statements under the 2003 Act , having due regard to section 78 of the 1984 Act and to the statements of principle. It should be stated that the case of Cole and Keet , on which Mr Spackman relies, was not available to the judge when he made his ruling on 3rd July 2007. 52. It has been necessary to consider the facts of those cases and Al-Khawaja to establish the principles permitting the admission of the statements and their application to the current facts. 53. We cannot accept the proposition that the presence of serious inconsistencies and lies in the statement of an absent witness necessarily operates in favour of its admission, because inconsistencies favour the defence. On that approach the court is less likely to admit an apparently reliable statement than an apparently unreliable statement. That conflicts with proposition (iv) in Sellick , cited by this court at paragraph 16 of Cole , and is contrary to section 114(2)(e) of the 2003 Act , which provides that the court must have regard to: "how reliable the maker of the statement appears to be". 54. That approach to inconsistencies and lies does emerge from the judge's ruling as cited, though other factors were also present. It was not a correct approach in our judgment. It may well have influenced his eventual ruling. That enables this court to exercise its own discretion. 55. We have considered the cases of Al-Khawaja , Cole and Keet and have thought it appropriate to refer to the facts in those cases in some detail. In each of those cases the contents of the statements fit comfortably with other available evidence, which indeed provide substantial support for their accuracy. That is not the situation in this case. The medical evidence is consistent with the complaint made by the victim. Much of the evidence, which we have summarised, gives rise to serious questions, and doubts, about the accuracy of the account contained in the statements admitted. 56. We have come to the conclusion that the admission of the statements in this case, in a situation in which the maker of the statements could not be cross-examined, did in the circumstances deprive the appellant of a fair trial. We have particular regard to section 114(2)(e) , to which we have referred. Of the other factors stated, some favour admission, others are neutral. But there could not be a fair trial in this case, having regard to the very serious doubts about the reliability of the statement concerned, without the maker of the statement being available for cross-examination. 57. The trial was not in that respect fair, and it follows that the verdict is, in our judgment, unsafe and the verdict must be quashed. The appeal accordingly is allowed. 58. Are there any applications? 59. MR WALTERS: None, my Lord, except the discharge of the appellant. 60. LORD JUSTICE PILL: Mr Spackman? 61. MR SPACKMAN: No, thank you, my Lord. 62. LORD JUSTICE PILL: There are no other matters on which attention arises, so a discharge is appropriate? 63. MR SPACKMAN: Yes, it is. 64. LORD JUSTICE PILL: Thank you very much. We are grateful to both counsel for their submissions. ______________________________

```yaml citation: '[2008] EWCA Crim 260' date: '2008-01-25' judges: - LORD JUSTICE PILL - MR JUSTICE RODERICK EVANS - MR JUSTICE WALKER ```

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: [2018] EWCA Crim 2944 Case No: 201804592/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 18 December 2018 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE ANDREWS DBE RECORDER OF STAFFORD (HIS HONOUR JUDGE MICHAEL CHAMBERS 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 TOMMY JOE TREMAYNE - - - - - - - - - - - - - - - - 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 J Polnay appeared on behalf of the Attorney General Ms R Bradberry appeared on behalf of the Offender - - - - - - - - - - - - - - - - J U D G M E N T (Approved) WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. 1. LORD JUSTICE HOLROYDE: On 10 September 2018, in the Crown Court at Taunton, Tommy Joe Tremayne pleaded guilty on re-arraignment to an offence of assault with intent to rob, contrary to section 8(2) of the Theft Act 1968. He was sentenced to a 2-year community order with a requirement to undertake 200 hours unpaid work and to complete over 20 days a rehabilitation activity requirement. He was also ordered to pay compensation to the victim of the offence in the sum of £500. 2. Her Majesty's Solicitor General believes that sentence to be unduly lenient and accordingly applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing can be reviewed. 3. We express at the outset our gratitude to counsel, Mr Polnay for the Solicitor General, and Ms Bradberry, here, as below, for Mr Tremayne. Their written and oral submissions have been of a high quality and have been of great assistance to the court. 4. The offence was committed on 15 September 2016. Mr Tremayne was then aged 24. As the pre-sentence report before the sentencing judge indicated, Mr Tremayne's life as a child had been chaotic. For some of his childhood his mother was in prison and he had lived with an aunt. He was excluded from school at the age of 14 and attained no formal qualifications before reaching school leaving age. He ran away from home at the age of 15 and thereafter lived on the streets, spending his time with older men who introduced him to drugs. He described to the reporting probation officer that he had been a victim of sexual abuse. He committed crimes to finance his drug habit. By the time of the sentencing of the present offence he had accumulated some 80 previous convictions, the majority of which were for offences of dishonesty but some of which were for offences involving drugs, damage and violence. 5. The victim of the offence was Mr Mullins, a man aged in his early 50s who has the misfortune to have sustained a brain injury and to suffer from learning difficulties and schizophrenia. His disabilities required him to live with carers. A witness to the events described Mr Mullins as "dishevelled and vulnerable". 6. Mr Mullins enjoyed visiting and sitting in a local park and was doing so when he was approached by Mr Tremayne. Mr Tremayne was heavily intoxicated. He had been spoken to by police officers only about 15 minutes earlier. He approached Mr Mullins and demanded his money. Mr Mullins tried to run away. Mr Tremayne chased him and shouted at him. Mr Mullins asked to be left alone. But Mr Tremayne continued to pursue, his conduct being described by an eyewitness as "very aggressive". Mr Mullins then slipped or tripped and went to the ground. Mr Tremayne, shouting "give me your money", knelt on him, held him down and punched him. He then bit off the top of Mr Mullins's right ear before, as a witness described it, swaggering off. 7. Mr Tremayne was arrested nearby. He was aggressive with the arresting officers. At the police station he made remarks appearing to say that he had beaten up someone who had raped him. Plainly Mr Mullins had done no such thing. When interviewed under caution, Mr Tremayne made no comment to the questions but put forward a prepared statement in which he expressly denied the offence. He initially pleaded not guilty. The case was prepared for trial and defence expert evidence was obtained with reference to bloodstaining found on Mr Tremayne's clothing. 8. Mr Mullins, for his part, was taken to hospital after the incident. His injured ear was stitched but we understand he is left with a very visible deformity. In a victim personal statement prepared about 6 months after the assault, Mr Mullins said that for about 2 months after the incident he had not visited Taunton at all and then had only visited in the company of care staff. He had not returned to the relevant park. He now avoided back streets, became frightened if he saw people in groups and still became upset when he reflected on the incident. 9. At the time of committing this offence Mr Tremayne was on licence from a sentence of 30 months' imprisonment which had been imposed on 8 January 2015 for an offence of robbery. The circumstances of that offence were that Mr Tremayne, whilst intoxicated by drink and/or drugs, had robbed a shopkeeper at knife point. Remarkably, that offence had itself been committed whilst on licence from a prison sentence totalling 23 months for a number of offences of dishonesty, driving whilst disqualified and breach of a suspended sentence. Thus, to put it shortly, at the time of the present offence, Mr Tremayne was on licence from a sentence imposed for an earlier offence which had itself been committed on licence. 10. Following his arrest for the present offence it seems that Mr Tremayne was on bail for a time but was then recalled from licence in about early January 2017 and remained in prison until 4 July 2017. Although we do not have precise dates, we take it that he was recalled from licence for a period of about 6 months. 11. It is also relevant to note that in July 2016 Mr Tremayne had committed an offence of criminal damage to which he was later to plead guilty. He had been required to attend court on 19 September 2016. It follows that this offence, in addition to being committed on licence, was committed only days before he was due to appear in a court. 12. Having been charged with the present offence, Mr Tremayne was sent for trial by the magistrates on 8 February 2017. He then made no fewer than 10 Crown Court appearances before entering his guilty plea. An initial listing for trial was stood out because both prosecution and defence wanted more time to prepare and in particular, the prosecution had not served all their evidence. A later trial listing in November 2017 did not proceed because of a combination of a lack of court time and the defence lawyers still awaiting the report from the instructed expert witnesses. In the course of these hearings a defence case statement was served in which Mr Tremayne denied that he was the person who had assaulted Mr Mullins. 13. His eleventh appearance in the Crown Court was on 10 September 2018, when the case was listed for trial. Counsel on his behalf sought a Goodyear indication, on the basis of a guilty plea accepting the prosecution evidence as to the facts, but asserting that Mr Tremayne had little, if any, recollection of the incident because of his level of intoxication. Submissions were made to the judge as to the guidelines. Although there is no offence-specific guideline for the offence of assault with intent to rob, it was common ground between the parties, and accepted by the judge, that the Sentencing Council's Definitive Guideline for Robbery Offences, in particular the section devoted to street robberies, was relevant to this case. In terms of that guideline the prosecution then submitted that it was a category 1B offence. The defence submitted that it was between category 1B and category 2B. The judge took the view that it was a category 2B offence. He indicated that he would be prepared to give credit for a guilty plea of between 15% and 20%, because although the plea would be coming very late in the day, it would spare a very vulnerable victim from having to give evidence. By that route the learned judge indicated that in the event of a guilty plea at that stage the maximum sentence he would impose would be one of 3 years 4 months' imprisonment. 14. Mr Tremayne then entered his guilty plea. An alternative count of wounding with intent was ordered to lie on the file. 15. The pre-sentence report referred, as we have indicated, to the very unhappy personal history of Mr Tremayne. It indicated that he was now living with a female partner who had mental health problems and for whom Mr Tremayne acted as carer. The report regarded Mr Tremayne as being unable to comply with an unpaid work requirement because of his care responsibilities. It was however submitted by counsel on Mr Tremayne's behalf that the practical difficulties of his care responsibilities towards his partner could be overcome and should not stand in the way of a community order. 16. The author of the pre-sentence report observed that immediate custody "would have a negative impact on Mr Tremayne's mental health". She assessed his level of risk as being manageable in the community and said that immediate custody "would provide Mr Tremayne with significant barriers in the future which could lead to further offences being committed". She proposed a community order of 24 months' duration with a rehabilitation activity requirement, focusing on victim awareness and alcohol and substance misuse and also combined with a curfew requirement and a financial penalty. 17. On Mr Tremayne's behalf, counsel submitted that his personal circumstances had changed dramatically since the commission of the offence. In the long period which had elapsed he had stopped taking illicit drugs, had cut down on his consumption of alcohol and was now living with and caring for his partner. He had mental health issues of his own for which he had appropriately consulted his general practitioner. Counsel acknowledged that since his commission of this offence, and following his release from the period of recall to custody, Mr Tremayne had been involved in an incident with a neighbour, which had resulted in his pleading guilty on 14 July 2018 to an offence contrary to section 4 of the Public Order Act, for which he was fined. That offence, as we understand it, involved threatening words or behaviour in the course of an incident which, as counsel put it "got out of hand". She submitted that Mr Tremayne was fearful, that if imprisoned he would resort to the use of drugs in order to cope with his sentence, and that on release he would be thrown back into the company of undesirable companions from whom he had succeeded in distancing himself. 18. In his sentencing remarks, at page 12C-G the judge said this: "A sentence of 3 years and 4 months' imprisonment, even though you pleaded guilty on the day of trial, would be justified. I do not consider, in the circumstances, however, that such a sentence would benefit either society on a wider basis or you on an individual basis, and I am going to take an exceptional course of action and sentence you considerably outside the guidelines. I am doing so for those reasons: 1) you have kept out of trouble for the past two years. 2) you seem to have turned your life around, and the drugs and alcohol abuse that was previously a significant factor in your life has come to an end. 3) you are the carer for your partner, who is a lady with considerable needs and, without you, it seems her life would become even more difficult. 4) you have your own mental health difficulties. 5) I consider that it is infinitely better that society should benefit from your rehabilitation rather than you spend a period of imprisonment, where you would get little support on your release and where you may well go back to your past life and way of behaviour." 19. In his submissions to this court Mr Polnay seeks to depart from the submissions of prosecuting counsel below and argues that this case fell into culpability category A of the guideline for two reasons, namely that biting should be equated with "use of a weapon to inflict violence", and that the biting off part of the ear could only be regarded as the "use of very significant force in the commission of the offence". On that view, putting the case into category 1 for harm because of the serious physical and/or psychological harm caused to the victim, Mr Polnay points out that the guideline indicates a starting point of 8 years' custody and a range from 7 to 12 years. In addition, he submits there were a number of serious aggravating features. First, Mr Tremayne has relevant previous convictions. Secondly, he committed this offence when awaiting a court hearing for another matter. Thirdly, he committed the offence whilst on licence. Fourthly, the victim was targeted due to an apparent and actual vulnerability. Fifthly, the offence was committed whilst under the influence of drink and/or drugs. 20. Mr Polnay acknowledges the presence of mitigating features, namely that Mr Tremayne suffers from anxiety and depression, that he had taken steps to try to address his addiction or offending behaviour and that he was the sole or primarily carer for a dependent relative. This personal mitigation, though highly relevant, he submits can carry only limited weight in the face of such serious offending. 21. As to the credit given for the guilty plea, he submits that there was no good reason to allow more than the 10% credit indicated for a plea at trial in the Sentencing Guidelines Council's guideline which was applicable to this case. He reminds us of the case law which states that the fact that a guilty plea has been entered after a Goodyear indication is not in itself a bar to this court finding a sentence to be unduly lenient, even where prosecuting counsel at the court below has failed to state specifically that the Goodyear indication would not be a bar to an Attorney-General's Reference. 22. Mr Polnay submits that even if in this court disagrees with his categorisation of the offence under the guideline, the offence was simply too serious to be met with anything other than a significant custodial sentence. He submits that the judge below was wrong to allow the mitigating factors to outweigh that consideration. 23. Ms Bradberry submits that the sentence was not unduly lenient. The experienced judge properly considered all the relevant factors and was entitled to take the course which he did. Ms Bradberry submits that the case was correctly placed in category 2B. She argues that it is not appropriate to treat biting as the use of a weapon and submits that there was no basis for regarding this as a case of very significance force. The harm caused was plainly serious but not so serious, she argues, as to fall into category 1. Under the Sentencing Guideline Council's guideline a reduction of 10% for a late guilty plea was not a fixed maximum. 24. She reminds us that the purposes of sentencing specified in section 142 of the Criminal Justice Act 2003 are: "(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." She argues that the lengthy period which passed between the commission of the offence and the sentencing hearing enabled the court to see that Mr Tremayne had the capacity to be reformed and rehabilitated. His rehabilitation and reform would be the best protection for society. In that respect it would be more effective than, unhappily, previous prison sentences appeared to have been. She quotes in her written submissions the sentencing remark which we have cited above and argues that a prison sentence would have no benefit in terms of rehabilitation, the reduction of crime or the protection of the public. She emphasises the risk that a prison sentence would cause Mr Tremayne to resort once again to drug use and would give rise to the prospect of homelessness upon release. 25. We have reflected on the able submissions made on both sides. We agree that the Sentencing Council's Street Robbery Guideline is relevant. There is, in our view, room for argument as to the appropriate categorisation of this offence in terms of that guideline and we remind ourselves that at step 1 of the sentencing process the guideline specifically says that: "Where there are characteristics present which fall under different levels of culpability, the court should balance these characteristics to reach a fair assessment of the offender’s culpability." 26. Biting can properly be regarded as the use of a weapon. However, we disagree with Mr Polnay's submission as to the use of "very significant" force. There is, as it seems to us, no evidential basis in this case for coming to such a conclusion.In our view, the judge was entitled to conclude that category B was a fair assessment of the level of culpability. As to the level of harm, it seems to us that there was much to be said for Ms Bradberry's initial submission in the court below that the case fell between categories 1 and 2. We agree with Mr Polnay's summary of the relevant aggravating and mitigating features. We conclude that the learned judge would have been entitled to say that the appropriate sentence, before giving any credit for the guilty plea, would be one of 5 years' imprisonment. In the event, it would appear that the learned judge took a sentence of 4 years' imprisonment before allowing a reduction of 15% for the guilty plea. That was, in our view, very generous to Mr Tremayne. Bearing in mind however that Mr Tremayne was for a time recalled to prison and that he has for a time now been subject to the requirements of the order, we would not think it appropriate, at this stage, to depart from the length of sentence which the judge indicated when giving his Goodyear indication. 27. We turn now to the question of whether in all the circumstances of the case it was properly open to the judge to depart altogether from the category range appropriate under the guideline and to impose a non-custodial sentence as he did. The following factors are, in our judgment, relevant. First, with all respect to the learned judge, we think that it rather overstates the position to say that Mr Tremayne had "kept out of trouble for the past 2 years". He had been recalled to prison for some 6 months of that period and when at liberty he had in fact re-offended, albeit in a substantially less serious way. Secondly, the personal mitigation in this case is undoubtedly significant, and it is much to Mr Tremayne's credit that during his recent period at liberty he appears to have been avoiding drugs. The other side of the coin, however, is that during the period after the commission of the offence he was very far from showing any remorse for his actions. After his initial drunken statements about what had happened, he continued to deny the offence and to contest the proceedings. He was of course entitled to do so. But his decision to do so, in our view, weakens the claim that he has shown himself to be reformed. It must not be forgotten that although in the end the guilty plea spared the victim giving evidence, that was at the conclusion of a very lengthy process during which the victim must have been worrying about the prospect that he would have to give evidence. 28. Thirdly, it would be wrong to think that when released on licence after a custodial sentence Mr Tremayne would be left largely without assistance and that meaningful support for him in addressing his various problems could only be obtained by the imposition of a community order. 29. Fourthly, we agree that imprisonment would be hard for Mr Tremayne and risks testing his current good resolutions beyond his capabilities and we agree that that it would be very hard on his partner. But set against all that is the necessity to have regard to the need to impose appropriate punishment for this very serious offence against a most vulnerable person. 30. We bear very much in mind that the experienced judge had a discretion to exercise. He clearly considered the relevant factors and took care to set out his reasoning. We have hesitated as to whether it is right to conclude that he could not properly have come to the decision he did. We are however driven to that conclusion. The sentence imposed, in our judgment, was simply not adequate to reflect, and to provide just and proportionate punishment for, this very serious offence committed against a vulnerable victim whilst on licence. The personal mitigation available to Mr Tremayne has, as it seems to us, received significant acknowledgement in the length of the sentence indicated by the judge below. We accept, of course, that the rehabilitation of offenders is very important and we do not lightly go behind the decision of a judge who has had that factor in mind. It is however important also not to lose sight of the position of the victim. 31. We conclude that the sentence was unduly lenient. We therefore grant leave to refer, we quash the sentencing below in all its aspects and we substitute a sentence of 40 months' imprisonment. 32. Ms Bradberry, the offender will have to surrender. Are you able to assist us with the relevant police station? 33. MS BRADBERRY: Bridgewater Police Station. 34. LORD JUSTICE HOLROYDE: Bridgewater. 35. MS BRADBERRY: Obviously Mr Tremayne is in Taunton, his instructing solicitor hopefully will pass that message on to him as well as today's proceedings and he will have to get himself there. There is a police station in Taunton and I think if he gets into any difficulties he will just have to present himself there and the police make arrangements to get him to Bridgewater. 36. LORD JUSTICE HOLROYDE: Bridgewater Custody Centre. If we say by 4.00 pm today? 37. MS BRADBERRY: Certainly. 38. LORD JUSTICE HOLROYDE: Thank you very much indeed. Is there anything else Ms Bradberry, Mr Polnay? 39. MR POLNAY: I hesitate to raise it, the administration variation of the statutory surcharge. 40. LORD JUSTICE HOLROYDE: There must in addition be the surcharge in the appropriate sum. Thank you for reminding me. £170. We are grateful to the Associate as always. 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 2944' date: '2018-12-18' judges: - LORD JUSTICE HOLROYDE - MRS JUSTICE ANDREWS 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 494 Case No: 202203116 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT PRESTON HH JUDGE JEFFERIES KC T2021 0713 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/05/2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE HOLGATE and MRS JUSTICE FOSTER - - - - - - - - - - - - - - - - - - - - - Between: PIOTR LASKOWSKI Appellant - and - THE KING Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Simon Csoka KC (instructed by Potter Derby Solicitors Limited ) for the appellant Annabel Darlow KC (instructed by CPS Appeals and Review Unit ) for the respondent Hearing dates: 4 May 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Lord Justice Holroyde: 1. On 30 April 2020 two men exchanged messages via Encrochat phones discussing the supply of controlled drugs. The appellant, who was at that time in the Netherlands, offered to supply 5kg of cocaine to the other man, who was in England. Did such conduct constitute an offence contrary to s4(3) of the Misuse of Drugs Act 1971 of offering to supply a controlled drug of class A to another, in contravention of s4(1)? HH Judge Jefferies KC, sitting in the Crown Court at Preston on 24 March 2022, ruled that it did. The appellant then pleaded guilty to that offence. The appellant now applies for leave to appeal against his conviction on the ground that the judge’s ruling was wrong in law. His application, which involves a point of law not directly covered by previous authority, has been referred to the full court by the Registrar. 2. The appellant contends that the offence was complete when the offer was made in the Netherlands and that the courts in this country accordingly had no jurisdiction to try it. He further contends that, by ruling otherwise, the judge deprived the appellant of any arguable defence. The appellant thus accepts that, save for the issue as to jurisdiction, his conduct satisfied all the legal ingredients of the offence charged and he has no defence. It is therefore unnecessary to go into any further detail about the facts. 3. It was common ground before the judge, and is before this court, that Part 1 of the Criminal Justice Act 1993 (which makes specific provision as to jurisdiction for certain listed offences) does not apply to this offence, and that accordingly the issue must be resolved on common law principles. The judge identified the principal question as being whether the offer must be communicated to another for the offence to be complete: if so, it was completed in the United Kingdom; but if not, it was completed in the Netherlands. In answering that question, the judge considered a number of decided cases, including the decision of the House of Lords, and in particular the dissenting speech of Lord Morris of Borth-y-Gest, in Treacy v DPP [1971] AC 537. He held that the offence requires two actors, the offeror and the offeree, and the effective communication of the offer by the one to the other. He derived support for his view from the words in the statute “offer … to another”. 4. The judge concluded that the offence is only made out when an offer is received, “when it reaches the ears/eyes of another”, and that accordingly the offer in this case was made in England at the point at which it was received. The offer was therefore made within the jurisdiction. 5. For the appellant, Mr Simon Csoka KC submits that the judge’s conclusion was wrong. He submits that the offence is complete when an offer was uttered or sent, a proposition which he submits is supported by the decision of this court in R v Prior [2004] EWCA Crim 1147. It follows, he submits, that the offer in this case was made in the Netherlands, not in England, and no offence was committed in this jurisdiction. 6. Mr Csoka further submits that there is no extra-territorial jurisdiction in relation to an offence of contravening s4(1) of the 1971 Act, a proposition which he says is supported by the decision of this court in R v Hussain (Shabbir) [2010] EWCA Crim 970, [2010] 2 Cr App R 11. Although Mr Csoka accepts that this court in R v Smith (Wallace Duncan) (no 4) [2004] EWCA Crim 631, [2004] 2 Cr App R 17 countenanced the common law giving jurisdiction in this country over inchoate crimes committed abroad, and intended to result in the commission of criminal offences in England, he submits that that is a limited exception to the general presumption against extra-territoriality and that it cannot assist the respondent in this case, not least because the offence of offering to supply a controlled drug is not an inchoate crime. 7. The principal submission of Ms Annabel Darlow KC, for the respondent, is that the judge was correct to find that the offer was made in England. It is not, she submits, necessary for the prosecution to prove that an oral or written offer was in fact heard or read by the person to whom it is made, provided that the offer has been made available to that person to be heard or read. Ms Darlow submits that, in the circumstances of this case, the offer was only made when the relevant message was received by the other man and available to be read by him. That occurred in England, not in the Netherlands. The judge therefore did not need to consider whether the court had jurisdiction over an offer made in the Netherlands. 8. Ms Darlow submits in the alternative that, if the judge did fall into error, the court nonetheless had jurisdiction because a substantial measure of the activities constituting the offence took place in England. She relies in this regard on the principle endorsed in R v Smith (Duncan Wallace) (No 4) . 9. We are grateful to both counsel for their written and oral submissions, which were of a high quality. We have summarised their detailed arguments very briefly, but we have in mind all the points they put forward and we have considered all of the case law to which they referred. 10. We start by setting out the terms of s4 of the 1971 Act. It provides: “ 4 Restriction of production and supply of controlled drugs. (1) Subject to any regulations under section 7 of this Act, or any provision made in a temporary class drug order by virtue of section 7A, for the time being in force, it shall not be lawful for a person – (a) to produce a controlled drug; or (b) to supply or offer to supply a controlled drug to another. (2) Subject to section 28 of this Act, it is an offence for a person – (a) to produce a controlled drug in contravention of subsection (1) above; or (b) to be concerned in the production of such a drug in contravention of that subsection by another. (3) Subject to section 28 of this Act, it is an offence for a person – (a) to supply or offer to supply a controlled drug to another in contravention of subsection (1) above; or (b) to be concerned in the supplying of such a drug to another, in contravention of that subsection; or (c) to be concerned in the making to another in contravention of that subsection of an offer to supply such a drug.” 11. In Hussain (Shabbir) it was held that a supply of drugs to another, if it is to fall within the 1971 Act, must be a supply in this country. That principle, which is based on the presumption that a criminal statute has territorial effect, was stated in general terms. Accordingly, notwithstanding that the offence charged in that case was one of possession of a controlled drug with intent to supply, contrary to s5(3) of the Act, it applies equally to the offence charged in the present case. However, whilst Hussain (Shabbir) is authority that the supply must be in this country, we do not accept Mr Csoka’s submission that it is also authority that the offer must made be in this country. 12. Further, it is in our view clear that the words used in both s4(1)(b) and s4(3)(a) refer to supply to another: they are not to be read as if they said “offer to another”. The judge, with respect, was therefore wrong to support his conclusions on the basis that the Act referred to “offer to another”. 13. With those considerations in mind, we would state the ingredients of the offence charged in this case as follows: s4 of the Act requires an offer; it must be an offer to supply to another a controlled drug; and the offered supply must be a supply in this country. The conduct concerned in such an offence is, accordingly, conduct involving an offer to make a controlled drug available in this country. 14. What, then, is required to prove an offer? In our view, what must be proved is that an offer is made to one or more persons in a manner which is capable of being heard (if oral) or read (if written) by the person(s) to whom it is sent, whether or not any person does in fact hear or read it. By way of obvious examples, words spoken quietly to an empty room, or words spoken to the winds, or a text message composed but not sent, could not amount to a offer; but a text message, or bulk text messages, composed and sent to one or more mobile phones can amount to an offer, whether or not there is evidence that anyone actually read the message. It will be a question of fact in each case whether an offer is made. There will no doubt be cases in which the facts and circumstances lead to the conclusion that there has been an attempt to commit the offence, but not the commission of a completed offence. 15. This analysis of what must be proved is consistent with the decision of this court in R v Prior [2004] EWCA Crim 1147, in which Auld LJ said at [24], with reference to an oral offer, that the important thing was the effect of the words, they way in which they were said and any other relevant circumstances apparent at the time to the person to whom the offer was made. Those matters plainly cannot be considered if the offer is not capable of being heard or read. 16. The court in R v Prior [2004] emphasised more than once that it is a matter for the jury to determine whether what took place amounted in ordinary parlance to an offer to supply a controlled drug: it is not necessary that the requirements of the law of contract be satisfied. If it did amount to such an offer, the fact that the offer was not genuine – in the sense that the person making it did not in fact intend to supply a controlled drug – is irrelevant. 17. Applying those principles, the appellant made his offer when he composed and sent the relevant message, whether or not it was read by the other man. We therefore accept Mr Csoka’s submission that the judge fell into error in ruling that the offer was complete only when it “reached the eyes” of the other man. It follows that the appellant was as a matter of fact in the Netherlands when he made the offer. 18. Was it nonetheless an offence which the courts of this country had jurisdiction to try? The starting point is the general principle of interpretation that there is a presumption against the extraterritorial application of a criminal statute. That presumption may however be displaced by the express terms of a statute or by necessary implication; and in relation to the latter, the mischief against which the statute is aimed, and the public interest, are important considerations. 19. In Treacy v DPP the appellant, in the Isle of Wight, sent a blackmail letter to a person in Germany. The House of Lords, by a majority of 3 to 2, held that the offence of blackmail had been committed when the appellant wrote and posted his letter. Lord Diplock, one of the majority, began his speech by emphasising that the question was not whether the English court had jurisdiction to try the appellant on that charge, but whether the facts proved against the appellant amounted to a criminal offence under the relevant statute. He went on to say that the words used in section 21 of the Theft Act 1968 were quite general and could be satisfied wherever the unwarranted demand was made: if, therefore, there was to be implied any geographical limitation, it could only be derived from broader considerations of the purpose of the statute. At pp561-562, Lord Diplock said: “The Parliament of the United Kingdom has plenary power, if it chooses to exercise it, to empower any court in the United Kingdom to punish persons present in its territories for having done physical acts wherever the acts were done and wherever their consequences took effect. When Parliament, as in the Theft Act 1968 , defines new crimes in words which, as a matter of language, do not contain any geographical limitation either as to where a person’s punishable conduct took place or, when the definition requires that the conduct shall be followed by specified consequences, as to where those consequences took effect, what reason have we to suppose that Parliament intended any geographical limitation to be understood? The only relevant reason, now that the technicalities of venue have long since been abolished, is to be found in the international rules of comity which, in the absence of express provision to the contrary, it is presumed that Parliament did not intend to break. It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if we were to punish persons for conduct which did not take place in the United Kingdom and had no harmful consequences there. But I see no reason in comity for requiring any wider limitation than that upon the exercise by Parliament of its legislative power in the field of criminal law. There is no rule of comity to prevent Parliament from prohibiting under pain of punishment persons who are present in the United Kingdom, and so owe local obedience to our law, from doing physical acts in England, notwithstanding that the consequences of those acts take effect outside the United Kingdom. Indeed, where the prohibited acts are of a kind calculated to cause harm to private individuals it would savour of chauvinism rather than comity to treat them as excusable merely on the ground that the victim was not in the United Kingdom itself but in some other state. Nor, as the converse of this, can I see any reason in comity to prevent Parliament from rendering liable to punishment, if they subsequently come to England, persons who have done outside the United Kingdom physical acts which have had harmful consequences upon victims in England. The state is under a correlative duty to those who owe obedience to its laws to protect their interests and one of the purposes of criminal law is to afford such protection by deterring by threat of punishment conduct by other persons which is calculated to harm those interests. Comity gives no right to a state to insist that any person may with impunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state. It may be under no obligation in comity to punish those acts itself, but it has no ground for complaint in international law if the state in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts.” 20. Lord Diplock’s statements were followed by this court in R v Smith (Wallace Duncan) (No 1) [1996] 2 Cr App R 1. The appellant appealed against convictions for offences of obtaining by deception on the ground that, although the deception had taken place in London, the obtaining (said to be the essence of the offence) had taken place in the USA. The court noted that the transfer of funds to a bank in New York was “the only feature of the circumstances which occurred outside England”. At pp19-20, Rose LJ said: “In our judgment it would be astonishing if the English courts did not have jurisdiction in such a case and certainly there would be nothing inimical to international comity in the English courts assuming jurisdiction. Questions of jurisdiction, though involving substantive law, contain a strong procedural element. There have in recent years been significant advances in electronic communications both within and across national boundaries. These have brought added sophistication to the ways in which offences involving frauds are committed. The reliance of international banking on ever developing and advancing communications technology has added new weapons to the armoury of fraudsters, especially those whose purpose it is to perpetrate fraud across national boundaries. If the issue of jurisdiction in cases of obtaining is to depend solely upon where the obtaining took place it is likely that the courts, and especially juries, will be confronted with complex and, at times, obscure factual issues which have no bearing on the merits of the case. This Court must recognise the need to adapt its approach to the question of jurisdiction in the light of such changes. In Liangsiriprasert v. Government of the United States of America (1991) 92 Cr.App.R. 77, 89, [1991] 1 A.C. 225, 250A , Lord Griffiths, giving the opinion of the Privy Council in a conspiracy case, having referred to the judgment of the Chief Justice of Hong Kong, Roberts C.J. said: “The passage in Treacy v. D.P.P. (1971) 55 Cr.App.R. 113, [1971] A.C. 537 to which Roberts C.J. refers is the celebrated discussion by Lord Diplock of the bounds of comity and the judgment of La Forest J. in Libmen v. R. (1985) 21 C.C.C. (3rd) 206 contains a most valuable analysis of the English authorities on the justiciability of crime in the English courts which ends with the following conclusion at p. 221: ‘The English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.’” Lord Griffiths also said at p. 90 and p. 251C: “Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England . ” 21. In R v Smith (Wallace Duncan) (No 4) a constitution of this court presided over by Lord Woolf CJ held that the court in R v Smith (Wallace Duncan) (No 1) had been entitled to develop the law in the way it did in order to meet the needs of contemporary society. At [56], the court summarised Rose LJ’s reasoning as including the following: “(ii) For the policy reasons which he identifies, particularly in relation to complex fraud, where there are no reasons of comity which require a different approach, when substantial activities constituting a crime take place in England the court here should have jurisdiction in accordance with the approach indicated by the Chief Justice of Hong Kong, Roberts CJ. (iii) Thus as to jurisdiction, there does not have to be a distinction in relation to the principles of jurisdiction between different crimes. Conspiracy in inchoate crimes and obtaining by deception can be governed by the same general, less rigid approach.” 22. Having considered other, conflicting, decisions, the court followed the judgment in R v Smith (Wallace Duncan) (No 1) . In doing so, Rose LJ reiterated, at [61], the point made at [56(iii)]: “… it does not necessarily follow that because the broader approach has been developed in connection with conspiracy and inchoate offences the same process of development would not be appropriate in cases involving offences of obtaining by deception. The opinion of Lord Griffiths in Liangsiriprasert extending the jurisdiction in relation to conspiracy should not be summarily brushed aside as of no relevance. The message of his opinion as a whole is that the common law must evolve to meet current circumstances.” 23. The “substantial measure of the activities constituting a crime” test explained by Rose LJ was again followed by this court in R v Sheppard and Whittle [2010] EWCA Crim 65, [2010] 2 Cr App R 26. That case related to a different kind of offence: the appellants had been convicted of publishing material intending to stir up racial hatred, contrary to s19 of the Public Order Act 1986. They had argued that, although their activities had occurred in England, the written material had been uploaded to a website hosted in California, and that the publication therefore fell outside the jurisdiction of this country. Dismissing the appeal, the court held that there was nothing in the 1986 Act to exclude the rule that the Crown Court had jurisdiction to try a defendant if a substantial measure of the activities constituting the crime took place in England. That test accorded with the purpose of the Act, namely to restrict the publication of material intended to stir up racial hatred, and reflected the practicalities of the case where almost everything relating to it had occurred in England. 24. Mr Csoka has pointed to distinctions between the facts and circumstances of each of those cases and the facts and circumstances of the present case. We accept that there are differences. In our view, however, they do not affect the principle which those cases recognise. We see no reason why that principle should not extend to a case such as the present. We have considered Mr Csoka’s submission that the extraterritorial jurisdiction provisions of the Criminal Justice Act 1993 were enacted precisely because of the territorial limitations of the common law. We are not, however, persuaded by that submission, given that in the years since the 1993 Act came into force R v Smith (Duncan Wallace) (No 4) and R v Sheppard and Whittle have developed the common law in the way we have summarised. 25. We are therefore satisfied that it is necessary and appropriate, in circumstances such as arise in this case, to consider the purpose of the statute concerned and the mischief at which it is aimed. The purpose of the 1971 Act is the control of dangerous or harmful drugs, and the mischief at which it is aimed is, or includes, the supply and possession of such drugs in the United Kingdom. The supply of drugs inevitably involves a chain of transmission by which controlled drugs pass from their source to a user in the United Kingdom. The purpose of the statute is not achieved, and the mischief at which it is aimed is not met, if the courts of this country are denied jurisdiction at one stage of that chain of transmission. As Lord Thomas CJ said in R v Martin [2014] EWCA Crim , [2015] 1 WLR 588 – “The word “supply” is a broad term. It does not by any stretch of the imagination result in a confinement to the expressions ‘actual delivery’ or ‘past supply’. It refers to the entire process of supply.” 26. In our judgement, the policy principles underlying the 1971 Act apply throughout that process. Mr Csoka acknowledged that a person who engaged abroad in a conspiracy to supply drugs into this country could in principle be tried in this country for that conspiracy; and he was prepared to accept that activities in another country might be capable of constituting an offence of attempting to supply a controlled drug in the United Kingdom. That being so, we can see no reason why a different approach should be taken to the antecedent stage in the process of an offer to supply. The anomalous consequences of drawing such a distinction are illustrated by the present case: the appellant was originally charged with an offence of conspiracy to supply a controlled drug, but the view was taken (for reasons which were not made clear to us) that such a charge was evidentially weak and that it would be preferable to charge the appellant’s conduct as an offence of offering to supply. 27. It is also necessary and appropriate to reflect on whether any considerations of international comity militate against the courts of this country trying a defendant for activities abroad such as occurred here. Given that the offer was an offer to supply controlled drugs in the United Kingdom, we see no reason why any such considerations should militate against the courts doing so. On the contrary, we would expect every state to wish to be able to prosecute those whose conduct is aimed at bringing dangerous drugs into its territory. Moreover, all states have an interest in trying to stop the international trade in dangerous drugs. 28. We are therefore satisfied that, if the judge had held that the offer was made when the appellant was in the Netherlands, he would then have had to consider whether a substantial measure of the activities constituting the crime charged took place in the United Kingdom. 29. If the judge had considered the “substantial measure” test, we have no doubt he would have concluded that it was satisfied in the circumstances of this case. We regard the following features of the case as important considerations. The mischief at which the 1971 Act is aimed is, as we have said, the unlawful possession and supply of controlled drugs in the United Kingdom. The appellant has accepted that his offer was an offer to supply cocaine in England. The harm which would be caused by the offered supply of controlled drugs would therefore be suffered in the United Kingdom. The man to whom the offer was made was as a matter of fact also in England. In those circumstances, a substantial measure of the activities constituting the crime did in our judgement take place in England. 30. Although the offence was committed when the relevant message was composed and sent from the Netherlands, it would in our view be artificial to regard the intended destination of the drugs as irrelevant. We reiterate that the purpose of the Act is the control of dangerous drugs, in the United Kingdom, and the making of an offer to supply controlled drugs in the United Kingdom is part of the conduct of the offence created by s4(3). The appellant did not, for example, offer to supply controlled drugs in the Netherlands. It would be equally artificial, and wrong, to focus only (as Mr Csoka invites us to do) on the moment when the relevant message was sent, ignoring the fact that the message was an offer to supply drugs in England. The artificiality becomes the greater when one takes into account Ms Darlow’s submission that in text-based communications a message may be received at almost the same time as it is sent. Such artificiality could lead to absurd results. It could deprive the courts in this country of jurisdiction to try conduct which would have its criminal and harmful consequences in this country, and could do so regardless of whether the country from which the message was sent would be willing or able to prosecute the accused. Further, we see no basis on which it could be said that recognising the jurisdiction of the English court in these circumstances would be contrary to principles of international comity. 31. For those reasons, we are satisfied that, although the offer was made from the Netherlands, the “substantial measure” test was satisfied and the Crown Court had jurisdiction. When the offer was made from the Netherlands, the conduct of offering to supply controlled drugs in the United Kingdom was complete and the offence contrary to s4(3) of the Act was committed. Accordingly, whilst we have respectfully found that the judge fell into error in his reasoning, his decision was correct. The conviction is accordingly safe, and this appeal is dismissed.

```yaml citation: '[2023] EWCA Crim 494' date: '2023-05-12' judges: - LORD JUSTICE HOLROYDE - MRS JUSTICE FOSTER ```

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Case No: 2000/00871/Z4 Neutral Citation No: [2003] EWCA (Crim) 1240 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM JUDGE HYAM Royal Courts of Justice Strand, London, WC2A 2LL Friday 2 nd May 2003 Before : LORD JUSTICE SCOTT BAKER MR JUSTICE PITCHERS and JUDGE RICHARD BROWN - - - - - - - - - - - - - - - - - - - - - Between : Terence Robert Smith Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Henry Blaxland Q.C and Mr R. H. Christie for the Appellant Mr Simon Spence for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown Copyright © Lord Justice Scott Baker: 1. The appellant, Terence Robert Smith, appeals against his conviction for murder before Judge Hyam and a jury in the Crown Court at Norwich on 13 October 1997. There was a co-defendant, Harry John Groves, who was convicted of the same offence on the same occasion. At the time of the offence the appellant was 35 and Groves was 17. The basic facts 2. The victim was Simon Shannon. His body was found at his home, 2, Groom Park, Clacton-on-Sea on the morning of Saturday 6 May 1995. He had been strangled, stamped upon and had his throat cut. There were multiple injuries. He, like a number of others connected with the case, was a practising homosexual. The appellant was bisexual, a fact that he admitted in interview. It was the Crown’s case that the appellant and Groves went to Shannon’s house on the night of 2/3 May 1995, obtained access and together killed him. The appellant’s case was that he was not present, a contention supported by the fact that there was no forensic evidence to connect him with the crime. The Crown’s case as to the time of death was supported by evidence that milk was delivered on Wednesday 3 May about 6 am and was still uncollected when there was a further delivery on Friday 5 May. When the milk still had not been collected the following morning and the milkman saw blood splashes on looking through the letterbox, the police were called. There was no sign of forcible entry and the body of Shannon was flat on its back in the lounge. Courtman’s account 3. Paul Courtman was a crucial prosecution witness. He lived at Beach Way, Jaywick, Clacton with Steven Sparkes. They had been together for ten or eleven years. Courtman had known the deceased for two years and saw him regularly. Their relationship was platonic. He also knew the appellant whom he had met in the Summer of 1994. He regarded him as a friend. Their relationship at that time was platonic, although this changed to a degree in about July 1995. He met Groves a couple of months after he had met the appellant and saw him regularly but not as often as the appellant. Their relationship was platonic. 4. During the first week in May 1995 the appellant’s wife went on holiday to Bognor Regis. On 2 May Courtman spent the evening drinking at his home with the appellant and Groves. Sparkes was there too. Sparkes and the appellant were drinking heavily, Groves more modestly. Groves was not happy and was talking about Shannon and homosexuality. The appellant would have known about Shannon’s inclinations but Groves probably not as he had never met him. Groves mentioned his unhappy childhood and that his father was a pervert. He appeared angry. The conversation about Shannon included a reference to a pornographic book and some photographs that he possessed. Courtman said they seemed undecided whether Shannon was a pervert. Groves was unhappy at the prospect that he was, but the appellant did not seem so affected. The conversation lasted into the early hours of Wednesday 3 May. Groves and the appellant left about 2.15am saying they were going home. Between 4.30 and 5am they were stopped by the police on the way back to Jaywick. The Crown’s case was that the murder had been committed in the intervening period and that they had remained at Shannon’s house for some time after they had killed him. They told the police when they were stopped that they had been seeing some old tarts in London, which was a lie. 5. On Thursday 4 May about 8.30am Groves visited Courtman and they sat in the Garden. He told Courtman that something terrible had happened and Courtman had to ask him several times what he meant. He then told him that when they had left his house on the Wednesday morning they had gone to Shannon’s and killed him. Groves said that when they arrived one of them said they had an urgent message from ‘Paul’ (Courtman) and the appellant asked to use the lavatory. Whilst he was away Shannon showed Groves some pictures which Groves found offensive. The appellant then appeared wearing surgical gloves and nodded towards Groves. The appellant placed a wire around Shannon’s neck and pressed a knee into his back. Shannon appeared to wave goodbye. Groves then went crazy, picked up a blunt stanley knife and cut him. He did so with about five strokes and then the appellant told him to stop as he was already dead. He fell to the floor and Groves jumped up and down on his chest, kicking him until the appellant pulled him off. Groves told Courtman a glass top table was knocked over during the event. 6. At this point the appellant arrived at Courtman’s house and he too explained what had happened. He was concerned about the possibility of fingerprints being found because one of his gloves had split. Also, the police had stopped them shortly after their departure. Courtman only half believed them but they were very solemn and appeared frightened. Courtman agreed to keep it quiet and even suggested that no one else be told, especially Sparkes, since he was mentally unstable and had been receiving psychiatric treatment since the age of fifteen. Courtman carried on as if nothing had happened and went ahead with a barbecue that he had planned. 7. Courtman saw Groves and the appellant again on the Friday morning. Groves, in particular, was still worried about the possibility of fingerprints being found. Courtman suggested the door should be wiped clean with bleach and then pretended to go and do it. There was some talk about an alibi and what they would say if their fingerprints or other evidence was found connecting them with the scene. 8. Courtman had had oral sex with the appellant on three occasions but found it daunting because he was married. This occurred in the period between the murder and the arrests. Courtman said the appellant and Groves told Crossland (of whom we shall have a good deal more to say in a moment) and Sparkes that the three of them were in a pact. Sparkes’s account 9. Sparkes confirmed that he and Courtman had been living together for many years. It was a homosexual relationship but had fallen off since Crossland had come on the scene. On 2 May, at a drinking session, there was a discussion about whether various people were homosexual. Courtman implied Shannon possessed pictures of young boys. Groves said he would like to meet him. Courtman tried to dissuade him, because it was so late. Sparkes, who was quite drunk, fell asleep on the floor. When he awoke about 2am the appellant and Groves had gone. He could remember, despite the drink he had had, Groves saying “I wouldn’t mind going round.” On the Sunday he learned about the murder. Courtman told him what had happened and he was distraught. The appellant told Sparkes he had not told him about the murder because he did not think he would be able to cope with it. He counted out six people who knew about it. He was told the appellant had strangled him and Groves had cut his throat and that if everyone kept quiet things would be all right. 10. Over the next few days the appellant came and went. At one point the murder was mentioned on the news and the appellant said, “he deserved it, he was a nonce.” They spoke about the murder more than once. Groves mentioned cutting his throat and the appellant demonstrated with his hands that he had strangled him. Sparkes did not tell the police anything at that stage because he feared for his and Courtman’s safety. Groves, he said, showed remorse and concern for what he had done. The appellant’s account 11. The appellant, Courtman, Sparkes and Groves were arrested and interviewed on 11 September 1995 and the days following. On 14 September the appellant and Groves were charged with Shannon’s murder. The appellant gave evidence at the trial. His defence was that he had played no part in any attack. He was not present at the scene. The killer was either Courtman and/or a friend of his. Groves was lying because he was frightened of Courtman’s friend. He had spent the Tuesday evening at Courtman’s and left with Groves between 11.30pm and 1.30am on the Wednesday morning. They walked along the seafront and when they arrived at this house he had a beer and Groves a cup of tea. He awoke about 4.30am having urinated in the chair. He decided to visit his wife and set off in the car. On the way they were stopped by the police. He could not explain why he had lied to the police. He did not have a good word to say about the deceased, who he knew was a homosexual, but he had not killed him. Courtman, on the other hand, had a motive because he was jealous over Shannon’s attraction to Crossland. Sparkes was an ineffectual individual who was in Courtman’s pocket and only said what Courtman told him to say. Groves’ account 12. Groves too gave evidence in his own defence. His case was that he, Sparkes and the appellant had all been at Courtman’s house. The other three were all drunk. There was a conversation, but he could not remember what it was about. About 1am the appellant said he was leaving and said to Groves, “you cunt, come with me.” Groves went with him but did not know what he had done wrong. He was tired and wanted to go home, but the appellant issued directions to an address in Groom Park. Groves suggested that he should wait in the car but the appellant held a knife to his throat and said, “don’t fucking argue with me, your coming in.” He was only seventeen at the time. He was sober. The appellant knocked on the door and said he had got a message from Paul (Courtman). Shannon invited them both in. There followed a vicious attack by the appellant on Shannon. Groves, who took no part in it, was told by the appellant he would be killed if he moved. Groves described the assault in some detail. It involved putting a wire around Shannon’s throat from behind and saying, “try this for size”. The appellant then kicked and stamped on him, produced a knife and cut him in the throat region about three times. Groves asked if he could leave, but the appellant refused. The appellant put his arms under Shannon’s upper body and dragged him into the living room coming out about 30 seconds later. Groves was throughout no more than a bystander. He asked the appellant why he had done it and the appellant said it was because Shannon had made a remark about Adam (Crossland) being beautiful which made him angry. 13. They left and discussed what the police were to be told. After they had left they were stopped by the police. He agreed the appellant told him to keep his mouth shut and say they had been to London to pick up a couple of tarts. He was in a daze but he gave his correct name to the officers. Before he went home, the appellant threatened him saying, “remember your mum and your family will be dealt with in the same way as Shannon.” He could not explain the wounds to Shannon’s abdomen which, according to the pathologist’s evidence, had been caused about 30 minutes after death. Questioned about the timing, he denied they had been in the deceased’s home for a substantial period of time. 14. On the following day, Thursday 4 May, he visited Courtman and told him what he had been told to say. He said he had been the one who had cut Shannon’s throat but gave no more details. Courtman gave the impression he knew more and seemed to know what was going on. He even seemed to glory in it. The pathologists’ evidence 15. The pathological evidence was that there were multiple injuries including a ligature compression of the neck applied from behind. There was injury to the liver that was most likely to have been caused by stamping. There were no defensive injuries and although it was not a hundred percent certain the deceased had not been concussed and all the injuries caused by one person, it was highly likely that two or more people were involved. Crossland 16. As will have become apparent, Courtman and Sparkes were key witnesses for the Crown because of their evidence of the confessions that the appellant and Groves had made to them. Potentially important evidence was also due to be given by Adam Crossland. The trial was first listed to be heard in February 1997 but was adjourned because Groves tried to commit suicide. Following this, he was assessed by two psychiatrists whose reports were provided to those representing the appellant well before the trial in September. Crossland had made a witness statement on 13 September 1995 similar to that of Courtman and Sparkes. In it he said he had known Courtman for just over two years. He was a homosexual but he did not think Sparkes was. He met Shannon who fancied him and would sit close to him and touch him. He liked the appellant and they got on well together. The appellant became very upset about certain things Shannon said about Crossland and threatened to kill him. When Shannon eventually accepted Crossland did not want anything to do with him he turned his attention to a boy of ten or eleven which made the appellant even angrier. 17. On Saturday 6 May Crossland was at Courtman’s when he saw on the television that Shannon had been murdered. He told Courtman he thought Groves and the appellant had done it and Courtman gave Crossland the impression he knew who had committed the murder. Crossland kept pressing Courtman who eventually said the two of them had come round to his house and told him they had done it. A week later on the Saturday he saw the appellant leaning on the sea wall on the steps by the post office at the end of Beach Way. During the ensuing conversation the appellant said: “Shannon won’t be bothering you any more,” that he was dead and that he and Groves had done it. The appellant then described the killing in considerable detail. After the killing, the two of them had gone to the appellant’s home, had a shower and put their clothes into black plastic sacks. On Wednesday 3 May the appellant had given Crossland a lift. Crossland had difficulty in getting into the car because there were two plastic bin liners one on top of the other. The appellant told Crossland he had done the killing for him. There was another occasion in Courtman’s garden with the appellant, Groves, Sparkes and Courtman when the appellant said the police would be around soon and everyone promised not to say anything. 18. Crossland made a further statement on 21 September 1995 in which he referred to a sexual relationship with Courtman which he had been too embarrassed to mention earlier. He also said that the appellant had told him where he had disposed of the knife and the gloves used in the killing, and also that there was a pact of silence between the appellant, Groves and himself which the appellant had said was marked by tattoos on the appellant and himself. 19. Before the adjourned trial, however, he indicated he was put under pressure by Courtland to give false evidence. On 14 August 1997 he wrote to the Crown Prosecution Service expressing his reluctance to give evidence. In the letter which he said he had been told by his solicitor to write he said he did not want to be a prosecution witness and go to court. He continued: “I don’t feel I can cope with it. I have problems with my memory and did and said many stupid things under pressure because I was told by Mr Courtman and it was all over two years ago. Anything I have to say is second or third hand hearsay and I don’t want to be charged with perjury. Also, I could damage your case. I have broken away from Mr Courtman’s control now and I am trying to come to terms with what has happened to me.” 20. On 9 September 1997 Crossland made a lengthy statement in which he alleged sexual abuse by Courtman since the age of thirteen. At the time of the murder he had just passed his sixteenth birthday. He described in the statement how Courtman had moved to Somerset sometime after the murder and that he kept in touch by telephone before running away from home and going to live with Courtman and Sparkes in Courtman’s flat in Williton in Somerset. In August 1996 Crossland met a girl with whom he formed a relationship. Contact with Courtman became less and eventually ceased altogether. Crossland did not deal in this statement with events relating to the murder of Shannon. The prosecution decided not to call Crossland and he was made available to the defence. 21. This statement of 9 September 1997 was available to the defence at the trial, but the prosecution declined to accede to a defence request to re-interview Crossland with a view to establishing his new account of the core events that he had witnessed. There was, however, no reason why the defence should not have done so and indeed he may well have been interviewed by the solicitors who were then acting for the appellant. 22. On 12 September 1997 Courtman gave evidence at the trial. Two days earlier on 10 September, counsel for Groves and the appellant both raised with the judge the question of calling Crossland. The judge ruled that the Crown need not call him and nor was it necessary to postpone the decision until such time as the prosecution had interviewed Crossland to ascertain what he meant when he said he could damage the prosecution’s case. The judge took the view that if Crossland was called it was highly likely he would have to be treated as hostile and that Counsel for the Crown was fully entitled in the exercise of his discretion, as described by Schiemann L.J. in R v Brown and Brown [1997] 1CAR 112, 114B, to decide not to call him but make him available to the defence. 23. Kennedy L.J. in R v Russell-Jones [1995] 1Cr App R 538 helpfully set out seven principles for dealing with the Crown’s obligations to call witnesses. These are: “(1) Generally speaking the prosecution must have at court all the witnesses named on the back of the indictment (nowadays those whose statements have been served as witnesses on whom the prosecution intend to relay), if the defence want those witnesses to attend. In deciding which statements to serve, the prosecution has an unfettered discretion, but must normally disclose material statements not served. (2) The prosecution enjoy a discretion whether to call, or tender, any witness it requires to attend, but the discretion is not unfettered. (3) The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial. (4) The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness’s evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say “incredible”, then his evidence cannot help the jury assess the overall picture of the crucial events; hence it is not unfair that he should not be called. (5) It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a particular witness has to say is at best marginal. (6) The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others. (7) A prosecutor properly excising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case. No sensible rule of justice could require such a stance to be taken.” He went on to say: “Plainly, what we have said should not be regarded as a lexicon or rule book to cover all cases in which a prosecutor is called upon to exercise this discretion. There may be special situations to which we have not adverted; and in every case, it is important to emphasise, the judgment to be made is primarily that of the prosecutor, and, in general the court will only interfere with it if he has gone wrong in principle.” 24. In our view the judge was entirely correct in his ruling. We reject the appellant’s submission that the Crown could not say whether Crossland was worthy of belief without taking any further statement from him. We are, however, bound to say that we are somewhat surprised that the prosecution did not take a further statement from him following his letter of the 14 August 1997 to ascertain why he might damage the prosecution’s case and what he had to say about events that related directly to the killing. Had they done so, it is likely that they would have been given the account we have heard and which was in our judgment plainly not credible. 25. At the trial the appellant’s case was that the murderer was Courtman or a friend of his and that Groves was lying because he was afraid of him. It was put to Courtman that he was not a witness of truth and that he had been having a sexual relationship with Crossland since Crossland was thirteen (as Crossland had said in the statement he had recently made). Courtman denied this, saying it only began shortly before Crossland’s sixteen birthday. 26. Mr Blaxland Q.C. for the appellant relies on the fact that after the trial Courtman was prosecuted on the basis of the truth and reliability of Crossland’s allegations. Thus, he argues, the prosecution accepted Courtman was lying on this issue. In the event, however, pleas were entered by Courtman that were consistent with his admissions at the murder trial and the one plea of guilty was accepted by the Crown. In our judgment there is no substance in the suggestion that the Crown was blowing hot and cold as to the credibility of Courtman. 27. The core of the appellant’s ground of appeal with regard to Crossland is that if the jury had heard his evidence doubt would have been thrown on the reliability of Courtman’s account and the conviction is therefore unsafe. 28. We heard further evidence from Crossland de bene esse. The thrust of his fresh evidence is to be found in his affidavit of 19 March 2001and three subsequent statements. In summary what he told us was this. His statement of September 1997 about his relationship with Courtman was true. The appellant had never confessed to him and he told the police what Courtman had told him to say. He was obsessed with Courtman at the time and would have done anything he had told him to. What he had said about disposal of the knife and gloves and the clothes in the bin bags was all untrue. Nor was it true that the appellant had asked him for oral sex; Courtman had told him to say this. 29. The story Courtman told him to tell was that the appellant had committed the murder with Groves. He was not told to say he had heard Groves admitting it as well. He said no one had encouraged him to write the letter saying he did not want to go to court. We note, however, that in the letter he uses the expressions not readily used by a sixteen year old. Courtman did not tell him to say when and where the killing had taken place and he never had any conversation with the appellant by the sea wall as he described in his first statement. 30. Each member of the court was entirely satisfied that Crossland was not telling us the truth. He was, quite simply, not a credible witness. The Court noted in particular the detail in which in his first statement he had described such matters as talking to the appellant by the sea wall by the end of Beach Way when the appellant told him that Shannon would not be bothering him any more and also Crossland’s detailed account of the disposal of various items. 31. Had Crossland given evidence for the Crown at the trial the probability is that he would have been treated as hostile and cross examined on his earlier statements. Had he been called by the defence, a course which for obvious reasons the defence chose not to take, he would have been cross examined on his earlier accounts. In either case it would have been disastrous for the appellant’s case. 32. In our judgment, the prosecutor’s judgment was correctly exercised in this case and the judge was correct in the ruling that he gave. Crossland was plainly not credible, a matter emphasised to this Court by his evidence in the course of this appeal. The reliability of Groves 33. The second main line of attack on the safety of the conviction relates to the evidence of Groves. In this regard the appellant seeks to rely on the fresh evidence of Dr Chesterman who was asked to review the notes and records relating to Groves. His report is dated 27 September 2002. In the event there was no need to call Dr Chesterman because the Crown do not dispute the substance of his evidence. In summary the appellant’s case is that if the jury had known what is now known about Groves and what he subsequently told various psychiatrists and others as evidenced through their reports, they would not have convicted the appellant. Put shortly, Mr Blaxland’s point is that if the jury had known that Groves had a personality disorder and had engaged in a fantasy life since the age of thirteen, they may have put his evidence on one side when considering the case against the appellant. The key issue, he submits, is whether what Groves had to say about Smith’s involvement was reliable. 34. There is a good deal of material that postdates the conviction. In it Groves gives a number of accounts. Mr Spence, for the Crown, submits that the appellant cannot pick and choose those parts that might help his case. At one time, in an affidavit, Groves sought to take sole responsibility for the murder, but evidence emerged that this may have been in exchange for financial reward. The appellant intended to call further evidence from Groves himself to establish that he had committed the murder alone. Indeed, when the appellant was given permission to appeal, the single judge directed Groves to attend the hearing before the full court. But this course was abandoned for obvious reasons. Letters written by Groves from Gartree prison to the appellant’s wife and father were intercepted. The letter to the appellant’s wife included the following passage: “I don’t think that both me and Terry will get out of this sentence on appeal. But if Terry’s Dad is prepared to do something for me in the next two weeks I will make a statement to Terry’s solicitor saying that he wasn’t even there when the murder happened. I will take full responsibility for what happened even though you and me both know full well Terry is as guilty as I am.” 35. It has to be kept in mind that it is in the interests of a convicted killer who committed the offence to take responsibility for it as this is likely to assist him in eventually obtaining parole. 36. The pathologist’s evidence was strongly in favour of more than one person having participated in the killing. The new material about Groves’s state of mind and what he said subsequently to psychiatrists and others would have reinforced the jury’s view that Groves was involved in the killing. Groves’s evidence that, although present he was not involved, was of course rejected at the trial. Even if one accepts the truth of what he was telling the psychiatrists about having suffered fantasies in the past, it goes to his involvement and not to the identity of the other killer. It is, in our judgment, complete speculation to say that the jury may have taken a different view about the appellant’s involvement. There is no reason why they should. There is nothing that would have impinged on his assertion that the other man present was the appellant. He rejected the suggestion that Courtman could have killed Shannon and in interview the appellant rejected the suggestion that Courtman could have killed anybody. 37. Furthermore, the state of mental health of Groves was not something that was entirely outwith the jury’s knowledge (see reports attached to the Crown’s skeleton argument) and some of the medical evidence was available at the time of the trial, including the reports following the suicide attempt. In our judgment nothing emerging about the appellant through the evidence of Dr Chesterman in any way threatens the safety of the conviction. In short it is not material. Sergeant Stansbury 38. Detective Sergeant Stansbury was the officer in the case. During the trial he was cross examined about the fact that Courtman and Sparks shared a room before they gave evidence at the trial and during the course of the trial. No attempt was made to separate them, even after Courtman had been cross- examined. Stansbury was responsible for witnesses. Furthermore, Courtman and Sparkes were left together in a room over lunch at court after Courtman had completed his evidence and while Sparkes was in the course of giving his. 39. It is also said that Stansbury knew that Crossland was visiting Courtman and Sparkes in Somerset and that he was staying with Courtman in breach of an injunction. The suggestion is that Stansbury was conniving at the breach of the injunction. Counsel for the prosecution depended on Stansbury providing him with reliable information as a basis on which to make the decision whether to call Crossland and what steps to take with regard to him. Mr Blaxland argues that Sergeant Stansbury may have ceased to act objectively and thus prejudiced counsel’s decision. 40. Mr Spence’s response is that prosecuting counsel took a view quite independently of Stansbury. Courtman was in the witness programme and there was a witness support service at Norwich. All this was canvassed in front of the jury during Stansbury’s cross examination. Furthermore Stansbury was not the subject of disciplinary action of any kind. 41. In our view nothing of consequence arises out of the Stansbury point either with regard to the decision not to call Crossland or as to Courtman and Sparkes putting their heads together. Misdirection 42. The appellant complains that the judge misdirected the jury when he referred to a passage in the appellant’s interview in which the police officer put to the appellant something from Crossland’s statement. The judge made a mistake; he should not have identified where it came from. In this passage Crossland was saying the appellant threatened to kill the deceased. There was no such evidence to this effect because, of course, Crossland had not given evidence. This was a plain misdirection, but the judge corrected it and in our judgment there is nothing in the point. The judge told the jury the following day that if they remembered the passage (and he specifically did not refer to the detail) it was not evidence and they should not act on it. Good Character 43. The complaint is that there was positive evidence of good character from a number of witnesses that the defence failed, whether through negligence or inadvertence, to call. It is submitted that this was a significant irregularity. Some of these witnesses said that the appellant behaved in a gentle manner in their presence. Had the evidence been submitted to the Crown it is likely, so it is said, to have been agreed. 44. The Crown’s response is that the appellant had the benefit of a good character direction from the judge. Good character has to be looked at in the context of the case as a whole and against the background of the kind of activities that the appellant admitted, which included smoking cannabis and dishonesty with regard to social security benefits. He was not as virtuous has his submissions on this point would suggest at face value. Also, it is quite possible that if any of these witnesses had been called, cross examination could have been damaging to the appellant’s case. We do no think this point impinges in anyway on the safety of the conviction. Conclusion 45. We have considered carefully all of the appellant’s points both individually and cumulatively but are satisfied that the conviction is safe and accordingly this appeal must be dismissed.

```yaml citation: '[2003] EWCA Crim 1240' date: '2003-05-02' judges: - LORD JUSTICE SCOTT BAKER - MR JUSTICE PITCHERS ```

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 2149 Case No: 201701337 A2 I N THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date; 19/ 12/2017 Before: LORD JUSTICE HOLROYDE MR JUSTICE GREEN and HIS HONOUR JUDGE AUBREY QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - JETMIR PRENGA Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M Graffius (instructed by Registrar of Criminal Appeals) for the Appellant S Heptonstall (instructed by CPS Appeals and Review Unit) for the Respondent Hearing dates: 3rd November 2017 - - - - - - - - - - - - - - - - - - - - - Approved Judgment MR JUSTICE GREEN: (i) Introduction 1. This case concerns an invitation to the Court to exercise the power on the part of the Court to adjust a sentence which is otherwise lawful in order to ensure that it is overall proportionate and achieves “justice” 2. On the facts the appellant was on conditional bail, subject to a curfew, pending trial. In the normal course, if convicted, he would have been accorded credit against the sentence for time spent on such qualifying bail. Whilst on bail he was however the subject of a European Arrest Warrant (“EAW”) issued by Italy. This led to his conditional bail being revoked and the appellant was remanded in custody pending extradition. Later the EAW was withdrawn by Italy. He then fell to be sentenced for the offence he was charged with in this jurisdiction and this led to an extended sentence of imprisonment. The Judge indicated that the qualifying period whilst on bail would count against sentence. When, later, the applicant sought to clarify his release date with the Prison Governor it became clear that no credit would be given to him to take account of the period on remand awaiting extradition. 3. It is argued that he should be accorded some reduction in sentence to take account of the fact that but for the EAW he would have remained on qualifying bail and, in due course, received credit to be set against the final sentence. He says that he should now have his sentence adjusted to take account of days spent on remand. To fail to recognise this would lead to a real injustice. 4. A secondary issue arises in that the appellant also argues that he should be accorded 2 days credit for the time he spent in police custody when first arrested. 5. The appellant seeks permission to appeal out of time to argue the point that he should be entitled to an adjustment to his sentence for the period spent on remand awaiting extradition. The application for permission had been referred by the Single Judge to the Full Court for consideration. For reasons we set out below we grant permission to appeal. (ii) The chronology leading up to sentence 6. It is necessary to set out the facts in some detail. 7. On the 20 th March 2014 the appellant was arrested in connection with an investigation into a conspiracy to supply class A drugs (cocaine). He was remanded in police custody until 22 nd March 2014 when he appeared, for the first time, at Wimbledon Magistrate’s Court. He was sent to the Crown Court in custody. On the 4 th April 2014 a preliminary hearing was held at Kingston Crown Court. The appellant was remanded back into custody. 8. On the 29 th August 2014 conditional bail was granted (with no opposition to the application by the Crown). The appellant was subject to a curfew which, ordinarily, would give rise to credit against any sentence ultimately passed. 9. Upon a date which is not set out in the record before this Court, Italy issued an EAW in relation to the applicant. This was communicated to the National Crime Agency (“NCA”). 10. The appellant was arrested on 27 th November 2014. He was remanded in custody at HMP Wandsworth in connection with the EAW. No application was made to revoke the conditional bail which, at least in theory, remained outstanding. The effect of this was that, because the remand in custody was pursuant the EAW, the appellant could not claim to offset this period of custody against any sentence that he was later given in relation to the criminal proceedings in this jurisdiction. Mr Prenga could, however, claim credit for time spent in custody in England & Wales against any sentence he might in due course be given in Italy. 11. On 20 th February 2015 the appellant attended Kingston Crown Court. An application was made to the judge to revoke his bail. Although in one sense this was a formality because the appellant was on remand it had the effect of making his remand, from then on, relevant to the ultimate sentence handed down in these proceedings. But it also had the converse effect of taking away from Mr Prenga the chance to claim credit against any sentence later imposed by the Italian court. There is some uncertainty about what happened at this hearing. Counsel for the appellant informed us that it was only on this date that he learned about the EAW and that the conditional bail for the matter on which he was to be sentenced had not been revoked. Counsel applied to the Court to revoke his bail “...to ensure the days served on remand would count towards his sentence”. We were informed however, by the Crown, that as of this date the appellant was: opposing extradition and challenging the validity of the EAW; had already sought bail in the extradition proceedings; and, had indicated that there would be a further application for bail in those proceedings. 12. The appellant was remanded in custody until 20 th April 2015 when he entered a plea of guilty. Sentencing was adjourned until 30 July 2015. 13. On 29 th June 2015 the EAW was withdrawn by Italy. 14. On 6 th July 2015 Westminster Magistrates’ Court discharged the extradition. We are told that the appellant did not attend this hearing, nor did any legal representative on his behalf. We do not have the documents relating to that hearing before us. (ii i) Sentence 15. On the 30 th July 2015 the appellant was sentenced. Counsel for the Crown and the appellant have explained to us that, inexplicably, on this day neither they nor the Court was aware that the EAW had been discharged. 16. In his sentencing remarks the judge observed that the appellant controlled and organised a sophisticated network of vehicles and addresses across London to facilitate the large-scale supply of controlled drugs. He organised and supervised the delivery of drugs whilst employing sophisticated measures to distance himself from the activity. He was sentenced under category 1, significant role. The sentencing range was 9-12 years with a starting point of 10 years imprisonment. He had pleaded guilty on the 20 th April 2015, being the first day of the trial. This was very late. It was argued that he should be entitled to a 25% reduction in sentence. The judge disagreed granting a reduction of 17% which he regarded as “generous”. The sentence imposed was 132 months imprisonment. Allowing for the 17% credit due to the late plea and other aggravating and mitigating factors that sentence was adjusted to a sentence to 109 months. 17. The judge then said this: “ I understand that there were some relevant tagged days, and the total tagged days was I’m told 91 days, therefore on my calculation there should be 46 days to count. If that’s wrong it can be adjusted administratively.” There is no dispute but that the 91 days referred to excludes the period on remand pursuant to the EAW between November 2014 and February 2015. (iv) Events post-sentence 18. It appears that the appellant has queried with the prison Governor the correct release date. A letter was sent to him on 21 st December 2015 setting out the relevant dates. It is apparent that calculation that the Governor was working from to determine the release date did not take account of any time spent on remand pursuant the EAW. 19. On 25 th January 2016 solicitors for the appellant wrote to the Governor at HMP Highpoint where he was serving his sentence requesting confirmation that the remand time between 27 th November 2014 and 19 th February 2015 be deducted from his sentence and that her previous decision be re-considered. The letter stated, in relevant part: “We would be grateful if you would re-consider whether the period on remand between 27 November 2014 and 19 February 2015 can be included in the sentence calculation, on the basis that Mr Prenga did not have the benefit of bail during this period. He was in custody until the next hearing when he was able to ask for his bail in this matter to be cancelled, and as you know the extradition matter was later withdrawn. We would submit that it is unjust for this period of custody not to be taken into account in Mr Prenga’s sentence calculation” 20. There is no evidence of any reply to this letter. We are told however (by the Crown, and the appellant agrees) that the Prison Service persists in giving credit only for the periods (a) 22 nd March - 29 th August 2014 and (b) 20 th February 2015 - 30 th July 2015 ie not for the period spent on remand under the EAW. 21. On 13 th July 2017 the appellants solicitors wrote to the CACD office contending that had the lawyers been aware, as of the date of sentence (see paragraph [15] above) that the time in custody would not count towards sentence then counsel “... would have utilised this point in his mitigation, so that the trial judge could consider reducing the sentence he had in mind by a further approximately 6 months, taking into account the additional 3 months which the applicant served in connection with an unrelated matter, which had been withdrawn by the Italian authorities. ” (v) The appellant's arguments 22. The appellant, initially in person, has applied to this court for permission to appeal out of time on the basis that days spent in custody at the police station and days spent on remand under the EAW should be taken into consideration. In particular, he has argued: i) That he was arrested on the 20 th March 2014 and held for 2 days in police custody and these two days should count towards sentence; ii) that he should have received credit for the time spent on remand under the EAW between 27 th November 2014 and the 19 th February 2015. 23. Pursuant to an order of the single judge counsel was instructed to represent the appellant in the present case. In short but helpful written submissions to this court Mr Graffius, counsel instructed and who appeared in the earlier proceedings, concedes that in relation to the time spent on remand pursuant to the EAW under section 240ZA(3) CJA 2003 credit can be given only in relation to the same offence or a related offence. It is also accepted that the matters behind the EAW are not the same as or related to the offence which is the subject of these proceedings. 24. Instead the thrust of his written and oral submission is based upon the existence of a residual discretion on the part of the court to adjust otherwise lawful sentences “to do justice on the particular facts ” of a case. Mr Graffius’s submission was short and concise. On the facts it is just that the appellant be granted credit for the time spent on remand pursuant to the EAW. This is not a case where he was recalled on licence or claimed there had been excessive delay before sentence. He is no longer being pursued in Italy, yet he served time on remand in circumstances where but for the EAW he would have been on qualifying curfew. But, now, he gets no credit against sentence in Italy and no credit against sentence in this jurisdiction. With the benefit of hindsight an application to revoke the applicant’s conditional bail should have been made immediately upon his arrest pursuant to the EAW in November 2014. Had this occurred then, just as it was in February 2015, the Judge would have been likely to have granted the application and the appellant’s position would have been protected. If there is blame it lies at the door of the legal representatives who failed to identify this issue. 25. No criticism can be levelled at the Judge before whom no application was ever made. (vi) The Crown’s arguments 26. The Crown accepts that in principle the court has a residual power to make allowances for time spent on remand if necessary to correct an injustice. It is said however, that this is a discretion which no court is obliged to exercise and the mere fact that a defendant is on remand on another unrelated matter for which a person may subsequently be acquitted does not attract an automatic discount. It is acknowledged that the existence of this discretion, or the possible application of that discretion to the facts of the present case, did not feature in the Crown’s oral opening of the facts or in the judges sentencing remarks. It is observed that the total amount of time in issue in the present case, being less than 3 months, does not necessarily give rise to a substantial risk of injustice in the context of a total sentence of 109 months. 27. The Crown contend that the two-day period spent in police custody was ineligible for police credit pursuant to section 242(2)(a) Criminal Justice Act 2003 (“CJA 2003”) which stipulates that remand in custody for the purpose of counting as time served (cf section 240ZA CJA 2003) refers to being remanded “by an order of the court”. The time spent in police custody was not by an order of the court and therefore credit was unavailable. The spending of time in police custody is routine and necessary to enable the police to conduct their usual enquiries. There is no injustice which needs to be remedied by this limited curtailment of liberty. 28. In relation to time spent on remand pursuant to the EAW under section 240ZA CJA 2003 periods of time spent on remand in custody can count towards the ultimate sentence provided they are spent in connection with the offence or related offence. It is not however suggested that the EWA was here related to the offences for which the applicant was sentenced in the present case or related case. Hence the time spent awaiting extradition is irrelevant. Mr Heptonstall who appeared on the appeal for the Crown, did not, however, argue that it would have been improper for the judge below, had an application been made to him, to have taken the period spent on remand awaiting extradition into account in some way. (vii) Discussion and analysis: The application for permission to apply out of time 29. First, we consider whether it is appropriate to grant the extension of time in order to permit the argument to be considered. This matter comes before this court by way of an application to extend time for permission to appeal. It does not arise before the court by way of an application for judicial review of a decision of the prison Governor to refuse to accord credit to the applicant for time spent on remand pursuant to the EAW, when fixing the putative release date. 30. In R (on the application of Desmond Shields- McKinley) v Secretary of State for Justice [2017] EWHC 658 (Admin) (“ Shields- McKinley ”) Mr Justice Holroyde (as he then was) held that it was inappropriate for an applicant to seek judicial review of a decision of Her Majesty’s Prison Service (“HMPS”) in calculating a release date and in refusing to take into account periods for which the applicant claims credit. In that case the claimant was extradited from Germany to face charges in this jurisdiction. He was subsequently convicted and sentenced to an extended sentence of imprisonment. In fixing the date of release HMPS gave credit for the period of time spent on remand in England and Wales but not for the approximately 50 days spent whilst detained in Germany awaiting extradition. Pursuant to section 243(2) CJA 2003 there is a statutory requirement on a court to state in open court the number of days for which an extradited was detained abroad. The claimant had an entitlement to credit in relation to the days so specified. In the absence of such a statement a prison governor, when calculating the release date, has no definitive statement of the number of days for which credit is required to be given and there is scope for uncertainty and disagreement. On the facts of that case neither the prosecution nor defence had put in front of the Judge the number of days served in Germany. The Judge therefore, in error, failed to specify the number of days for which credit should be given. However, the applicant had not sought to remedy this defect by seeking the permission to apply out of time to the Court of Appeal he had, instead, sought judicial review of the decision of HMPS. 31. In these circumstances Holroyde J held that HMPS had acted lawfully, in relying upon the sentencing decision of the judge. To challenge the decision of the prison governor "... confuses an alleged calculation error by the prison governor for the failure by the Crown Court to specify the Germany days when pronouncing the sentence in open court. That failure by the Crown Court was regrettable but was not a " gross and obvious error” in the sentencing process because it does not appear that any submissions had been made inviting the recorder to specify the Germany days, and it appears that he therefore sentenced in ignorance of the fact that the claimant was entitled to credit for the period during which he had been detained during which he had been detained pending his extraction.” (ibid paragraph [80]). The Judge also held that since no days had been specified under section 243(2) CJA 2003 there was no error on the part of the prison governor and no lawful basis upon which he could have gone behind the order of the Crown Court. It would have been “ constitutionally improper for either the prison governor or a member of the Crown Court office staff to re-write the sentence which had been pronounced, however clear it may have seemed to be that the Recorder had fallen into error" (ibid paragraph [81]). 32. The judge was of the clear view that commencing judicial review of a supposedly erroneously administrative act was an inappropriate attempt to circumvent the proper system of appeal against sentence. In coming to this conclusion, the Judge had well in mind the submission that in denying relief an injustice might be perpetrated to the appellant (ibid paragraph [82]). The way which such an injustice should have been avoided was for the claimant to seek a remedy by way of the slip rule or by way of an application to the Court of Appeal Criminal Division for an extension of time to make an application for leave to appeal against sentence. As the judge observed (ibid paragraph [82]): “ even at a late stage, he could have applied for a very long extension of time if he had good grounds for doing so even taking into account the delay in obtaining precise dates as to the period in custody in Germany that appeal process could have been initiated in good time for the date on which the claimant contends he should have been released. On an appeal to the CACD, the focus would have been on the omission of the court (contributed to by all the lawyers in the case) to specify the relevant number of days in accordance with section 243.” 33. In the present case the appellant has followed the route described by Mr Justice Holroyde in Shields-McKinley. The matter comes before this court long before the first possible date of release. The focus of attention now lies in determining to what extent if at all the sentence should be adjusted to take account of the time spent on remand under the EAW, if the appellant has “ good grounds ”, 34. It is important to point out that the judge in that case did not say that every application that came before the CACD, where there was a dispute about the amount of time to be taken into account, would necessarily be granted leave. 35. In this case we recognise that the Single Judge referred the application and ordered representation. We bear in mind the guidance given by the High Court in Shields- Mckinley (ibid). In the circumstances of this case we are persuaded that we should grant the necessary extension of time and give permission to appeal. (viii) The exercise of discretion: Where does justice lie? 36. We turn now to consider the merits of the application for permission. There are two main issues. First, as to the extent to which there is a discretion to take into account time spent on qualifying bail or on remand outside of the circumstances where credit is accorded as set out in the CJA 2003. Second, as to the application of such discretion as exists to the facts of this case. a) The existence of a discretion 37. We start by considering the nature and extent of the discretion to adjust otherwise lawful sentences where required to achieve justice. It is, in this regard, well established that a sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. The paradigm illustration flows out of the requirement in Article 6 ECHR that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one. 38. In Dyer v Watson; K v HM Advocate [2004] 1 AC 379 Lord Bingham of Cornhill observed that in any case in which it was contended that Article 6 was violated by virtue of delay the first step was to consider the period of time which had, in fact, elapsed. Unless that period gave grounds for real concern it was almost certainly unnecessary to go further “... since the convention is directed not to departures from the ideal but to infringements of basic human rights .” The threshold for proving a breach of the reasonable time requirement was a high one “ not easily crossed” (cf ibid paragraphs [52] - [55]). 39. In Mills v HM Advocate [2004] 1 AC 441 Lord Hope (ibid paragraph [54]) recognised that delay could in an appropriate case justify an adjustment to sentence. One possible rationale for this is the anxiety experienced by a defendant, resulting from the abnormal prolongation of proceedings. Another possible explanation might be that a defendant’s life has changed during the period of delay such that the person who stands to be sentenced is, in terms of character, not the person who committed the offence. 40. In Attorney Generals Reference No 79 of 2009 [2010] EWCA Crim 338 it was held (per Lord Justice Hughes VP at paragraph [19]) that delay: “... is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly a conviction occurs .” The Judge, nonetheless, emphasised that applications for reductions in sentence would be “unusual” . The authorities relating to delay and Article 6 demonstrate that unnecessary delay can amount to mitigation resulting in reduction of sentence but, also, that questions of delay are instances of “ ... the broader question of what a just sentence is”. It follows delay, whilst perhaps being a paradigm example, is not exhaustive of the categories of case in which a sentence might be mitigated in order to ensure overall justice. 41. In R v Kerrigan [2014] EWCA Crim 2348 the Court of Appeal was required to consider broad questions of justice in the context of custodial sentences ordered to be run consecutively to existing sentences. In paragraph [40] of the judgment the Court set out seven principles which might apply where a court was imposing sentences for different offences and where they might apply concurrently or consecutively leading to potentially arbitrary results. For present purposes the seventh principle is relevant and was formulated in the following way: “a judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly .” 42. Various illustrations have been placed before this court in which the court has, apparently, applied this over-arching test of justice. In R v Marshall [2016] 1 Cr. App. R.(S) 45 at paragraphs [38] - [40] the Court considered the situation where an offender was subject to conditions but had failed to comply with those conditions through no fault of his own. In that case monitoring equipment (which should have been operative as a condition of bail) had been removed due to an administrative error. In the circumstances the court decided to accord the credit that would have been available had the full conditions of bail been adhered to. 43. In Al Daour [2011] EWCA Crim 2392 the Court had to consider whether discretion should be exercised in relation to time spent in police detention. The court accepted that it was the intention of Parliament that such time would not ordinarily be included. However, it was said that this was no indication that the Court could not adjust a sentence to take account of time spent in police custody where it was necessary to do so in the interest of justice. This would be particularly the case where there had been an extended time spent in police detention. On the facts of that case the appellant had spent 12 days in police custody. The court declined to interfere. (b) The exercise of discretion in the present case 44. We turn next to our conclusions in relation to the facts of the present case. In our judgment this is not a case where it is appropriate for the Court to modify the sentence to ensure justice. 45. First, the discretion to modify a sentence, which is otherwise lawful is, on the basis of case law, an exceptional jurisdiction. This is because the rules laid down in the CJA 2003 for the according of credit against sentence for periods spent on remand or on qualifying bail are intended to lay down a comprehensive scheme governing the issue. A defendant’s entitlement to “ credit ” is thus fixed by statute. Parliament has made policy choices in approving this regime, for instance as to the amount of credit for time spent on qualifying curfew (50% of the actual days). Parliament has also made clear that time spent on remand in cases unrelated to the case under consideration should not prima facie warrant any adjustment to the sentence. The cases where the statutory regime does not ensure justice should therefore be rare. 46. Second, the situation arising here is by no means exceptional. It is not uncommon for two parallel or overlapping sets of proceedings to be brought against an individual for two different offences. It is not unusual for a defendant to be on remand in relation to one, serious, charge in circumstance where (otherwise) he would have been on qualifying curfew in relation to some other, less serious, charge. Where the most serious charge is discontinued, credit is not normally given in relation to sentence on the second charge. 47. Third, the time spent on remand pending extradition between November 2014 and February 2015 was for matters which are unrelated to the present proceedings. During that period the appellant was generating some credit which he could claim to set-off against any sentence imposed in Italy. There is a lack of clarity about the reasons why the appellant did not seek to have his bail revoked at that point in time. The Crown say that the appellant was taking a vigorous and robust approach to oppose extradition. This Court is aware that a considerable amount of time can be spent in exhausting legal procedures in this jurisdiction in extradition cases. It is not impossible that the time spent on remand in this jurisdiction could ultimately be relevant to whether an extradition is ordered. Mr Graffius, for the appellant, argues that there was no stratagem to “game ” the system in November 2014. He argues that, if anything, this was simply an error on the part of legal representatives in failing to be alert to the point. But we have to consider whether it is just to allow what might be a forensic choice or, otherwise a legal error, to amount to such conspicuous injustice that we should modify an otherwise lawful sentence where there is no error on the part of the Judge. We conclude that it is not. At the time there was no disadvantage to the appellant since he was building up credit to use in the extradition process or against a sentence in Italy. It was only when, seemingly unexpectedly, the EAW was withdrawn that any risk of injustice arose. It is said that the legal representatives were unaware at the time of sentence that the EAW had been withdrawn but we find this extremely hard to fathom. Even if the legal representatives were ignorant of the fact, the appellant himself must have been aware. We are, ultimately, placed in the real difficulty in relation to these arguments that we have not been shown any of the documents in the extradition proceedings or had privilege waived so that we can determine exactly what did or did not happen. 48. Fourth, standing back, all processes, including criminal sentencing processes, must have finality attached to them. We do not consider that every time a legal representative argues that had he/she been better informed different arguments would have been advanced during mitigation and the judge would have (arguably) passed a different sentence, an injustice is perpetrated. Defendants are given an ample chance to put forward their best cases by way of mitigation. The system does not, ordinarily, allow a second bite at the cherry. We do not therefore consider that the present case meets the test of exceptionality (ix) Conclusion 49. For these reasons we allow an extension of time in which to seek permission, we grant permission, but we dismiss the appeal.

```yaml citation: '[2017] EWCA Crim 2149' date: '2017-11-03' judges: - LORD JUSTICE HOLROYDE - MR JUSTICE GREEN - HIS HONOUR JUDGE AUBREY QC (SITTING AS A JUDGE OF THE CACD) ```

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: 05/2304/A2 Neutral Citation Number: [2005] EWCA Crim 2687 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 13 October 2005 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE NEWMAN MR JUSTICE BEAN - - - - - - - R E G I N A -v- ENVIRONMENTAL TYRE DISPOSALS LTD - - - - - - - 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 SELVA RAMASAMY appeared on behalf of the APPLICANT - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: On 11th November 2004 in the City of London Magistrates' Court the applicants pleaded guilty and was committed to the Crown Court for sentence for an offence of failing to discharge a duty as an employer under section 2(1) of the Health and Safety at Work Act 1974 . At the Central Criminal Court on 30th March 2005 His Honour Judge Stephens QC ordered the applicants to pay a fine of £70,000, £4,996 compensation and £14,991.50 towards the prosecution costs. The company renews its application for leave to appeal against sentence after refusal by the single judge. 2. The circumstances in which the offence occurred were as follows. The applicant company had premises in north London which consisted of offices and an enclosed yard of about three acres. To that yard lorries would come carrying used tyres for scrap. The actual process of shredding the tyres for the purposes of later disposal was carried out by another company, Midco Waste Management Ltd (which was called during the proceedings "Midco"), who were themselves defendants and received the same penalty. 3. The position was that on the premises there was a shredder which was operated by Midco. The deceased was one of the applicant's employees on the site. He was the supervisor of those employed by the applicants to examine the tyres and to store the tyres prior to their being shredded. 4. For the purposes of carrying out the shredding, amongst other equipment, Midco had obtained a loader. The loader was used to assist in moving the tyres from where they were stored to the shredder. None of the applicants' employees had had any training or even instruction in the use of that loader. 5. On the day in question, which was Saturday 30th June 2001, only one employee from Midco came to the site to work. As a result, the applicants made the deceased and one other employee available to Midco to assist in the shredding process. In order to move the tyres to the shredder the deceased decided to use the loader and, tragically, whilst he was using it, it overturned, trapping and killing him. It was that accident which formed the basis of the prosecution. 6. As far as Midco was concerned, the allegations that were made against them were that they had, according to the evidence, asked or instructed the deceased to use the loader in the course of carrying out his work, knowing that he had not had any training or at least making no enquiry as to whether he was capable of using the loader. The requirement for training for using such a machine was a well-known requirement within the industry; and there is no doubt that the deceased was killed in the course of carrying out operations on behalf of Midco. 7. As far as the applicants were concerned, they were the employers of the deceased. They knew that he was carrying out operations on Midco's behalf; and there is no doubt that the deceased had in the past used the loader when he should not have done. The allegation against the applicants, accordingly, was a failure to supervise and instruct the deceased appropriately. The conclusion was that both the companies were accordingly to blame; and the judge considered that they could properly be treated as equally blameworthy. It was in these circumstances that he imposed the fines that he did. 8. In mitigation it should be said that neither company had any previous convictions for any health and safety offences. Both pleaded guilty, and both had cooperated with the Health and Safety Executive after the tragic accident and had put their respective houses in order. 9. On behalf of the applicants Mr Ramasamy has, in his advice and his submissions to us today, said all that could possibly be said on behalf of the applicants. He submits to us that essentially, for two reasons, the judge's approach to sentencing was wrong. First, as far as the respective responsibilities of the applicants and Midco are concerned, he should have treated Midco as being more to blame, on the basis that theirs was a positive act which resulted in the deceased driving the loader, namely the instruction that he could use it for the purposes of moving the tyres, whereas the applicants' failure was what might be described as a negative failure, in other words they failed to do that which they should have done, and that that should not have been treated as in the same category as the positive failure of Midco. 10. Secondly, he submits that the fine was simply too great for two reasons. First, he submits that it is out of line with the fines imposed on other companies in other cases; and he has referred us to a number of cases which he submits are of sufficient similarity to provide some guidance to this court and has referred us in particular to cases which follow the case of R v F Howe and Sons (Engineers) Ltd [1999] 2 Cr App R (S) 37, where this court indicated that previous sentences would appear to have been inadequate. Second, he submits that the fine was too great because of the applicants' financial position. 11. Dealing with the first main ground upon which he criticises the judge's sentencing approach, we do not accept that the applicants should be treated any differently from Midco. It may be that it was Midco who effectively created the situation in which the deceased was put at risk by the use of the loader, but it was the applicant's responsibility as employers to ensure his safety and, in that context, to have taken steps to oversee precisely what work he was doing and how he was doing it when he was effectively seconded to Midco. Had they done so, they would have appreciated that he had in the past driven the loader and taken appropriate steps to ensure that he did not do so again. We consider that their position as employers justified the judge taking the view that he did as to their relative blameworthiness in this case. 12. Turning then to the level of fine, there is nothing in the material with which we have been provided which suggests to us that £70,000 was other than an appropriate figure to take in the circumstances of this case, as the level of fine appropriate to mark the seriousness of the offence and its consequences. It is very difficult to extrapolate from case to case any scale which can assist courts, and it is therefore a matter of assessment by the judge as to where he places the seriousness of this case in the spectrum which is identified by other cases. We do not consider that the judge went wrong in placing this one in a serious category, requiring a substantial fine. It may indeed be that some would consider the fine of £70,000 for the accident which caused the death of the deceased a figure which is by no means a heavy penalty for the company to bear for the failure to look after its employees as it should. 13. As far as the company's financial position is concerned, it seems to us that, although there is no doubt that it was a smaller company than Midco by reference to its accounts, the fact remains that it is a company which had a turnover in excess of £2 million per year. It was by no means a small business in that sense. The fact that it may not be as profitable at the moment as its shareholders and those running it may like, and indeed from the material that we have it is clearly not making substantial profits, nonetheless the figures do not suggest that there are any special circumstances in their case which could justify the judge departing from the figure which he had deemed appropriate in the first instance to reflect the defaults on their part. We are not, in those circumstances, satisfied that there is any prospect of this court interfering with the sentence. We consider it was a proper sentence in the circumstances, and the application for leave to appeal is accordingly refused.

```yaml citation: '[2005] EWCA Crim 2687' date: '2005-10-13' judges: - LORD JUSTICE LATHAM - MR JUSTICE NEWMAN - MR JUSTICE BEAN ```

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: 2009/1256/A2, 2009/1441/A2 & 2009//1405/A2 Neutral Citation Number: [2009] EWCA Crim 2534 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 16 October 2009 B e f o r e : LORD JUSTICE RIX MR JUSTICE McCOMBE MR JUSTICE BURNETT - - - - - - - - - - - - R E G I N A v SCOTT COLLINS DARREN THOMPSON ANTHONY BARRETT - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - Mr P Doyle QC appeared on behalf of the Appellant Collins Mr D Wilson appeared on behalf of the Appellant Thompson Miss J Humphreys QC appeared on behalf of the Appellant Barrett - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE RIX: These three appeals against sentence concern the sentencing guidelines for causing grievous bodily harm with intent (the offence of section 18 under the Offences Against the Person Act 1861) and in particular the phrase used in those guidelines "particularly grave injury". The three appellants are Scott Collins, Anthony Barrett and Darren Thompson who, on 26th January 2009 at the Central Criminal Court before His Honour Judge Morris QC and a jury, were convicted of the section 18 offence and on 17th February 2009 were sentenced in the case of Collins and Barrett to 14 years' imprisonment (with days on remand counting towards sentence) and in the case of Thompson to 10 years' imprisonment (also with days on remand to count towards sentence). They now appeal against sentence by leave of the single judge. 2. The offence occurred on 8th June 2007 and arose out of what was originally a minor dispute involving the brother of the 26-year-old complainant, a Mr Hatton, and the appellant Collins. It appeared that about a week before that day, Mr Hatton's brother had been assaulted in a public house in Romford and believed Collins to be the man responsible. On that evening, 8th June 2007, Hatton had a conversation in the same public house with Collins' mother which upset her and was reported by her to Collins. Collins, as a result, contacted Barrett and Barrett in turn contacted Thompson, the three of them agreeing to attend the public house in order to confront Hatton. Although it was disputed at trial that Collins and Thompson knew that Barrett was bringing a gun to their meeting, the jury accepted that they did know and on these appeals it is accepted on all sides that the basic situation was that these three men agreed to assemble to confront Hatton with one of them, to the knowledge of the others, bringing with him a firearm to use in that confrontation. 3. So it was that at shortly after 10 pm that night a confrontation took place. Hatton became involved in an argument with Collins. Hatton made the error perhaps of punching Collins and indeed knocking him to the floor which was taken by the three as a sign for action. Barrett produced the gun and shot Hatton. Hatton initially continued to confront him and then retreated back into the public house, which they were outside of, but Barrett and Collins ran after him and Barrett shot him a second time in that second phase of the action. The appellants ran from the scene. The incident was captured on CCTV. 4. Both shots fired at Hatton found their marks. One was to the abdomen and passed close to the liver and right kidney. The liver was described in the medical evidence as being "shaved". That bullet went through the colon, perforating it in a number of places. The second bullet was to the left area of the groin where the bullet could not safely be removed and where it still remains. Although it appears that the victim of this shooting entered hospital conscious and alert, he remained in hospital for a total of 10 days and in the course of that time suffered a colostomy, although fortunately that was in his case an operation which could be reversed, and he re-entered hospital some months later for its reversal. The medical evidence described that reversal in itself as being major surgery. The shooting was at close range and it is accepted that the bullets fired were aimed at the areas that they entered. Indeed it is submitted that it is to be taken into account on behalf of the appellants that the shots were not fired at head or heart. 5. Collins was born on 11th February 1986 and thus was 21 at the time. Barrett was born on 5th June 1981 and was 26. Thompson was of the same age. 6. Collins and Barrett were relatively lightly convicted. Thompson was more seriously convicted, having sentences in his past for attempted robbery and possession of a firearm. Nevertheless, the judge accepted that his responsibility was less than that of the two others. A pre-sentence report in his case described his motivation for committing the offence as one of misplaced loyalty towards Barrett and it appears that his offending was often linked to peer pressure and distorted decision-making skills. A pre-sentence report in the case of Collins said that he continued to refuse to accept any responsibility for what had happened, although he did express his regret for Hatton's injuries. In the case of Barrett, a pre-sentence report said that he accepted that he had committed the offence and appeared to be remorseful. He also had character references. 7. In his sentencing remarks the learned judge observed that the injuries suffered by the victim could easily have been fatal and that if they had been all three appellants would have been facing convictions for murder. 8. On the question of dangerousness he concluded that that threshold had not been crossed and therefore turned towards the determinate sentences which he should impose. He then immediately addressed the sentencing guidelines of the Sentencing Guidelines Council for this offence. He emphasised, as is always important to bear in mind, that they were guidelines and no more. It was accepted before him that all the ingredients, save (it was submitted) one, involved in the highest category under this offence were present in the present case. The factors taking a case into the highest level of this offence are that life-threatening or particularly grave injury has been incurred as a result of premeditated action involving the use of a weapon acquired prior to the offence and carried to the scene with the specific intent of injuring the victim. All those factors, it was accepted, were in play, save that it was submitted that the injuries caused to Mr Hatton were neither life-threatening nor particularly grave. The starting point for that first level is 13 years' custody with a sentencing range of 10 to 16 years. The second level in the case of section 18 distinguishes between on the one hand life-threatening or particularly grave injury which has not been premeditated and, on the other hand, premeditated injury involving the use of a weapon acquired prior to the offence and carried to the scene with specific intent of injuring the victim but where no life-threatening or particularly grave injury was caused. 9. The judge recorded that although it was accepted before him that the injuries were potentially fatal they were said to be neither life-threatening nor in fact particularly grave. The judge disagreed with those submissions. He was satisfied that Mr Hatton had suffered particularly grave injuries - in fact he used the gloss "particularly serious" but there was no doubt that he was referring to the variable of particularly grave injury -- and that it was largely as a result of the swift and efficient medical intervention which he received that he was able to make as good a recovery as he did. He was satisfied the case therefore fell into the highest category of that offence. He then turned to the following additional aggravating features in the case, which he identified as being first that the three appellants went as a group or gang to carry out the offence; secondly, that the weapon in play was a loaded firearm; and thirdly, that two shots had been fired at the victim on two separate occasions in vital parts of his body. In effect he treated Collins as the organiser, Barrett as the gunman (albeit known to be by all three) and Thompson as the person brought along for further support. In the end he sentenced the three to 14 years, 14 years and 10 years respectively as we have indicated. 10. On this appeal the submission is renewed that the victim's injuries were not particularly grave. The judge did not say that they were life-threatening, but it is accepted that they were potentially life-threatening, repeating a concession made before the judge. What is the difference between a particularly grave injury and any injury for the purpose of a section 18 offence, which by definition must be a serious one? The guidelines themselves throw no particular light upon that question. Miss Humphreys QC on behalf of Barrett submits that the critical feature for a particularly grave injury is that it should be permanent and the injuries in the present case are contrasted, on behalf of the appellants as a whole, with permanent injuries such as the loss of an eye or of a limb. It is also accepted by at least one of the counsel before us in a written advice that multiple fractures could be described as particularly grave. Nevertheless, at the end of the day Miss Humphreys, who had most clearly advanced the categorisation of particularly grave injuries as being permanent ones, accepted that a non-permanent injury may be particularly grave. We would add that a permanent injury also may not be particularly grave - one obvious example being a scar, and there may be many others that one could think of. 11. Miss Humphreys also accepted that an injury may escalate from being merely serious to the particularly grave because of its subjective effect on a particular person. If that is correct, and we have no need to decide that question in this case because the victim in this case with something amounting possibly to bravado has declined to effect a victim impact statement, there is no sign that it has had any long-lasting effect upon him. 12. Mr Wilson on behalf of Thompson submitted that if one had regard to the responses to consultation which had preceded the advice which perhaps originally came from the Sentencing Advisory Panel, all of which led in due course to the guidelines of the Sentencing Guideline Council, it could be submitted, as he did, that the guidelines had introduced the language, not present before, of particularly grave injury added to cover a concern of consultees relating to permanent injury. We have already given our reasons, however, for considering that particularly grave and permanent injuries are not glosses of one another. The language of the guidelines is particularly grave. 13. In our judgment, like that of the judge, these were particularly grave injuries. They were bullet wounds to vital parts of the body. Ignoring those vital organs which the bullets so nearly affected but did not, as we do for the moment, one at least of the bullets nevertheless perforated the colon in several places and led to two major operations - one a colostomy and the other a reversal of a colostomy. In our judgment, on any view of the matter these were particularly grave injuries. They were also, and this is relevant to an overall view of the gravamen of the matter, potentially lethal, particularly as they arose out of gun shots aimed at vital parts of the body, even if a part of the body different from the head or the heart - the closeness with which the first bullet passed to the liver and kidney indicates the point. On any view therefore this offence falls within the SGC's highest category for section 18. 14. It has not been submitted to us that even if because of the presence of particularly grave injuries this offence was within the highest category of the guidelines, nevertheless the judge placed it too high within the broad range of that category by choosing the sentences that he did, at any rate in the case of Collins and Barrett. We have nevertheless considered that question for the sentencing range at this highest level is a broad one. Nevertheless in our judgment this was a most serious example of this category of offence. We emphasize as the judge did the fact that the three men went as a gang or group and that not content with one shot, two shots were fired but not in quick succession as may well happen when a firearm is used, but at separate stages or phases of the incident as a whole. These are serious aggravating features. However, as serious as any an aggravating feature is the fact that the weapon used, and the sentencing guidelines only refer generally to "a weapon", was a loaded firearm. These courts have repeatedly and also very recently emphasised the seriousness of even the possession, let alone the use, of such firearms. In Attorney General's Reference 58 to 66 of 2002 this court said that a sentence of seven to eight years after a trial would be appropriate for the offence of possession of a firearm with intent, even when that firearm was not in fact fired. The recent decision in which Lord Judge, CJ, gave the judgment in Wilkinson [2009] EWCA Crim. 1925 , has most recently re-emphasised the seriousness of the use of firearms. Lord Judge there remarked that deterrence and punitive sentences are required and should be imposed in such circumstances. 15. The importance of the use of a firearm is also emphasised in the statutory provisions relating to murder. Where a firearm is used the murder in question is immediately taken up to that category of sentencing for the purpose of minimum periods which starts at 30 years. Therefore, there were in this case the most aggravating of features. When we take into account the particularly grave injuries which the victim suffered and the aggravating features to which we have referred, in particular the use of a loaded firearm and its use twice in separate phases of the assault on Mr Hatton, we have no doubt that these sentences were properly imposed and indeed deserved. For these reasons these appeals are dismissed.

```yaml citation: '[2009] EWCA Crim 2534' date: '2009-10-16' judges: - LORD JUSTICE RIX - MR JUSTICE McCOMBE - MR JUSTICE BURNETT ```

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: 04/5576-5577/D3 Neutral Citation Number: [2005] EWCA Crim 1828 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 1 July 2005 B E F O R E: LADY JUSTICE SMITH MR JUSTICE HUGHES MR JUSTICE WAKERLEY - - - - - - - R E G I N A -v- J.H. T.G. (Deceased) - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR JRW GOSS QC & MISS S DRAKE appeared on behalf of the APPELLANT J.H. MR R SWIFT QC appeared on behalf of the APPELLANT T.G. MR JW RICHARDSON QC appeared on behalf of the CROWN - - - - - - - JUDGMENT 1. LADY JUSTICE SMITH: There are before the court two appeals against conviction for offences of sexual abuse which have been referred to this court by the Criminal Cases Review Commission ("CCRC"). On 14th November 2000 at Leeds Crown Court, after a trial before Harrison J and a jury, the appellant H was convicted by majorities of ten to one of two counts of indecent assault (counts 1 and 2) and four counts of rape of his daughter, JH (counts 3, 4, 5 and 7). He was sentenced to twelve years' imprisonment. He was acquitted of count 6, also an allegation of rape. 2. On 12th January 2001, at Bradford Crown Court, after a trial before Harrison J and a jury, the appellant G was convicted of five counts on indecent assault and three counts of rape of JH. He was sentenced to eight years' imprisonment. 3. In July 2002 the Court of Appeal (Criminal Division) dismissed both men's appeals against conviction following a joint hearing. 4. G died in prison in August 2002. 5. Both cases were referred to the CCRC, which, in September 2004, referred them to this court under section 9(1) of the Criminal Appeal Act 1995 , on the basis of fresh evidence said to be admissible pursuant to section 23 of the Criminal Appeal Act 1968 , as amended. The referred appeals were heard together on 30th June 2005. At the commencement of the hearing the court gave leave under section 44A of the Criminal Appeal Act 1968 for Mrs M.G., the mother of the deceased appellant G, to pursue the appeal. At the conclusion of the hearing, H's appeal was allowed in respect of all six counts of which he had been convicted and a retrial was ordered on all counts. The appeal of G was adjourned pending the outcome of the retrial of H. We now give reasons for those decisions. 6. Because there will be a further trial, we shall confine ourselves to an account of the facts which is just sufficient to explain our reasons. The factual background: Allegations against H 7. JH was born in September 1979. She claimed to have memories going back to a time before she was 3 years old. In her police statement, she recounted in some detail an account of an event when her father had been angry with her and had taken her upstairs to her bedroom. She would have been just 3 at the time. She suggested that the way her father had carried her, with his hand between her legs, was indecent. However, this incident did not figure as an allegation on the indictment. 8. Counts 1 and 2 alleged that JH's father had indecently assaulted her when she was aged 4 or 5. She described two incidents, both of which took place in her parents' bedroom. In her witness statement made at the age of 19, she gave a very detailed narrative account of an incident in which her father made her masturbate him. She included much detail about the circumstances leading up to the incident and about her own emotional reaction to what had happened. In evidence at trial, she said only that her father had made her masturbate him on several occasions. 9. In respect of the second allegation, her witness statement contained a detailed narrative account of how her father had touched her vagina, then inserted his finger into it and then progressed to kissing it. Her account again included considerable detail about the surrounding circumstances, including a recollection of what she and her father were wearing. In evidence, she said only that she could remember her father touching and kissing her vagina on a number of occasions and sometimes putting his finger inside it. 10. Counts 3, 4 and 5 all alleged rape when JH was between the ages of 8 and 10. In her statement, she gave very detailed narrative accounts of three specific incidents of sexual intercourse, one of which took place in her parents' bedroom, one at her grandparents' house and one at her father's place of work. In evidence, her account of the first such incident was general and described what usually happened when her father raped her. 11. In respect of counts 1 to 5, the detailed accounts in the police statement were not adduced in evidence. There was no real inconsistency between what JH said in evidence and what she had said in her witness statement. No doubt counsel for H would not have wished to explore the detail given in the statement as there would have been a danger that the detail would have been accurately repeated and would have impressed and convinced the jury. 12. In respect of count 6, JH described in her statement how, when she was about 10, her father took her to a room in a building to which she had never been before. There she saw four men whom she did not know. She gave a detailed description of the layout of the room and the furniture. She also described each man and his clothing, in two cases descending into some detail. She then described, again in detail, how her father had had intercourse with her in the presence of the four men and how, after that, her father had forced her to have oral sex with him, had ejaculated into her mouth and had told her to swallow. The men watching were laughing. She then described how she was touched by some of the other men and had to masturbate one of them. 13. In evidence her account differed in two important respects from her previous statement. She said that she had not had to have oral sex with her father and had no recollection of ejaculate in her mouth. Also she added an allegation that the other men had inserted objects into her vagina, which had not previously been mentioned. 14. In respect of that count, JH was cross-examined closely about the differences between her police statement and her evidence, and, as we have said, H was acquitted on that count. 15. In respect of the seventh count, JH said that on numerous occasions up to the age of about 11 her father would rape her in his bedroom at home. She described what would usually happen on such occasions. She said that intercourse then ceased, but that inappropriate, sometimes indecent, touching continued until she was about 17. 16. There was a good deal of evidence about the events of JH's teenage years. She began to harm herself from the age of about 13. Her brother, her only sibling, to whom she was very close, died when she was 15. She was deeply upset. In the ensuing years, she became closely involved with a Pentecostal church. In due course she began to receive counselling. 17. Despite all these difficulties, she did well academically at GCSE and A' level, and obtained entrance to medical school. At the age of 18, she left home and went to live with another family in a different part of the country. Soon afterwards, in November 1998, she made a formal allegation of sexual abuse by G, who had been her music teacher at junior school. A month later she made a statement against her father, H. She was 21 when she gave evidence at trial. 18. On arrest, H, who was of good character, answered all questions and denied any improper conduct. He gave evidence at trial in accordance with his answers in interview. The defence called an expert, who expressed the opinion that JH's allegations were the result of false memory syndrome. The factual background: The evidence against G 19. G was a peripatetic music teacher who visited JH's school. From September 1989, when she was just 10 and in her third year at the school, JH had weekly music lessons from G, initially as part of a group and then eventually on a one-to-one basis. She alleged that, during such lessons, G began to touch her inappropriately. One day, he made her sit in a chair and masturbate him. Then he forced her to have oral sex, ejaculated in her mouth and told her to swallow it. This, she said, happened on a number of occasions and was covered by counts 1 and 2 on the indictment. She also alleged that on several occasions G inserted coloured objects into her vagina. This, she said, was very painful. 20. Counts 4 and 5 alleged indecent assaults when she was in the fourth year at school, one of which entailed licking her vagina. 21. Counts 6 to 8 alleged rape, also during her fourth year at the school. In her statement, JH gave detailed descriptions of three specific incidents of rape, the first of which took place during the winter of that year. She said that penetration was extremely painful. Such incidents, she said, had taken place on more occasions than she could remember. She said that G had stopped visiting the school at the Easter of her fourth year. The abuse then stopped. 22. When arrested, G, who was of good character, answered all questions in interview, denying any impropriety and gave evidence at trial to the same effect. The defence did not call the expert on false memory syndrome, but did call a number of character witnesses. As we have said, G was convicted on all counts. The first appeal 23. No complaint was made by either appellant about the conduct of his trial or the summing-up. H's appeal relied to a large extent on a submission that the jury appeared to have accepted the expert evidence of false memory syndrome in respect of count 6 and it was therefore worrying that they had convicted on other counts. Various inconsistencies in JH's evidence were pointed out, and it was submitted that the evidence could not safely be relied upon without support from an independent source. The court rejected that argument. 24. G's appeal relied mainly on criticism of the tactics adopted by G's trial counsel, who had been replaced. The court rejected that argument. However, at the end of the judgment, Buxton LJ said that the court had anxiously considered whether there was a lurking doubt about the safety of both convictions because it was a striking coincidence that J had been sexually abused by two men over the same period of time in circumstances where it was accepted that there was absolutely no connection between the two men. There was also a number of similarities between JH's evidence in respect of both men. However, the court concluded that the allegations in the two cases were not sufficiently similar to give rise to a fear that one or other or both had been fabricated or were otherwise unreliable. The court was not prepared to interfere with the conclusions of two separate juries, reached on the basis of impeccable directions and after the most careful of trials. The present appeals: Fresh evidence - Professor Martin Conway 25. In the present appeals counsel sought to introduce the expert evidence of Professor Martin Conway, an academic psychologist, now Professor of Cognitive Psychiatry at the University of Leeds. For about 25 years, he has worked and published extensively in the field of memory formation and development. He has a specialist interest in autobiographical memory. 26. In a report, which comprised answers to questions asked of him by the CCRC, he had expressed the view that some parts of JH's evidence should be regarded as unreliable. Mr Richardson QC, who appeared for the Crown, quite rightly objected to those parts of his evidence as being inadmissible on the ground that such evidence usurped the function of the jury. However, as Mr Goss QC for H submitted, there was within the report an explanation of the formation of childhood memory and the features usually to be found in memories of childhood experience, which amounted to true expert evidence. They were capable of providing a jury with information on matters that would be outside their usual knowledge and experience. Mr Goss submitted that this evidence would potentially assist a jury in its approach to the reliability of JH's evidence, particularly the evidence of her memories of very early childhood. 27. We agreed to hear Professor Conway de bene esse in order to see whether, after oral explanation of his views and cross-examination, his evidence amounted to expert evidence which would, if available, have been admissible at the trial of H and that its relevance to the issues in the case was such that it might afford grounds for allowing the appeal. 28. It had been conceded by the Crown that, in other respects, the requirements of section 23 of the Criminal Appeal Act 1968 were satisfied: the evidence was credible and there was a reasonable explanation for the defence's failure to call Professor Conway at the trial. Although much of his work was in the public domain in 2000, Mr Richardson accepted that it was not well known. 29. We do not propose to set out the whole of Professor Conway's evidence. The gist of it was that memories of early childhood are qualitatively different from memories of later events. Adults cannot usually remember events of early childhood so as to be able to give a coherent narrative account. They may remember an event, and sometimes a visual image, but the recall will be fragmentary, disjointed and idiosyncratic. This period in early childhood of which the adult will have an impoverished memory is called the 'period of childhood amnesia'. Usually childhood amnesia extends to the age of about 7. Adult memory of events relating to later childhood becomes gradually richer, more detailed and more organised. 30. In the course of his research, the professor had never come across a person who had been able to provide a detailed narrative account of an event that had taken place at the age of 4 or 5. A child of 4 might well remember something that had happened when he was 3, but by the time he was 7 or 8 he would have forgotten it and it would not be recaptured. It was possible that, if a child was regularly reminded about an event which occurred when he was very young, he might retain the memory of it. If the child had a traumatic experience, one would expect that, as an adult, he or she might recall a few - usually three or four - intrusive and disjointed features of the event. However, where the childhood event was merely unpleasant, such as a painful medical procedure or an accident such as falling off a bicycle, the adult might well remember the salient or central feature of the event but would not remember the surrounding or extraneous details. He would not be able to give an accurate and reliable narrative account. 31. Professor Conway's explanation for this state of affairs was that, during the first five years of life, the frontal lobes of the brain were in a very rapid state of change and development and material was not retained in the memory. He said that, so far as he knew, all psychologists working in the field of memory formation agreed with what he had said about the effect of childhood amnesia, although not all agreed with his view about why it occurred. 32. It was Professor Conway's opinion that, if evidence of an event said to have occurred at an early age was very detailed and contained a number of extraneous facts, it might well be unreliable. It may be that the central feature of the event had indeed occurred, although research showed that, when seeking to remember life events from childhood, it was quite common for people genuinely to believe that they could remember events which were known not to have taken place. 33. In an adult account of a childhood event some surrounding detail might well be accurate if it was derived from conceptual knowledge, which are things that the adult knows about his childhood, such as which school he went to, where he lived, or the layout of his home. However, details which do not come from conceptual knowledge may well be false or unreliable. In effect they may well have been added on to the true memory at some later time. 34. Professor Conway considered that a narrative account of an event which was said to have taken place during the years of childhood amnesia should be treated with caution, especially if it contained a number of details that were extraneous to the central feature of the event. 35. Professor Conway also said that the effect of giving an account which contained details was to enhance its credibility to the ears of the listener. Research showed that listeners responded differently to two accounts of essentially the same event. If the account included a detail, the listener was more likely to believe and accept it than if that detail were omitted. The detail might not make any difference to the information being conveyed; it might be quite without value, but its effect would be to enhance the listener's perception. What this came down to, although Professor Conway did not articulate it in quite this way, is there is a danger that if a witness gives an account of a childhood event which contains detail about which he feels confident but may well be unreliable because of childhood amnesia, the listeners (namely a jury) might find the account more convincing than they safely should. 36. We came to the conclusion that Professor Conway's evidence was true expert evidence, suitable for admission at a criminal trial, in that it provided information likely to be outside the knowledge and experience of the jury. We also considered that, in the exceptional circumstances of this case, where JH had provided quite remarkably detailed accounts of events which she claimed had taken place at the ages of 3, 4 and 5, his evidence was relevant and was capable of affording a ground for allowing the appeal of H, in that it might affect a jury's view of JH's reliability as a witness. We decided, therefore, to admit the evidence. Fresh evidence: Post trial medical records 37. There was also fresh evidence put before the court in the form of documents found within JH's post trial medical records. JH has undergone psychiatric treatment since 2001. A letter of referral written in 2003 by a Dr B seeking to arrange psychotherapy for JH with Miss G contained an account of JH's childhood abuse. It appears from this letter that JH had said things to Dr B that were inconsistent with her earlier evidence and that one statement made to Dr B was demonstrably untrue. A report of the first two consultations between JH and Miss G likewise appear to show that JH has given her at least an exaggerated or overdramatised account of past events. 38. Mr Richardson agreed this evidence "for what it was worth", as he put it. He accepted that it was credible, relevant to the issues and was capable of affording a ground of appeal. Self-evidently it had not been available at the trial. We agreed to receive the evidence under section 23 . Submissions 39. Mr Goss for H submitted that if, hypothetically, the evidence of Professor Conway and the medical records had been available at the trial, it was likely that the jury would have taken a different view of JH's reliability as a witness. Her evidence in relation to the very early allegations in counts 1 and 2 might have been seriously undermined. The effect might have extended to the later counts. When these new factors were taken into account, in addition to the inconsistencies in her evidence that were established at the trial and the inherent implausibility of her being abused by two completely unconnected men at the same time, the result might well have been an acquittal on all counts. 40. Mr Swift QC, who appeared on behalf of G, accepted that JH's evidence against G could not have been affected by Professor Conway's evidence about childhood amnesia. The allegations against G related to a time when JH was 10 and 11. However, he submitted that, if it could be shown that JH's evidence against H had been unreliable, there might well be an effect on the jury's view of the case against G. Moreover, the medical records cast doubt on JH's reliability as a witness generally, even though she had not said anything to her doctors about abuse by G. Indeed the fact that she had omitted to mention him at all might be of some significance. Mr Swift submitted that the new evidence rendered G's convictions unsafe. 41. In respect of H, Mr Richardson submitted that, even with this additional material, the case against H was overwhelming. JH had obviously been an impressive witness. The jury had also heard H at some length and had convicted him. There was no reason to fear that the result would have been different even if the new material had been available. 42. However, he agreed with the proposition put to him by Wakerley J that the effect of Professor Conway's evidence was such that it would have been incumbent on the judge to warn the jury that, if they accepted the evidence, they should approach JH's evidence with special caution. This would be because the detailed narrative accounts that she had given of the early incidents would, if Professor Conway's evidence were accepted, be inherently unreliable and yet might well sound particularly convincing. Mr Richardson accepted that an appropriate warning would be similar to the warning that is usually given in identification cases, where the judge warns the jury of the danger that a witness might be very convincing, because he or she was quite sure that the identification was correct, and yet could still be mistaken. He also accepted that if, such a warning had been necessary but had not been given, that might well render a conviction unsafe. 43. Very fairly and realistically, Mr Richardson accepted that when, in addition, the fresh evidence of the medical records was brought into consideration, this court might feel real doubt about the safety of H's convictions. In respect of G, Mr Richardson submitted that the new evidence was of lesser effect than in the case of H and that the verdicts in his case were safe. However, he accepted that, unless and until it was known how a jury would react to the new evidence if adduced by H, it would not be possible to say what effect the new evidence might have in respect of G. Conclusion 44. In the case of H, it is our view that, if the new evidence had been put before the jury, it is possible that they would have reached different conclusions and would have acquitted H of more or even all counts. We cannot say that they would have done: the new evidence falls far short of showing that JH was not abused. But we are persuaded that it might have made a crucial difference, particularly when considered together with the inconsistencies in evidence that were noted at the trial and the striking coincidence that JH should have been abused at the same time by two men completely unconnected with each other. We have concluded that the appeal should be allowed and that the convictions on counts 1 to 5 and count 7 of the indictment should be quashed. 45. We granted Mr Richardson's application for a retrial. Provided that the prosecution is satisfied that it is not against JH's interests that she should have to give evidence again, as to which independent advice will be taken, we consider that it is in the public interest that H should be retried for what are very grave allegations of abuse. 46. So far as G is concerned, the basis for allowing his appeal is less clear. Professor Conway's evidence is not irrelevant to G's case but is of less direct relevance than to H's case. The evidence of the medical records is also of less direct relevance to G, although it is by no means irrelevant. Bearing in mind that G is dead, that there is no possibility of a retrial and therefore no urgency to resolve his posthumous appeal, we decided to adjourn our decision pending the outcome of the retrial of H. We consider that the jury's reaction to Professor Conway's evidence, the view that they take of JH in the light of that evidence and the warning which we anticipate the judge will have to give are matters that will affect the strength of the appeal in G's case. Mr Swift did not seek to dissuade us from this course, unusual though it is. Accordingly, G's appeal stands adjourned. 47. We would not wish to leave this case without sounding a note of caution about the introduction of evidence of the kind given by Professor Conway in this case. It will only be in the most unusual of circumstances that such evidence will be relevant and admissible at the trial of allegations of child abuse. The evidence would be relevant only in those rare cases in which the complainant provides a description of very early events which appears to contain an unrealistic amount of detail. That, in the experience of this court, does not happen often. 48. The principles set out in R v Turner [1975] QB 834; 60 Cr App R 80 CA should be kept firmly in mind. Expert evidence is only admissible when it is likely to assist the jury on a topic which falls outside its ordinary experience. A witness's ability to remember events will, absent the special considerations arising from the period of early childhood amnesia, ordinarily be well within the experience of jurors. We would not wish it to be thought that the introduction of evidence such as that heard from Professor Conway will be helpful in any but the most exceptional case. 49. MR RICHARDSON: My Lady, this morning I saw the complainant in consultation at 8 o'clock, as I indicated last evening. Her present intention is that she would wish the case to proceed. However, when matters were explained to her, she thought it wise, as did I, that at least she should think about the matter. 50. LADY JUSTICE SMITH: I think that is very wise indeed. 51. MR RICHARDSON: She is going to see me, consequently, next Thursday morning. She has agreed additionally to see an independent psychiatrist, but such will not be instructed until we know her personal view next Thursday. I have undertaken to my learned friend that we will notify the defence solicitors soon as maybe thereafter. 52. May I say this? If a decision is made before the indictment is drafted that the case is not to proceed, I will ask that the matter be restored before your Ladyship so that the appeal could simply be quashed and you would rescind the retrial order. If, however, the matter has already gone to the Crown Court, it will be a matter for the Crown Court to dispose of in the appropriate way. 53. LADY JUSTICE SMITH: Of course if the matter were not to proceed, this court would have to reconvene in any event to consider the appeal of G. 54. MR RICHARDSON: Indeed. My Lady, then on that occasion the H appeal can be dealt with, if needs be. 55. LADY JUSTICE SMITH: I am very grateful, Mr Richardson. 56. Wakerley J said that in the event that there is not to be a retrial it would be very helpful to the court if we were to have a skeleton argument from you -- 57. MR RICHARDSON: Certainly. 58. LADY JUSTICE SMITH: -- in respect of G and of course I imagine Mr Swift will wish to address us as well. 59. MR RICHARDSON: Certainly. 60. LADY JUSTICE SMITH: But we would be grateful for your assistance. 61. MR RICHARDSON: Yes, certainly.

```yaml citation: '[2005] EWCA Crim 1828' date: '2005-07-01' judges: - LADY JUSTICE SMITH - MR JUSTICE HUGHES - MR JUSTICE WAKERLEY ```

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 1047 Case No: 201304742/C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 18th March 2014 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE KEITH MRS JUSTICE LANG --------------------- R E G I N A v DOMINIK WIELGUS --------------------- Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) --------------------- Mr R Meikle appeared on behalf of the Applicant Mr R Keene appeared on behalf of the Crown --------------------- J U D G M E N T 1. MR JUSTICE KEITH: As a result of the judgment of the Court of Appeal in DPP v Little [1992] 2 WLR 460 , the offence of battery is nowadays described as "assault by beating". This appeal relates to when someone should be charged with assault occasioning actual bodily harm as opposed to assault by beating. And where a defendant is charged with assault by beating, is it permissible for the judge to invite the prosecution to amend the charge to one of assault occasioning actual bodily harm if the judge thinks that would be the more appropriate charge? The applicant is Dominik Wielgus. He was convicted of assault occasioning actual bodily harm following a trial at Isleworth Crown Court before Judge Lowen and a jury. He subsequently received a community sentence from another judge. His application for leave to appeal against his conviction has been referred to the Full Court by the Registrar. We intend no discourtesy to the applicant if from now on we refer to him by his surname for convenience. 2. Wielgus and his girlfriend, Maha Ali, had spent the evening in question at his flat with friends of theirs. The prosecution's case was that in the course of the evening Wielgus had subjected Miss Ali to a sustained and unprovoked attack, which began in the kitchen, continued in the bathroom and then in his bedroom. She was to claim that he tried to throttle her in the course of the attack. It resulted in Miss Ali being cut, scratched and bruised, and culminated in Wielgus putting a gun which fired ballbearings to Miss Ali's head and threatening to kill them both. While all this was going on, Miss Ali sent a text to her mother asking for the police to be called. Miss Ali's sisters got to hear about that, and they both went to Wielgus's flat. They got into an argument with Wielgus, and Wielgus was alleged to have attacked them as well. 3. Wielgus was indicted on three separate counts of assault by beating relating to his alleged attacks on Miss Ali and each of her sisters. He faced a separate count relating to the gun. He was acquitted on the two counts which related to Miss Ali's sisters, and the jury was discharged from returning a verdict on the count relating to the gun when they could not agree on their verdict. This application for leave to appeal only concerns the count relating to the attack on Miss Ali, which as we have said originally charged with Wielgus with assault by beating. That was the charge on which he was arraigned, to which he pleaded not guilty and on which he was put in the jury's charge. 4. At the conclusion of the opening speech by counsel for the prosecution and in absence of the jury, the judge raised the question whether Wielgus should be facing a charge of assault occasioning actual bodily harm. He had by then seen the photographs of Miss Ali's injuries. Counsel for the prosecution told the judge that the decision to charge Wielgus with assault by beating had been taken in accordance with the Crown Prosecution Service's Charging Standards. The judge decided to leave the matter where it was for the time being. 5. The judge returned to the issue at the conclusion of Miss Ali's evidence-in-chief. He accepted that the injuries which Miss Ali claimed to have received were the kind of injuries which were generally charged as assault by beating, but he took the view that her injuries could not be looked at in isolation from the nature of the attack to which she had allegedly been subjected. He was therefore thinking of amending the indictment to substitute a count of assault occasioning actual bodily harm for the count of assault by beating. Counsel for the prosecution contended that the judge did not have the power to do that of his own motion, but having obtained instructions, counsel for the prosecution then applied for the count to be amended in that way. Despite objections from the defence, the judge granted the application. In due course, he rejected a submission at the close of the prosecution's case that Wielgus had no case to answer on the count of assault occasioning actual bodily harm, saying that there was evidence on which the jury could find that Miss Ali had been assaulted and that her injuries amounted to actual bodily harm. 6. Section 5(1) of the Indictments Act 1915 provides: "Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice." An indictment has been held to be defective where a particular count in it does not accord with the evidence. Since there was evidence that Wielgus had assaulted Miss Ali, and that Miss Ali had been cut, scratched and bruised in the course of that assault, it was accepted that the indictment could be said to have been defective so as to give the judge the power to substitute a count of assault occasioning actual bodily harm for the count of assault by beating. The question was whether that amendment could be made without causing Wielgus any injustice. 7. We deal first with the argument that requiring Wielgus to face a count of assault occasioning actual bodily harm was contrary to the Crown Prosecution Service's Charging Standards. The relevant passage in the charging standard relating to offences against the person was as follows: "As a starting point, where there is no injury or injuries which are not serious, the offence charged should generally be Common Assault. Where there is serious injury and the likely sentence is clearly more than six months' imprisonment the offence charged should generally be ABH." The injuries which Miss Ali received were not serious. It was for that reason that the judge accepted that they were kind of injuries which were generally charged as assault by beating. But the standard went on to say this: "Very occasionally, it will be necessary to depart from this basic approach in cases where the injuries are at the lower end of the scale of seriousness. In such cases the level of injury will not be the only factor to be considered, as this may not alone accurately reflect the nature and seriousness of the offence as a whole. The presence of aggravating factors will be highly relevant to the likely sentence - by way of example, an injury may not of itself turn out to be serious but the manner in which it was caused (such as through strangulation) may indicate that a sentence of more than six months is likely. However, the aggravating factors should never in themselves be the basis for deciding the appropriate charge." 8. In his ruling, the judge said that he had in mind, amongst other things, "the manner of the offence being committed and the overall criminality". He was, no doubt, referring to Miss Ali's evidence, which had been that Wielgus had smacked her in the face, dragged her into the bathroom, pushed her into the bath and turned the shower on. She had gone on to say that after she had managed to get out of the bath, Wielgus had dragged her into his bedroom, where he had slapped her in the face, held her throat with both his hands, threatened to kill her and then poured the contents of a bottle of wine over her. In our view, her evidence, if accepted by the jury, was such as to make the incident far more serious than the injuries she in fact sustained might suggest, and there was the possibility that a sentence of more than 6 months' imprisonment might be appropriate. In the circumstances, we cannot say that requiring Wielgus to face a charge of assault occasioning actual bodily harm was contrary to the charging standard, though we should add that even if it was, it is questionable whether that should afford a ground of appeal in the event of a conviction following an unimpeachable finding that the defendant had a case to answer. 9. The next question is whether the fact that the initiative for amending the indictment came from the judge meant that the amendment could not be made without injustice to Wielgus. We think not. A judge is entitled to express his own view about whether the charge which a defendant is facing is the appropriate one, provided that it is always appreciated that it is the prosecuting authority and not the judge which has the final say about whether someone should be prosecuted at all, and if so, what the appropriate charge should be. That is what happened in the present case. Although the indictment would not have been amended but for the intervention of the judge, it was ultimately the prosecution which applied for the amendment to be made. 10. The final question is whether there were any other considerations which would have made it unjust for the amendment to be made. In the light of Mr Meikle's grounds of appeal, we have considered three possibilities. First, was it too late for the amendment to be made? We think not. Wielgus' case was that he did not attack Miss Ali. To the extent that he was violent towards her, he was only defending himself from being attacked by her. The change of charge did not result in his case having to be run any differently from the way it would have been run if the indictment had not been amended, or if the indictment had charged Wielgus with assault occasioning actual bodily harm in the first place. Secondly, it is argued that the amendment resulted in injuries of the same seriousness, ie those sustained by Miss Ali's sisters, as those sustained by Miss Ali being tried as different offences. That may have been so, but there were significant differences between the nature of the alleged attack on Miss Ali and Wielgus' alleged attack on her sisters. He was alleged to have punched one of the sisters in the face just the once and to have merely pushed the other in the face. 11. Thirdly, reliance is placed on the fact that Wielgus was acquitted of assaulting Miss Ali's sisters and that the jury were unable to reach a verdict on the count relating to the gun. It is said that the jury must have regarded Miss Ali's evidence as unreliable, and they could only have convicted Wielgus of assaulting her occasioning her actual bodily harm on the basis of his account of what had happened, namely that he had done no more than he was entitled to do in order to defend himself. His account, so it is said, would not have justified a charge of assault occasioning actual bodily harm. But that is to put the cart before the horse. Whether the charge was justified depended on Miss Ali's account of what happened, not his. On her account, the charge was justified even if the jury was eventually not satisfied of her account. In the event, though, we see no basis for saying that the jury was not satisfied of her account of what Wielgus did to her. The fact that some of the jurors may not have been sure about her evidence about the gun, or that none of the jurors had been sure about what Wielgus had done to her sisters, does not mean that they were not sure about Miss Ali's evidence about what he had done to her. 12. In the circumstances, we do not think that any injustice was done by the count of assault by beating being replaced by the count of assault occasioning actual bodily harm. This application for leave to appeal against conviction must be refused.

```yaml citation: '[2014] EWCA Crim 1047' date: '2014-03-18' judges: - MR JUSTICE KEITH - 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: [2008] EWCA Crim 1792 Case No: 200604144C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 16 July 2008 B e f o r e : LORD JUSTICE TOULSON MRS JUSTICE RAFFERTY RECORDER OF HULL (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - R E G I N A v AISLING MURRAY - - - - - - - - - - - - - - - - - - - - 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 Owen QC and Mr M Oliver appeared on behalf of the Appellant Mr P Reid QC and Mr R Priestly appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: This is a tragic case. On 27 June 2003, the appellant killed her five year-old daughter, Chloe, by stabbing her with a kitchen knife more than 50 times. 2. The appellant had a long history of mental health problems, with admissions to hospital because of them. She suffers from paranoid schizophrenia, which has had a relapsing and remitting course. In bad times she suffers from psychotic episodes when she suffers from delusions and her mood becomes severely disordered. In the days leading up to the tragedy, a number of people who knew the appellant had expressed concerns about her state of mind. After the event, she was examined by a number of psychiatrists on behalf of the prosecution and the defence. 3. The trial judge, Moses J, summarised the effect of the medical evidence when he said that a plea of guilty to manslaughter by reason of diminished responsibility- "would have been a plea entirely consistent with all the medical evidence adduced by both sides and would therefore have been acceptable to the Crown, and I can indicate would have been accepted by me." He made those observations on 16 January 2004, the day on which the appellant was arraigned. She had been expected to plead guilty to manslaughter, but she pleaded guilty to murder. Some time earlier, she had been indicating that this was her intention, and the question of her fitness to plead had been considered by the various psychiatrists who had been instructed in the case. 4. In a report dated 8 January 2004, Dr Snowden, a psychiatrist instructed by the prosecution, articulated the problem very well. He said: "Aisling Murray is able to comprehend the details of the evidence against her, and follow the court proceedings, is able to instruct her solicitors and on questioning understood that she can challenge a juror." But he continued: "... I do not think she is able to plead with understanding to the indictment. By this I mean that she does not appear to be able to weigh up appropriately the contribution of her mental illness to her behaviour. Either this is because she lacks insight or (and I think this is more likely) she does have some memory still of her thoughts and emotions during the period leading up to the killing of her daughter, but does not wish to discuss this with anyone as she wishes to be punished for her crime. She would see a conviction of murder as entirely appropriate. It is I think quite clear to all of the doctors that she had a significant abnormality of mind at the material time and that if she was able to plead with understanding to the indictment she would plead guilty to manslaughter on the basis of diminished responsibility..." 5. The consensus opinion among the psychiatrists was that she was not unfit to plead in the legal sense of the term as they understood it. But, as Dr Snowden has tellingly observed in a recent report- "Psychiatric understanding and the law in relation to mentally ill defendants do not always sit together comfortably." They did not sit together comfortably in this instance. 6. The Law Commission is likely to be examining in the near future the vexed subject of fitness to plead, and this case, although unusual, may be an appropriate case for it to study, for it illustrates in acute form the problems of the potential mismatch between the legal test and psychiatric understanding in these matters. When the appellant pleaded guilty to murder, her legal team did not feel able to suggest to the judge that she lacked fitness to plead. She was therefore sentenced to life imprisonment. 7. In passing sentence, the judge said: "I have to deal with this as a case of murder, but I have to deal it in the context of overwhelming medical evidence and overwhelming past facts indicating that, for a very substantial period of time, she has been suffering from a very severe mental illness which has had an almost overwhelming impact upon her actions, not only at the time of the events when she killed her child, but also for substantial periods before." 8. The appellant now appeals against her conviction for murder with leave of the single judge. She seeks an order that the conviction be quashed and replaced with a conviction for manslaughter on grounds of diminished responsibility. If that were to be done, it is common ground between the parties that the appropriate disposal would be a Hospital Order with a Restriction Order unlimited in time. 9. This court has heard oral evidence from Dr Josanne Holloway, the consultant psychiatrist in whose care the appellant has been since 2003. The appellant is currently detained at the Edenfield Centre, a medium secure unit in Greater Manchester, under sections 47 and 49 of the Mental Health Act 1983 , but is being treated in the same way as if she were the subject of a Hospital Order with a Restriction under sections 37 and 41 of the Act . 10. Dr Holloway supports the proposal of a Hospital Order with an unlimited Restriction Order. She has explained that the appellant suffers from paranoid schizophrenia which is currently relatively well controlled, but she is still subject to psychotic episodes at times of stress, very similar to that which affected her at the time of the killing. This condition is requiring further treatment. On top of that, there are features of her personality which need attention and are susceptible to treatment which she is receiving in hospital. For those reasons, she requires, and is susceptible to, medical treatment. 11. It is also appropriate that there should be a Restriction Order because if she were free to leave at her own wish and before those responsible for her medical care believe that it would be safe for her to be released into the community, she could represent a danger to others and herself by reason of her susceptibility to relapse. 12. It is impossible at this stage to make a medical judgment when it would be appropriate for her to be released into the community, and therefore any Hospital Order should be without limit of time. 13. There remains the question whether this appeal should be allowed in a case in which the appellant pleaded guilty. It is clear from the latest medical evidence that her decision to plead guilty to murder was affected by her medical condition, which also substantially diminished her responsibility for the killing. In those circumstances, the parties are agreed, and indeed it was the prosecution who suggested this route, that the court is entitled to regard her conviction as unsafe and to substitute a conviction for manslaughter on grounds of diminished responsibility. The court accepts that argument, and the result meets the justice of the case. 14. Accordingly, this appeal will be allowed. The appellant's conviction for murder will be quashed, and a conviction for manslaughter on grounds of diminished responsibility will be substituted. We will make a Hospital Order that she be detained in the Edenfield Centre with a Restriction Order unlimited in time. 15. We are grateful to all counsel and to the doctors in this case for their help in what has been not only a tragic but exceedingly difficult case over a number of years.

```yaml citation: '[2008] EWCA Crim 1792' date: '2008-07-16' judges: - LORD JUSTICE TOULSON - MRS JUSTICE RAFFERTY ```

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: 2008/6954/A4 Neutral Citation Number: [2009] EWCA Crim 1096 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 19 May 2009 B e f o r e : THE VICE PRESIDENT (LORD JUSTICE HUGHES ) LORD JUSTICE ETHERTON MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - R E G I N A v SEBASTIAN WALLER - - - - - - - - - - - - - - - - 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 Brown appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE HOLROYDE: On 6th August 2008 this appellant pleaded guilty in the Crown Court at Peterborough to an indictment charging him on count 1 with conspiracy to rob betting offices and on count 2 with burglary and theft at a pharmacy. On 3rd December 2008 he was sentenced on count 1 to imprisonment for public protection with a minimum period of four years less the 81 days he had spent on remand in custody. No separate penalty was imposed on count 2. The appellant rightly accepts that the sentence of imprisonment for public protection was correct in principle, but by leave of the single judge he now appeals against the length of the minimum period. 2. The appellant was 24 years old at the time of the offences. He had already appeared before the courts on many occasions with convictions mainly for offences of dishonesty. Significantly his previous convictions included robbery and affray in July 2002, for which he was detained in a young offender institution for three years, and a further robbery for which in December 2004 he was sentenced to 47 months' imprisonment. In the earlier of those robberies, committed when he was 18 years old, he held a knife to the face of his victim and demanded cash. In the later, committed shortly before his 21st birthday, he entered a petrol station with his head and face covered, threatened the cashier with a meat cleaver and stole cash. He was on licence for that latter offence at the time of committing the present offences. 3. The plea to conspiracy to rob related to three offences of robbery or attempted robbery committed during the period of just over two months. All three involved what was clearly the planned targeting of bookmakers' premises at the end of the evening when the staff were in the process of cashing up. All three involved the appellant covering his head and face by way of disguise and carrying a large knife. 4. On 22nd April 2008 the appellant entered a bookmakers at about 8.50 pm and demanded cash from the manageress. He brandished a knife, the blade of which his victim estimated to be about 10 inches long. Terrified, she handed over about £650. The appellant demanded more and began to climb over the counter, but he was repelled by a courageous customer using a chair. 5. On 26th April, together with a man called Kelly, the appellant, again carrying but on this occasion not displaying a knife, went into another bookmakers at about 7.15 pm and demanded money. He left, however, when the cashier told him there was no money and, with impressive spirit, threw the empty till drawer at him to confirm her words. 6. On 29th April, again with Kelly, the appellant burgled a pharmacy in the dead of night, stealing items of stock valued at several hundred pounds. 7. Finally, on 1st May the appellant went into another bookmakers shortly before 8 pm and threatened two employees with a knife with a blade about eight inches long. He told one of them, to her great terror, that he was really going to hurt her. She handed over about £2,000. The appellant demanded more. When a further £2,000 was handed over he left. 8. He and Kelly were caught the following day, having been seen spending their criminal proceeds. On arrest, the appellant had over £1,000 in cash in his possession. 9. That brief summary of the facts suffices to make plain that the conspiracy to rob was a serious offence. Although no physical injury was caused, the appellant on each occasion covered his face, armed himself with a large knife and deliberately caused great terror to his victims. His offending was plainly planned, and was calculated to catch his target premises at the most vulnerable period of the working day. The offence was of course aggravated by the previous convictions. In particular it was aggravated by his two previous convictions for robbery involving the brandishing of sharp weapons and by his being on licence for the later of those previous offences. 10. The best point available to the appellant by way of mitigation was that he had entered guilty pleas at a time when he was entitled to full credit. The judge did indeed give him that full credit. The judge also took into account the signs in the pre-sentence report that the appellant was beginning to show some insight into the seriousness and the consequences of his offending. 11. In view of the realistic acceptance that imprisonment for public protection was correct in principle, we need not say anything more about the judge's assessment of the appellant's dangerousness, except to record that we entirely agree with his conclusion. 12. The judge began his sentencing remarks with the following words, with which also we agree: "Those who carry out robberies of small businesses can expect custodial sentences. Betting shops require the protection of the courts, particularly from armed men; and particularly when threats of violence are made which cause terror and long-term harm." The judge went on to say that in assessing the minimum period to be served he had taken a starting point of 12 years' imprisonment, which he had reduced by one-third to reflect the guilty plea. The principal submission made by Miss Brown before us today is that the minimum term is manifestly excessive and gave insufficient weight to the sentencing guidelines and the guilty plea. Counsel submits, and we agree, that each of the three robberies or attempted robbery was a Level 2 offence in the terms of the Sentencing Guidelines Council Definitive Guideline for Sentencing for Robbery, that is to say a robbery in which a weapon is used to threaten. As such, the suggested starting point in the guidelines is four years' imprisonment, with a suggested range of between two and seven years. It is pointed out in the written submissions to us that the judge's starting point here of 12 years is in fact at the top of the range suggested in the guidelines for a Level 3 offence, in which a weapon is used and serious injury caused. It must however be remembered that the guidelines are of course based on conviction after trial of a single offence by a first time offender. This appellant committed three serious robberies or attempted robberies and he was very far from being a first offender. 13. Our attention has been drawn to three recent cases: Vuillermet [2008] 2 Cr.App.R (S) 204, Razack [2009] 1 Cr.App.R (S) 17 and, perhaps most significantly, Sykes [2008] 2 Cr.App.R (S) 3. In Sykes , a case which we think was not cited to the judge below, this court reduced from seven years to five years the concurrent sentences on an offender who had pleaded guilty to three robberies of small shops, in each of which he had worn a mask and brandished a knife. Having regard to the sentencing guidelines this court took the view that an appropriate starting point would have been of the order of seven to eight years before credit was given for the pleas. Although that appellant had also committed three robberies, an obvious and important distinction between that case and this is that the appellant Sykes had only three previous convictions, all for unrelated types of offence. 14. We note that in the judgment of this court in Sykes reference is made to an earlier case, Attorney General's Reference No 149 of 2002 (Lockwood) [2003] 2 Cr.App.R (S) 94. The offender in that case, described as having "a bad record which does include robbery in the past", committed three robberies of small shops over a period of about one month. On each occasion he was armed with a large knife and accompanied by another man. He had been sentenced in a way which this court found to have been unduly lenient. This court indicated that the appropriate sentence, taking into account the circumstances of the offences and what were late pleas of guilty, would have been one of seven years. That case has a number of features of similarity to the present case, though it appears that that offender's previous conviction of robbery was not recent, and there is nothing to suggest that he was on licence at the relevant time. 15. Returning to this appeal, we fully understand why the judge took a very serious view of the case. Nevertheless, it does seem to us that the judge fell into error in taking too high a starting point and thus arriving at a minimum term which was manifestly excessive in length. In our judgment the appropriate starting point for the sentencing exercise in relation to count 1 would in all the circumstances have been one of nine years' imprisonment. Giving the like one-third discount for plea, as did the judge, and then halving the resultant term, would produce a minimum period of three years' imprisonment. 16. However, that is not the end of the matter because the appellant was, as we have said, on licence at the time of these offences. He was on licence for an offence of robbery committed on 15th October 2004 for which he was sentenced on 3rd December 2004 to 47 months' imprisonment. Although exact dates are not available to us, counsel on the appellant's behalf realistically accepts that there was something of the order of five to six months of the period of licence still to run when the appellant committed the first of the robberies encompassed by his guilty plea to count 1. Because of the date of the earlier offence and the date on which he was sentenced for it, the consequences of the appellant's reoffending whilst subject to that licence are governed by section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 , the repeal of which by the Criminal Justice Act 2003 has no effect in relation to offences committed before 4th April 2005 - see paragraph 29 of schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005, SI 2009 No 950. The judge therefore had the power to order the appellant to be returned to prison for the whole or some part of the remaining period of licence. The decision of this court in R v O'Brien [2007] 1 Cr.App.R (S) 75, especially at paragraph 67, shows that the correct way of exercising that power, if so minded, would have been to increase the notional determinate term by the relevant number of days. In our judgment there was and is no reason in principle why the appellant should not serve at least some part of the period of licence which was remaining at the time when he embarked upon committing further offences. Erring on the side of caution, it seems to us that the outstanding period of licence must have been at least 120 days. Following the approach indicated by this court in O'Brien , we think it appropriate to halve that figure and to add the 60 days to the three years that we have mentioned. 17. The result is that we are persuaded that the learned judge below fell into error and we accordingly allow this appeal to the extent that we quash the minimum period of four years and substitute for it a minimum period of three years and 60 days. From that should be deducted the 81 days which the appellant had spent on remand in custody. The result therefore is that the minimum period to be served is one of two years 344 days. Although we make that reduction in the minimum period to be served before the appellant may be considered for release on licence, and to that extent we allow this appeal, his sentence does of course remain an indefinite sentence of imprisonment for public protection.

```yaml citation: '[2009] EWCA Crim 1096' date: '2009-05-19' judges: - LORD JUSTICE ETHERTON - 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} ======

Case No: 2013/01959B1 Neutral Citation Number: [2013] EWCA Crim 773 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM NOTTINGHAM CROWN COURT MRS JUSTICE THIRLWALL Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/05/2013 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE ROYCE MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - Between : ITN News and Others Appellants - and - R Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms H Rogers QC and Mr C McCarthy for the Appellants Mr D Farrer QC and Mr J House for the Crown Miss G Irving QC for the ( Intervener on behalf of Lisa Willis, the Mother) Mr Ian Wise QC for Derby City Council (Intervener on behalf of the Children) Hearing dates: 1 st May 2013 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: 1. This is an application under s.159 of the Criminal Justice Act 1988 ( the 1988 Act ), alternatively an application under s.46(10) of the Youth Justice and Criminal Evidence Act 1999 ( the 1999 Act ) by a number of media organisations for leave to appeal against an order made by Thirlwall J at Nottingham Crown Court during the course of the notorious recent trial of Michael and Mairead Philpott and Paul Mosley. 2. Following the deaths of the six children of Michael and Mairead Philpott who were killed following a fire on 11 May 2012 in their home at 18 Victory Road, Derby, they were charged with manslaughter. In due course they were convicted by the jury. 3. One of the witnesses called by the prosecution was Lisa Willis (the mother). She had five children, four of them by Philpott. For several years she had lived at the same address, 18 Victoria Road, with Michael and Mairead Philpott. Several months before the fatal fire she had left that address. When she moved away from the area a dispute broke out between her and Philpott about the arrangements for the children. Philpott’s involvement in the fatal fire stemmed from a determination to demonstrate that the mother was unfit to care for the children, and so, the night before the case was listed for a hearing, the fire was started. The intention was that she should be blamed for it. Thus she was a crucial witness at the trial. 4. Long before the tragic events of May 2012, the life style of Michael Philpott and the women in his life, and his very large number of children, had been the subject of extensive media coverage and public interest. Photographs and images of the mother and her children appeared on television and in newspapers. She herself had appeared in three television programmes speaking about her relationship with Michael Philpott and the family’s living arrangements. 5. The first was the Jeremy Kyle show in 2006, entitled “Father to Fifteen … Wife and Girlfriend Pregnant Again”. The mother appeared with Michael and Mairead Philpott, answering questions about her relationship and the living arrangements before a live studio audience. 6. The second was “Tales of the Unaccepted – the Philpotts”. This programme was broadcast on ITV Central Television on 12 April 2007. The programme followed births of children to both Mairead Philpott and the mother of whom Michael Philpott was the father. The mother was filmed with her children. She spoke directly to the camera. The film showed the beginning of her labour at home and, after the birth of her baby in hospital, showed the baby handed to her immediately after the birth. 7. The third was “Ann Widdecombe vs the Benefit Culture”, broadcast on ITV 1 on 22 August 2009. This was an hour long documentary in which Ann Widdecombe MP explored and challenged the attitudes of the Philpott family, and the arrangements by which they were all living in the context of claims for benefits. The mother was seen from time to time throughout the documentary, and so were her children, and photographs of them all were widely published. 8. The events covered by the subsequent trial at Nottingham Crown Court attracted worldwide coverage and international interest. The coverage included images of the mother, which remain widely available on the internet, and on websites outside the jurisdiction. 9. Before the start of the trial, the Crown applied for and in accordance with s.23(1) of the 1999 Act was permitted the use of special measures. This took the form of protective screens when the mother gave evidence in court. The application was based on a statement from the mother herself, updated in oral submissions about her fearful state of mind. She was content to give her evidence, but had a number of concerns about the hearing. She was worried that her physical identity would be revealed at court. She had already taken measures to avoid any risk that anyone connected to Philpott should know of her whereabouts or know what she looked like. She was now living with her children in a house in an unknown location. She had changed their surnames and altered her appearance. If she gave open evidence she was scared “that someone will either see me and then make efforts to locate me and follow me to where I live with my children”. She said that she would tell the court the whole truth about the case, and continued that it would “be a lot easier if I cannot see Mick Philpott and he and his family and friends cannot see me”. She had been offered a number of “special measures”, but she did not wish to give evidence or answer questions by video. She wished to give evidence in court personally, but she would feel “much more comfortable and be able to give my evidence more freely” if she could be behind screens. Hence the application, supported by the Crown. 10. On 12 February 2013 an order made by Thirlwall J under s.4(2) of the Contempt of Court Act 1981 prohibited the publications of photographs of the mother or any of her five children until 5 March 2013. At the end of the day, the judge was asked whether, in the light of her order, it was permissible for newspapers or broadcast media to publish photographs of the mother and her children that evening, and in any event before she gave evidence. The judge gave a short ruling underlining that her concern was the “integrity of the criminal trial”. It was submitted to her by the Crown that any photographs appearing in the media just as she was about to give evidence would undermine the entire purpose of the order for special measures which had been made. Thirlwall J did not accept the entire breadth of the submission, but she recognised that the purpose of the order enabling the mother to give evidence behind a screen was that she would be able to give it away from the public gaze, and that public focus on her and her children would undermine her ability to give evidence. The judge noted that the publication of any such photographs would “torpedo her attempts not to be recognised, reinforcing her fears for herself and her children”. She therefore made an order postponing publication of any photographs of Lisa Willis or her children, and further ordered that any photographs that had already been published during the course of the hearing should be withdrawn. 11. The judge considered the impact of the order on the entitlement of the press to report court proceedings fairly and accurately. She concluded that written and verbal reports were sufficient to represent the public interest, and she could see no public interest in the publication of a photograph or photographs or images of the mother or her children. In any event if photographs of the mother were published the children would be immediately identified. 12. On 13 February, after an opportunity to consider the relevant statutory provisions overnight, Thirlwall J concluded that the order under s.4(2) of the Contempt of Court Act was, as she described it, “a rather clumsy and possibly erroneous route to preserve the position”. The proper route was via s.46 of the Youth Justice and Criminal Evidence Act 1999 . She was satisfied that the witness was eligible for protection within the context of the Act, and that the quality of her evidence would be diminished by reason of fear at being identified as a witness in the proceedings. The order reflected the logical consequence of the attempts being made by the mother to rebuild her life and without it, all her efforts would come to nothing. The order should therefore be made in the interests of justice. 13. The order made on the previous day was revoked, and replaced by an order under s.46 of the Youth Justice and Criminal Evidence Act 1999 . The order provided that: “(1) no photograph, pseudo photograph or other image of (a) Lisa Willis (b) Her children or any of them (with or without Lisa Willis) Shall be published in any way which connects them or any of them (whether through reports of these proceedings or otherwise howsoever) to the case of R v Michael Philpott , Mairead Philpott and Paul Mosley ”. The press and media were given liberty to apply for amendment or revocation of the order on 24 hours notice. 14. Immediately after the order was made, the mother began her evidence. So as to avoid any disruption of the trial, the media postponed their application for the revocation of the order until the end of the evidence, after closing speeches were underway. The evidence of the mother was given in open court, and was widely reported throughout the media. No one has suggested that the media was unable to report her evidence in meticulous detail, or inhibited, let alone prevented from doing so, by Thirlwall J’s order. 15. On 3 April the media application for revocation of the order was heard and dismissed. In her judgment next day Thirlwall J made clear that she could not, and that she did not believe that anyone listening to the case would, find it “easy to understand the purpose” of publication of photographs or film of the mother and her children. After considering submissions on behalf of the media and the Crown which in effect were repeated before us, she concluded that the jurisdiction to make the order prohibiting publication of the photographs was based on or created by s.46 of the 1999 Act , and that notwithstanding that an internet search would produce images of the mother on websites outside the jurisdiction, the order should not be revoked. She reflected on the Article 8 rights of the witness and the Article 10 rights of the press, without regard to the Article 8 rights to the children. She concluded that there was not “the slightest doubt” that such publication would have “a very damaging effect” on the mother and her children. Section 46 of the 1999 Act 16. Every court in England and Wales conducting criminal proceedings may make a reporting restriction order applicable to any adult who is a witness in the proceedings (other than a defendant). The protection of child witnesses is ensured by s.39 of the Children and Young Persons Act 1933 . 17. Section 46(6) defines a reporting direction as: “A direction that no matter relating to the witness shall during the witness’s life time be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings.” 18. Publication of the name and address of the witness, any educational establishment attended by the witness, the identity of any place of work, and “…(e) any still or moving picture of the witness” may be prevented. 19. The order may only be made in support of a witness eligible for statutory protection. The “eligibility” requires the court to be satisfied: “3(a) that the quality of evidence given by the witness, … is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings”. 20. In deciding whether any particular witness qualifies for eligibility the court must: “(4) … take into account, in particular (a) the nature and alleged circumstances of the offence to which the proceedings relate; (b) the age of the witness; (c) such of the following matters as appear to the court to be relevant namely (i) the social and cultural background and ethnic origins of the witness (ii) the domestic and employment circumstances of the witness, and (iii) … (d) any behaviour towards the witness on the part of (i) the accused, (ii) members of the family or associates of the accused, or (iii)” In addition to these specific matters, the court must also “consider any views expressed by the witness”. 21. Provided the witness is eligible for protection and that it is appropriate for a reporting direction to be made, before making the order, the court must consider: “(8) … (a) whether it would be in the interest of justice to do so, and (b) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”. 22. If the eligibility test is met, the court may also impose a reporting direction which is subject to “an excepting” directions, dispensing with restrictions which might otherwise be thought appropriate. Dealing with it broadly, the effect is that the court may limit the reporting direction, as it did here, to a photograph or film of the witness. In short the effect of any restriction should be limited to those which are reasonable bearing in mind the context of the public interest in the reporting of proceedings. 23. The reporting restriction may be revoked by the court of trial or an appellate court, that is “court dealing with an appeal … arising out of the proceedings …”. (s.46(12) The application 24. The first issue is to identify the basis on which Thirlwall J’s decision may be considered by this court. When she refused to revoke the restriction decision, the main submission was that the s.46 order was made without jurisdiction and that accordingly it should be revoked under s.46(10). There is no doubt that a reporting restriction may be revoked by the appellate court in any “proceedings” before this court. However, the present application, of course, is confined to the restriction order. The court is not otherwise concerned with any proceedings between any of the three defendants at trial and the Crown, or indeed any issue arising from it. 25. Section 159(1)(a) and (b) of the 1988 Act enable an applicant to apply to this court for leave against a reporting restriction order made in relation to a trial or indictment under s.4 or s.11 of the 1981 Act and s.58(7) and s.58(8) of the Criminal Procedure and Investigations Act 1996 . Section 159 goes on to provide that the application may also extend to: “… (b) any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial; and (c) any order restricting the publication of any report of the whole or any part of the trial on indictment or any such ancillary proceedings …” 26. These provisions are designed to enable the media or any member of the public aggrieved by an order restricting access to a trial in the Crown Court to invite this court to interfere with, amend or revoke the order. Given the importance attached to the principle that criminal justice should, so far as possible, be exercised in public, it should therefore be given the widest possible construction. In our judgment a reporting restriction within s.46 of the 1999 Act falls within the ambit of S.159(1)(c) of the 1988 Act , and does so even when the restriction on reporting is confined, as this order was, to photographs or film. If the order should not have been made, and in particular if there was no jurisdiction enabling the order to be made, it should be revoked whether or not any other proceedings are before this court. 27. In the event of an appeal against conviction or sentence (or indeed a Reference by the Attorney General) then, in accordance with s.46(12) of the 1999 Act the jurisdiction of the Court of Appeal to revoke any restriction or “excepting” order would be immediately engaged without the need for further reference to s.159 of the 1988 Act . However where there is no such appeal, but the media remains aggrieved by the restriction order, s.159 provides the route to a remedy. 28. The issues raised on behalf of the media merit attention in this court, and accordingly leave to appeal under s.159(1)(c) is granted. The decision 29. Stripped to essentials, the submission by Ms Heather Rogers QC is that the meaning given to reporting direction in s.46(6) did not extend to the order made by Thirlwall J, notwithstanding that the order itself was very limited in its scope, confined as it was to any photograph, pseudo photograph or other image of the mother and her children. Naturally enough, Ms Rogers began her submissions by underlining the importance of the principle of open justice. We agree, and need no anxious repetition of the many statements of principle to demonstrate the reasons why we do agree. Her next submission was that the Crown Court had no powers at common law to make any such order. The power to do so was contained in statute. We agree. She submitted that an order for special measures did not of itself justify the reporting direction, and that the reporting direction should not automatically follow any special measures order. Again, we agree. Section 46 provides a distinct power which may be exercised alongside a special measures direction, but also, separately from it. Eligibility for such a reporting restriction does not automatically follow from the need for special measures. It requires a distinct fact finding decision. Yet again, we agree. She suggested that the protection of the children of the adult witness did not arise in the context of s.46. These were issues better addressed, and more important, properly addressed, in family courts. Dealing with it generally, we immediately recognise the force of the submission that in relation to the identification of children (taken separately from that of their parent) the Family Division is normally the appropriate venue. Nevertheless the criminal courts must control their own processes, and the fact that the family court may protect the identity of the children, is not sufficient on its own to deprive the Crown Court of the jurisdiction under s.46. The eligibility conditions may be established as here, where publication of the photographs of her children would be likely to lead to the identification of the mother, and the risks would be likely to impact on the quality of the mother’s evidence at trial. As Mr David Farrer QC for the Crown observed, the order offered “reassurance to a witness to preserve the integrity of his or her evidence”. In our view reference in the order to the children was integral to the eligibility test as it applied to their mother. 30. The crucial difficulty is at the last stage of Ms Rogers’ submission. She submitted that the mother has already been identified by previous publications, television programmes, and the internet. Indeed the name of Lisa Willis, and her identification as the mother of children of whom Philpott is the father is effectively common knowledge. She gave her evidence as Lisa Willis. In that sense she was and is fully identified as a witness. 31. The difficulty with this submission arises from the reality that in the overwhelming majority of cases the “identity” of every witness is known. If the jurisdiction to make an s.46 order were restricted in the way suggested, the “eligibility” test would be virtually confined to the rare case of the anonymous witness. Anonymity, however, is an entirely distinct and extreme form of special measure for which a separate statutory system is in place. Without repeating s.46(7) it seems clear that it extends beyond the bare naming, that is the identifying, of the witness. Thus a still or moving picture of the witness may be prohibited if the “eligibility” test is satisfied, whether or not the name and identity of the witness is otherwise known. This approach is reinforced by analysis of the wide ranging “excepting” direction in s.46(9). This sub-section anticipates that the ambit of the reporting restriction may be much wider than the mere naming of the witness. It anticipates that the reporting restriction may impose substantial restrictions on reporting which, in the context of the public interest, are unreasonable. If Ms Rogers were right neither the provisions in s.46(7) nor those in s.46(9) would be necessary. As it is they demonstrate that the ambit of the reporting direction is much wider than she suggested, but s.46(9) also underlines that even when a reporting restriction is appropriate, it should be no wider than necessary to avoid any diminution in the quality of the evidence to be given by the witness. 32. In our judgment this order was appropriately made. The appeal is accordingly dismissed.

```yaml citation: '[2013] EWCA Crim 773' date: '2013-05-21' judges: - MR JUSTICE ROYCE - MR JUSTICE GLOBE ```

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: [2018] EWCA Crim 175 Case No: 201702519/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 24 January 2018 B e f o r e : LORD JUSTICE FLAUX MRS JUSTICE NICOLA DAVIES DBE HIS HONOUR JUDGE BIDDER QC (Sitting as a judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v RICHARD CAMPBELL - - - - - - - - - - - - - - - - - - - - - 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 C Langley appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) LORD JUSTICE FLAUX: On 7th April 2017 following a trial in the Crown Court at St. Albans before His Honour Judge Andrew Bright QC and a jury, this applicant, now aged 34, was convicted of a count of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. He was acquitted on a count of attempted murder. His co-accused, Thomas, was acquitted on both counts. On 5th May 2017 the applicant was sentenced by the same judge to an extended sentence of 15 years, with a 10 year custodial term and a five-year extension. He now renews his application for leave to appeal against sentence following refusal by the single judge. On the evening of 21st October 2016 the applicant was in a nightclub in Stevenage. He and the victim, Adrian Simpson were seen talking and at the bar together. There was clearly animosity between them which developed into physical violence. They were restrained by security staff and Simpson was ushered from the club. He returned at about 1 am when the club was winding down and continued the argument. At one point the applicant threw a hot drink into Simpson's face. A man called Dhillon, who knew Simpson, offered to drive him home. Shortly after they drove off, Simpson asked him to stop the car and got out. Dhillon saw the applicant and Thomas walking towards Simpson and he was sufficiently concerned that he drove straight to the police station to alert the police. Simpson took out a gun and fired it towards the applicant and Thomas, possibly more than once, but missing them. The applicant ran towards Simpson with the knife he had with him. A fight may have ensued, but either when Simpson tripped and fell over or was overcome and on the ground as a consequence of the fight between himself and the applicant, the applicant jumped on top of him, held him down and stabbed him repeatedly to the chest and upper body. He ignored calls from other people to stop and carried on stabbing Simpson, who received a total of 11 stab wounds, together with defensive injuries to his hands as he tried to protect himself. The injuries to his chest and upper body were potentially fatal and his large intestine was hanging out of his body. Eventually the applicant left Simpson alone and he and Thomas left, leaving Simpson bleeding heavily in the street. A friend of Simpson took him to the hospital in his car where he underwent life-saving surgery. Police arrived at the scene and found a large pool of Simpson's blood. They found the knife nearby with his blood on it, together with the applicant's DNA. He was subsequently arrested, and refused to answer any questions put in interview. The applicant had nine previous convictions for offences committed between 2003 and 2016, although it is fair to say that none of them was of any particular seriousness. In March 2005 he was sentenced to eight weeks' imprisonment for an offence of having an offensive weapon in a public place, and in September 2015 he received a community sentence again for having a bladed article in a public place on two occasions. In 2008 he was sentenced to eight weeks' imprisonment for battery and in 2014 he received a conditional discharge for assaulting a constable. Most recently in October 2016 he was fined by the magistrates for possession of ammunition without a certificate. He also had convictions for three drug-related offences. The judge had adjourned sentence for a pre-sentence report. That report referred to the applicant being involved in gang activity. The report indicated that his complete lack of regard and remorse for his offending was a cause for further concern with regard to the risk of harm he posed to others and his risk of committing similar violent behaviour in the future. He was fully culpable for his offending behaviour. His previous offending behaviour indicated there was a pattern of drug-related and violent offending. The risk of serious harm that he posed could not be managed appropriately in the community. He was assessed by the author as posing a high risk of serious harm to the victim of the index offence and to members of the public. He referred to his previous convictions for possession of weapons and police intelligence suggesting that he had easy access to firearms and weapons. The author concluded that he met the criteria for dangerousness. Importantly in sentencing the applicant, the judge accepted that the pre-sentence report erroneously referred to his involvement in gang culture and previous domestic violence which had no bearing on the conclusion which the judge reached. The judge said in terms that he was not sentencing on the basis of gang membership or anything relating to gangs, of which there was no evidence whatsoever. However, having listened with care to the evidence given at the trial, the judge said that he was able to make his own factual findings and sentenced him on that basis. The judge accepted for the purposes of sentence that Simpson had discharged a firearm which he had with him in the applicant's direction. He then described the applicant's attack on Simpson. The judge said that what the applicant did was not done in excessive self-defence, as contended on his behalf, but in retaliation for what Simpson had done to him and he sentenced the applicant on that basis. The judge agreed with the author of the pre-sentence report at least to this extent, that the applicant's record indicated that there was a pattern of drug-related and violent offending behaviour and he noted the disclosure by the applicant to the probation officer that he habitually carried weapons in public. The judge agreed with the conclusion of the pre-sentence report that the applicant was a dangerous offender, although not necessarily by the same route. He considered that that conclusion was justified by the very circumstances of the offence and the way the applicant had behaved and concluded also that an extended sentence was appropriate. The offence was clearly within Category 1 of the relevant Guideline which had a starting point of 12 years' custody and a range of nine to 16 years. The judge found that previous convictions were an aggravating factor but he treated as a significant mitigating factor the fact that Simpson discharged a firearm in the applicant's direction shortly before he had launched his attack upon Simpson with the knife. Taking into account the mitigating and aggravating factors, the judge concluded the custodial term should be 10 years' imprisonment and the extended licence period was set at five years. In his grounds of appeal, and in his attractive oral submissions to this court, Mr Langley does not challenge either that the offence fell within Category 1 or the custodial term of 10 years' imprisonment. The only aspect that is challenged is the finding of dangerousness and the passing of the extended sentence. Mr Langley submits first that the judge paid insufficient regard to the fact that at first the applicant was acting in self-defence after Simpson was shooting at him, and that even if the judge was right that the applicant acted in retaliation, the circumstances were so extreme that they could not be the foundation of a finding of serious harm to members of the public in the future since the circumstances in which the applicant found himself were unlikely ever to happen again. In our judgment, the judge was quite right to reject any suggestion that the applicant was acting in self-defence at the time when he was stabbing Simpson on the ground. The attack on Simpson was retaliation, notwithstanding the provocation, and this was a violent, frenzied attack with a knife that caused near fatal injuries. The very nature and circumstances of the offending and the applicant's violent behaviour and complete loss of self-control pointed strongly to him satisfying the criteria of dangerousness. It was no answer to say that the specific circumstances might not recur. The judge was entitled to find that the propensity for extreme violence which this offence in itself demonstrated established without more that this applicant was dangerous. Mr Langley submitted that because the finding of dangerousness in the pre-sentence report was based on inadmissible police intelligence and an incorrect assessment that the applicant was involved in gang activity and habitually carried a knife, those conclusions are likely to have influenced the judge and in effect tainted his decision. Like the single judge, we do not consider that there is anything in this point. The judge made it quite clear that he was leaving out of account the erroneous parts of the report. His finding of dangerousness was based upon his own assessment of the applicant and of the offence, having heard all the evidence at trial. Mr Langley pointed out that this offence was far more serious than any of the applicant's previous convictions which did not involve specified offences and that the longest previous sentence of imprisonment was eight weeks, suggesting that the previous convictions were no indication of what might happen in the future. That is of course true, but it seems to us that the judge had that point well in mind. The reality is, as we have said, that the very circumstances and extreme violence of this offending justified the finding of dangerousness which, as we have indicated, the judge was best placed to make. Notwithstanding the submissions made by Mr Langley, we consider that there is nothing in these grounds of appeal and this renewed application is refused. 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: '[2018] EWCA Crim 175' date: '2018-01-24' judges: - LORD JUSTICE FLAUX - MRS JUSTICE NICOLA DAVIES DBE - HIS HONOUR JUDGE BIDDER 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. NCN: [2020] EWCA Crim 1297 IN THE COURT MARTIAL APPEAL COURT Case No: 2018/04144/B3 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 6 th October 2020 LORD JUSTICE DAVIS MR JUSTICE JEREMY BAKER MR JUSTICE HOLGATE ____________________ R E G I N A - v – CHRISTIAN FRANCIS McINTYRE ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) ____________________ The Appellant did not appear and was not represented Mr J Polnay appeared on behalf of the Secretary of State for Defence Captain J Farrant RN appeared on behalf of the Service Prosecuting Authority ____________________ J U D G M E N T Tuesday 6 th October 2020 LORD JUSTICE DAVIS: 1. This is an appeal against a sentence imposed at a Court Martial. The appeal follows a reference under section 34 of the Court Martial Appeals Act 1968 by the Secretary of State for Defence, and thus is to be treated as an appeal against sentence by the person convicted. The appeal is based solely on a technical jurisdictional point by reference to certain provisions of the Armed Forces Act 2006 . 2. The Service Prosecuting Authority was represented before us by Captain Farrant RN. The Secretary of State was represented before us by Mr Polnay. We are grateful to them for their helpful written and oral arguments. Neither of them had appeared in the proceedings below. 3. The appellant, Mr McIntyre, was represented by counsel below, but has not been represented before us. Shortly before the hearing today, he had made a request for an adjournment of today's hearing. He said, amongst other things, that he was now contemplating (although it would be very much out of time) appealing against his conviction. This court declined to adjourn the matter. Furthermore, we were informed this morning by Captain Farrant that Mr McIntyre had requested anonymity for the purposes of today's hearing, but that application must also be declined. This is an open court matter and he has no entitlement to the anonymity, which he seeks. 4. The background facts can be shortly stated and are as follows. The appellant was at the relevant time a corporal in the Army Reserve. On 12 th June 2016, he had been returning from training with his unit. It is not totally clear from the papers whether all were in uniform, although most probably they were. At all events, their coach stopped at a service station in Exeter. The Company Sergeant Major, Warrant Officer Lovell, approached the appellant who was at a fast food outlet. He told the appellant to get a move on and to return to the coach immediately, whereas the appellant thought that they had, or should have, been given more time. It appears that in the past relations between the appellant and Warrant Officer Lovell may not have been of the best. Be that as it may, the appellant followed Warrant Officer Lovell and said words to the effect "Can we have a word? I do not like the way you have just spoken to me", and persisted in saying that. Warrant Officer Lovell replied "Not now". The two ended up face to face, within inches of each other, and the appellant then head-butted Warrant Officer Lovell, who fell to the ground, bleeding from his nose. This all took place in the presence of other members of the unit. Warrant Officer Lovell was taken to hospital with swelling to his nose. 5. There were various disputes at the hearing as to precisely what had occurred between the two and how each of them had behaved, but there was no dispute that the appellant had headbutted Warrant Officer Lovell and had caused him injury. In essence, the defence case was that the appellant had acted in self-defence, whereas the prosecution said that he had become angry and, in effect, had lost his temper and lashed out at Warrant Officer Lovell. At all events, on the evidence as placed before them, the Panel's decision was that they had been made sure of the appellant's guilt. 6. It is clear that the Panel gave full weight to the mitigation advanced and indeed indicated that there were reasons for circumstances of some leniency. All the same, it was considered necessary, given the military context, that there be a sentence of service detention, which was fixed at a period of 30 days. In addition, the appellant was reduced to the rank of lance corporal. 7. We have been told that, subsequently, after serving the relevant part of his period of detention and after completing the period of his service, which we gather was in the region of 12 years, the appellant has since chosen to leave the Army Reserve. 8. On the face of it, there is nothing whatsoever excessive about this sentence. It may possibly be the case that in a civilian context an offence of this kind, committed by someone without any previous relevant convictions (which is the position of the appellant), might perhaps not have attracted a custodial sentence. But, of course, what happened here took place in a military context. It was a very serious matter that the appellant should have struck a superior, having disobeyed an instruction by him, and moreover should have done so in the presence of others from his unit. In no way can the sentence imposed be described as excessive. Indeed, it was not even severe. It could no doubt properly have perhaps been somewhat longer in terms of detention, and indeed a sentence also might have required him to be at least reduced to the ranks, if not dismissed from the army. 9. However, that is not the point of this appeal. It is nothing to do with whether or not the sentence was excessive. Indeed, the appellant has never lodged grounds of appeal seeking to challenge the sentence as excessive. The position which arises is purely jurisdictional. 10. In underlying terms, the offence with which the appellant was charged by reference to section 42 of the Armed Forces Act 2006 was an offence of battery. Battery is an offence listed in Part 1 of Schedule 1 to the Armed Forces Act 2006 , for which a summary hearing is available. By sections 52 and 53 of the Armed Forces Act 2006 , such a summary hearing, if there is one, is to take place before a defendant's commanding officer. 11. However, in the present case, at such a hearing the appellant elected for Court Martial trial instead, as he was entitled to do, under section 129 of the Armed Forces Act 2006 . But by reason of the provisions of section 165 and paragraph 6 of Schedule 3A to that Act, the sentencing powers of the Court Martial are limited in such circumstances, that is to say where the accuse has elected for trial by Court Martial, to the sentence available on a summary trial. Then, by sections 132 and 133 of the Armed Forces Act 2006 , such a sentence is limited, that is to say in a case where a commanding officer has heard the matter summarily, in terms of service detention to 28 days for a person of or below the rank of leading rate, lance corporal or lance bombardier, or corporal in the air forces. 12. The provisions do, it is true, under section 133 , allow for an increase by the appropriate higher authority of the powers of punishment to a maximum of 90 days' service detention. Such an increase was granted, or purportedly granted, by Brigadier Bowder as higher authority in this case on 30 th January 2017. However, what that higher authority did not purport to do, or could do, was to increase the period of detention for persons above the specified ranks of leading rate, etc. In the present case, the appellant was a full corporal in the Army Reserve. Accordingly, in such circumstances, a period of service detention was not available to the commanding officer on a summary trial. 13. If a situation such as this occurs and an accused is of a rank higher than leading rate and so on, then the appropriate course, if a period of service detention is contemplated as a significant possibility, would appear to be to refer the matter to the Director of Service Prosecutions before any summary trial is undertaken, by reference to the provisions of section 123(2)(e) of the Armed Forces Act 2006 . Had that been done, it was common ground before us, that the jurisdictional limits on the powers of the Court Martial as to service detention would have been removed. But in the present case, as will be gathered, that did not happen. 14. Unfortunately, the correct position was not communicated to the Deputy Judge Advocate General at the hearing – and this, moreover, notwithstanding that he had on occasion raised reservations as to the point. No criticism can attach to the court in such circumstances where it was not correctly apprised of the true legal position or of the sentencing limitations available to the Court Martial in the circumstances which had taken place. 15. In all such circumstances, this court has no option but to quash the sentence in so far as it imposed service detention of 30 days. Quite simply, the Panel of the Court Martial had no jurisdiction to pass such a sentence. However, we add that there was and is no jurisdictional limitation on the reduction of the appellant's rank to that of lance corporal. 16. The question then is: what sentence is to be substituted? On the one hand, the appellant had received a sentence otherwise richly justified because, as we have said, he had struck a superior, had disobeyed an instruction, and had done so in the presence of others from his unit. The sentence, as we have indicated, could indeed be regarded as a lenient one, although it is right to emphasise that the Panel explained fully why it had reached that conclusion, giving full weight to the powerful mitigation that was available to the appellant. On the other hand, the fact is that the appellant has received a sentence of service detention when he should not have been sentenced to detention at all because of the jurisdictional problems. 17. Overall, and bearing in mind the gravity of the appellant's conduct, we consider that the right course in all the circumstances is to quash, as we must, the service detention element of the sentence. Having regard to all the circumstances, we will retain the sentence in so far as it made a reduction of the appellant's rank to the rank of lance corporal. We also think it appropriate that he be made subject to a severe reprimand. 18. Finally, we add that this case can be taken to stand as a salutary reminder that where an accused is above the rank specified in section 132 of the Armed Forces Act 2006 , careful consideration always needs to be given as to whether the matter in question should be referred to the Director of Service Prosecutions before any summary hearing takes place. _______________________________ 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 1297' date: '2020-10-06' judges: - LORD JUSTICE DAVIS - MR JUSTICE JEREMY BAKER - MR JUSTICE HOLGATE ```

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 apply to the contents transcribed in this document, as stated in paragraph 4 of the judgment, because the case concerned sexual offences and involved children. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2022/02887/B1 [2023] EWCA Crim 730 Royal Courts of Justice The Strand London WC2A 2LL Tuesday 23 rd May 2023 B e f o r e: VICE- PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION ( Lord Justice Holroyde ) MRS JUSTICE McGOWAN MR JUSTICE BRIGHT ____________________ R E X - v - A Y S ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _____________________ Mr M Magarian KC appeared on behalf of the Applicant Miss E Acker appeared on behalf of the Crown ____________________ J U D G M E N T ( Approved ) ____________________ Tuesday 23 rd May 2023 LORD JUSTICE HOLROYDE: 1. On 20 th October 2021, following a trial in the Crown Court at Kingston Upon Thames before Mr Recorder Nicholson-Pratt and a jury, the applicant was convicted of an offence of indecent assault committed many years ago against his younger sister, "C". He was acquitted of two similar charges relating to a cousin, "C2". 2. At a sentencing hearing on 10 th December 2021, he was made subject to a suspended sentence order. 3. He now applies for an extension of time (313 days) in which to apply for leave to appeal against his conviction. His applications have been referred to the full court by the single judge. 4. C and C2 are entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992 . Accordingly, during their respective lifetimes no matter may be included in any publication if it is likely to lead members of the public to identify either of them as a victim of one of the offences or a person against whom offences were alleged to have been committed. In view of the familial relationships between the applicant, C and C2, it will be necessary for any report of these proceedings to be anonymised by replacing the applicant's name with the randomly chosen letters A Y S. 5. For present purposes we can summarise the relevant facts briefly. C alleged five incidents of behaviour by the applicant which would be capable of constituting the actus reus of an offence of indecent assault, contrary to section 14 of the Sexual Offences Act 1956 . She said that the first four incidents occurred when she was aged between about 5 and 7 years, the fifth when she was aged about 10 years. On that fifth occasion, she said that the applicant had come into her bedroom in the family home, taken down her clothing and pushed his penis against her stomach. The applicant is six years and seven months older than C. Accordingly, the allegations related to a period when he was aged between about 11 and 16. 6. By section 50 of the Children and Young Persons Act 1933 a child aged under 10 is irrebutably presumed to be incapable of committing a crime: doli incapax , to adopt the Latin phrase which is commonly used. During the period to which C's evidence related, there was also a rebuttable presumption that a child aged 10 or more, but under 14, was also doli incapax . That presumption could be rebutted if the prosecution proved that the child knew that his actions were seriously wrong and not merely naughty. That rebuttable presumption was abolished, by section 34 of the Crime and Disorder Act 1998 , with effect from 30 th September 1998. 7. The fifth incident alleged by C was the subject of count 1 on the indictment, the offence of indecent assault of which the applicant was convicted. The prosecution accepted that the earlier four incidents may have occurred when the applicant was aged under 14 and before 30 th September 1998. The prosecution also conceded that, owing to the passage of time, they had not been able to obtain evidence to show that the applicant knew at the time that his alleged actions were seriously wrong. The prosecution therefore did not charge any of those four incidents as a criminal offence. Instead, relying on R v DM [2016] EWCA Crim 674 , the prosecution applied to adduce C's evidence relating to those incidents as bad character evidence, admissible as important explanatory evidence under section 101(1) (c) of the Criminal Justice Act 2003 and/or as evidence relevant to an important matter in issue between the prosecution and the defence under section 101(1) (d) of that Act . 8. That application, which was opposed by those then representing the applicant, was granted by Her Honour Judge Kent. Basing her ruling on the reasoning in R v DM , Judge Kent held that the first four incidents alleged by C were capable of amounting to reprehensible behaviour and so were evidence of bad character, as defined by section 98 of the 2003 Act . She was satisfied that the evidence was admissible both through gateway (c), because without it the jury would find it difficult to understand the context of C's evidence relating to count 1, and through gateway (d), because it was capable of showing a propensity on the applicant's part to behave towards his sister in the way alleged in count 1. 9. Judge Kent further concluded that the admission of the evidence would not have such an adverse effect on the fairness of the proceedings that it ought not to be admitted and so declined to exclude the evidence, pursuant to either section 103(3) of the 2003 Act , or section 78 of the Police and Criminal Evidence Act 1984 . Her reasons, in summary, were that the jury could and would be appropriately directed, C's evidence could be tested in cross-examination, the applicant could give and/or call relevant evidence if he wished, and the jury needed to hear the evidence so as to understand the relationship and behaviour between brother and sister. 10. Accordingly, C gave evidence of all five incidents. In addition to her evidence, the prosecution relied at trial on evidence of her complaints to others long before her allegations were reported to the police, and on "cross-admissibility" with the evidence of C2. The prosecution also relied on evidence, which ultimately went before the jury in the form of an agreed fact, that on 4 th February 2012 the late grandmother of the applicant and C had signed a letter of wishes to accompany her will, in which she said that she did not want to include the applicant as a beneficiary under her will "as I have reason to believe that he acted inappropriately with his sister [C] when they were both younger". 11. The applicant gave evidence at trial denying any improper activity with either C or C2. It was part of his case that C had made false allegations about him to their grandmother so that he would not benefit under the grandmother's will . 12. At the conclusion of the applicant's evidence the Recorder asked him a number of questions, including the following exchange. Having asked about the period when the applicant was at senior school, the Recorder asked: "Q. … Did you have sex education at school during this time? A. Yes, we did. Q. So, would it have been clear and apparent to you that touching a young person would have been seriously wrong? A. Absolutely, yes." 13. In his directions of law, the Recorder explained that the jury had heard C's evidence alleging the four earlier incidents, even though they were not the subject of a charge, because they formed part of the narrative background to what C said had happened to her. He directed the jury that the evidence did not tell them whether the applicant had committed the offence with which he was charged, and that they must be careful not to be unfairly prejudiced against him by what they had heard about the earlier incidents. He continued: "The prosecution say that these incidents show a propensity or a tendency to commit offences of the kind alleged, and that count 1 on the indictment did not occur in isolation. It is for you to decide the relevance (if any) of any of these other incidents, if you are sure that they occurred. In making that decision you must be sure, (1) that the incident or incidents did occur, and because the [applicant] was under the age of 14 at the time, under the law as it then was the prosecution must make you sure that he knew what he was doing was seriously wrong as distinct from mere naughtiness or childhood mischief. The third factor is the evidence that the [applicant] knew the conduct was seriously wrong must be clear, and not merely based on the acts involved in the alleged incidents themselves. It is only then that you may take the non-indicted allegations into account when deciding whether or not he has committed the offence he is indicted on, but bear in mind that the non-indicted incidents only form part of the evidence, so you should not convict wholly or mainly because of them. If you are not sure that any one or more of the non-indicted incidents occurred, you should put it or them aside when deciding whether the prosecution have made you sure of guilt on count 1." 14. Mr Magarian KC, now representing the applicant, submits that the conviction is unsafe. He puts forward three grounds of appeal. In his initial written grounds of appeal he had challenged the admission of the evidence relating to the four earlier alleged incidents and to the terms in which the Recorder had directed the jury about that evidence. Mr Magarian now accepts that the evidence was admissible under section 101(1) (d) of the 2003 Act because it was relevant to an important matter in issue, namely whether the applicant had a propensity to behave in the way alleged in count 1. He maintains, however, as his first ground of appeal, his submission that the evidence should have been excluded by the court in view of the respondent's concession that the presumption of doli incapax could not be rebutted in relation to those earlier incidents. Mr Magarian argues that the result of admitting the evidence was that doli incapax became a live issue for the jury to determine, even though the respondent had accepted that it could not rebut the presumption. Mr Magarian submits that the applicant was left with the worst of all worlds, and that the resultant position was very unfair to him. 15. Secondly, Mr Magarian submits that the Recorder was wrong to ask the applicant the questions which we have quoted. He submits that those questions assumed that the applicant had acted as alleged in the four earlier incidents. Developing this point in his oral submissions to us this morning, Mr Magarian further submits that the questioning was imprecise and unfair, so that the applicant was left with no clarity as to which period of time he was being asked about and would have felt under pressure to give answers agreeing with the apparent tenor of the Recorder's questions. 16. Thirdly, Mr Magarian submits that the Recorder should have given a fuller direction to the jury about the agreed fact relating to the grandmother's letter of wishes. In particular, he submits that the jury should have been directed that if anything had been said by C to her grandmother, it should not be treated as evidence of recent complaint. Rather, he submits, the jury should have been directed that the only relevance of that evidence was that it went to the suggested financial motivation of what the applicant said was a false allegation by C. In the absence of directions in accordance with those submissions, Mr Magarian argues that there was a clear risk of prejudice to the applicant. 17. Mr Magarian has also put forward the applicant's explanation for his delay in commencing this appeal. The applicant says that after he was sentenced he had much to contend with during the most stressful period of his life: divorce proceedings; the prospect of his children and their mother moving to another part of the country; the sale of the former matrimonial home; his own accommodation; financial matters; a demanding job; and the need to comply with the requirements of the suspended sentence order. The applicant says he "had no choice but to park the conviction situation as I did not have the capacity to handle that on top of everything else". He adds that at the time he had lost trust in the legal system and "had just about given up with it all". 19. Miss Acker, representing the respondent in this court as she did below, opposes each of the grounds of appeal. She submits: first, that the evidence of the earlier incidents was properly admitted through both gateways (c) and (d); secondly, that the questions asked by the Recorder and the directions which he then gave about those incidents caused no prejudice to the applicant, but rather created an additional and unnecessary hurdle which the jury would have to surmount before they could use the applicant's replies as evidence supporting the prosecution case; and thirdly, that the evidence relating to the grandmother's letter of wishes was evidence which the prosecution had not initially intended to adduce, but which the defence actively wished to be before the jury as supporting the allegation of a financial motivation for C to make false allegations. 20. We are grateful to both counsel for their helpful submissions. We have summarised those submissions briefly, but have had them all well in mind and have reflected upon them. 21. We begin by addressing the application for an extension of time. By section 18(2) of the Criminal Appeal Act 1968 , notice of an application for leave to appeal against conviction must be given within 28 days of the conviction appealed against. Notice of an application for leave to appeal against sentence must be given within 28 days from the date on which the sentence was passed. Those are separate time limits, which will expire on different dates unless sentence is passed on the same day as the conviction. 22. The first problem which the applicant faces is that his explanation for seeking an extension of time starts by referring to his circumstances after the date of sentence, overlooking the important fact that by the time he was sentenced he was already out of time for seeking leave to appeal against conviction. 23. The applicant faces a further and more substantial problem. Whilst we understand the difficult circumstances in which the applicant found himself, and recognise the realities of his position, it is apparent from his account that he chose to prioritise other matters and chose for a period of many months not to take any steps to seek further advice upon, or initiate, an appeal. In an appropriate case the statutory time limit for commencing an appeal may be extended; but it is not an option which a convicted person may simply choose to postpone until the timing is more convenient for him. There is a strong public interest in the finality of proceedings, and good reason must be shown for any period in respect of which an applicant seeks an extension of time, and not just for the first few days or couple of weeks. 24. We are far from satisfied that the explanation put forward by the applicant justifies the extension of time which he seeks. In fairness to him, however, we go on to consider the merits of his proposed appeal in case the merits of his case enable us to take a more favourable view of his delay in commencing this appeal. 25. The circumstances in R v DM were materially similar to those in the present case. The appellant, DM, was alleged to have committed acts of sexual abuse against his younger half-sister when he was aged between 14 and 16. The prosecution were permitted to adduce evidence relating to two earlier incidents said to have occurred when DM was aged under 14. It is implicit in the circumstances of the case that the prosecution had not been able to prove that at the time of those incidents DM knew that behaviour of the kind alleged was seriously wrong. On appeal to this court it was held that the judge had been entitled to admit the evidence. Giving the judgment of the court, Simon LJ said at [19] that but for the age of the appellant, there could be little serious argument against the admissibility of the evidence. He continued: "The question then arises: did the appellant's age at the time call for a different approach based on the presumption of doli incapax ? In our view, it did not. The appellant was not facing a criminal charge in relation to the two incidents and therefore the doli incapax presumption had no direct application." The court went on to say at [21] that what was required in those circumstances was a direction to the jury that they must be sure that the earlier incidents occurred and, if they were, how the incidents might help them decide whether the appellant had committed the indicted offences. 26. We respectfully agree with that analysis. Applying it to the present case, and to the first ground of appeal, we have no doubt that the evidence of the four earlier incidents was admissible both through gateway (c) and through gateway (d), and that Judge Kent was correct so to rule. The evidence was relevant because it was capable of showing that the applicant had a propensity to behave, and did behave, in the manner alleged by C. If the prosecution had sought to prove that the applicant was thereby guilty of criminal offences on the earlier occasions, it would have been necessary also to prove that the applicant knew at the time that his behaviour was seriously wrong. But it was not necessary to do so before relying on the evidence as showing incidents of reprehensible behaviour admissible under the 2003 Act , because the fact of the behaviour was relevant whether or not that knowledge could be proved. 27. We accept that in circumstances of the kind raised in this case, there may be arguments that the evidence, though admissible, should be excluded because its prejudicial effect outweighs any probative value. In the present case, however, Judge Kent was, in our view, entitled, and indeed correct, to conclude that the evidence should not be excluded on the ground that it would have an adverse effect on the fairness of the proceedings. 28. We turn to ground 2. It follows from what we have already said that in relation to each of the earlier incidents, the jury only had to consider whether they were sure it happened and, if so, whether it helped them decide whether the applicant was guilty of the offence charged in count 1. With respect to the Recorder, he was in error in thinking that the prosecution also had to rebut a presumption of doli incapax before they could rely on this evidence. If that had been the position, then it would have been inappropriate for the Recorder to ask the questions which we have quoted, because by doing so he would have risked appearing to enter into the arena. In the circumstances of this case, however, it was not necessary for the prosecution to prove that the applicant knew that the alleged behaviour was seriously wrong. The questions and answers were therefore legally irrelevant and, in our view, they caused no prejudice to the applicant. On the contrary, as Miss Acker submits, they served only to place an inappropriate obstacle in the way of the prosecution's reliance on the earlier incidents. We are unable to accept the submission that the questions necessarily presupposed that the incidents had occurred as C alleged, and that the questions were for that reason unfair to the applicant. 29. In those circumstances, whilst it would have been better if the questions had not been asked, we cannot see any basis on which it could be argued that they caused unfair prejudice to the applicant, or cast doubt on the safety of the conviction. 30. We turn to Mr Magarian's third ground. It is important to emphasise that the defence wanted the evidence of the grandmother's letter of wishes to go before the jury in the agreed terms to which we have referred. That was a perfectly understandable approach for those then representing the applicant to take, given the terms of his instructions, and there is no basis on which it could be argued now that the admission of the evidence was unfair. It was also perfectly understandable that the manner of adducing this evidence was by a direct quotation of the grandmother's own words. Any form of paraphrase would have risked inaccuracy. Furthermore, we understand that C confirmed in her evidence in chief that she had told her grandmother about what the applicant had done. The Recorder had directed the jury, when dealing with matters primarily relating to C2, that "telling someone else what they say happened does not provide independent support for their evidence; it obviously comes from them". We are told that defence counsel not only did not ask for any direction beyond that in relation to the grandmother's letter of wishes, but actively resisted Miss Acker's submission that that letter might properly be the subject of a direction as to recent complaint. 31. In those circumstances we accept Miss Acker's submission that there was no risk of the jury thinking that the letter of wishes somehow amounted to independent evidence of the applicant's guilt. We are unable to accept Mr Magarian's submission that a further direction should have been given. The Recorder could not properly have directed that whatever C had said to her grandmother was not evidence capable of showing consistency, because it indicated that she had made some complaint prior to February 2012. Given that C was the source of that complaint, we are not persuaded that there was an increased prejudicial effect simply because the grandmother had subsequently died. 32. For those reasons we are satisfied that none of the grounds of appeal is arguable and that there is no basis on which it could be said that the conviction is unsafe. It follows that no purpose would be served by our granting an extension of time, even if we were persuaded that we could properly do so, because an appeal would be bound to fail. 33. The applications for an extension of time and for leave to appeal against conviction are accordingly 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: '[2023] EWCA Crim 730' date: '2023-05-23' judges: - MRS JUSTICE McGOWAN - MR JUSTICE BRIGHT ```

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 [2022] EWCA Crim 933 CASE NO 202103929/A3 Royal Courts of Justice Sitting at Mold Crown Court The Law Courts Mold CH7 1AE Wednesday 25 May 2022 Before: LADY JUSTICE NICOLA DAVIES DBE MRS JUSTICE JEFFORD DBE MRS JUSTICE COLLINS RICE DBE REGINA V CHUN XU __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR T CROWTHER QC appeared on behalf of the Applicant _________ J U D G M E N T 1. MRS JUSTICE JEFFORD: On 9 November 2021 in the Crown Court at Merthyr Tydfil, the applicant, then aged 32, was convicted following a trial of the murder of Wenjing Lin and the attempted murder of Yongquan Jiang. Wenjing was the 16-year-old daughter of Meifang Xu and Yongquan was Meifang’s husband and stepfather to Wenjing. 2. On 12 November 2021 the applicant was sentenced to life imprisonment for the murder of Wenjing with a minimum term of 30 years. For the attempted murder of Yongquan he was sentenced to 25 years' imprisonment to run concurrently. He sought leave to appeal in respect of the minimum term. Leave was refused by the single judge and he now renews that application. 3. Meifang's parents had, in China, lived next door to the applicant's parents. She had known him since birth and treated him like a member of her family. 4. In 2020, Meifang and the applicant we both now living in the United Kingdom. The applicant and his brother-in-law collected £30,000 from Meifang which was intended to be sent back to China to repay money she had borrowed to start a take-away business. The applicant did not send all of the money to China and eventually told Yongquan that he had used, and lost, much of the money in gambling. Meifang's evidence was that £14,000 of that money had not been sent back to China. The applicant was paying off the debt that he owed to Meifang in instalments and the amount of the debt had been reduced to something in excess of £7,000. At trial there was evidence that, or that the applicant believed that, Meifang had told his sister or other members of his family about his debt and his gambling. 5. On 4 March 2021 the applicant visited Meifang and her family at their take-away business, the Blue Sky Chinese take-away in Treherbert. The applicant had called Meifang the day before asking to visit, which was unusual, and had asked Meifang not to tell anyone else that he was visiting. He spent the afternoon and the evening with the family and after the shop closed at around 11 pm they all had dinner, before going to bed. The applicant stayed the night. 6. The night before that the applicant had stayed at another business in Pontypridd and had taken with him, from that business, a knife. 7. At 7.55 am on 5 March 2021 the applicant made internet searches on his mobile phone including, "Will fingerprints be burnt by fire?", "My fingerprints are on the knife. Will the fingerprints still exist after [the knife] is burnt by fire?", "Fingerprints are left on a brick if [I] burn the [brick] [can I] get rid of the fingerprints?". 8. Later that morning the applicant strangled 16-year-old Wenjing to death. Wenjing, still at school, had got up earlier than others to log on to an online maths class. She was an exemplary student who was expected to receive excellent GCSE results. Her mother heard her getting up and getting into the shower. Wenjing was exchanging Snapchat messages with a friend and the last message was sent by her at 9.27 am. Her friend tried to message her further but got no reply. By that time she had been killed by the applicant. He had strangled her face to face with his bare hands. 9. At 10.21 am the applicant rang Meifang's mobile phone. She was still asleep and did not answer. Yongquan woke at around 11 am. He saw the applicant standing at the bottom of the stairs. The applicant asked Yongquan if he could have some fish out of the freezer in the basement to take with him when he left. Yongquan, in his dressing gown and bare foot, led the way down to the basement. Yongquan then opened the freezer and bent in to get the fish out. The applicant started to stab him with a knife to his neck. Yongquan turned round and saw that the applicant had two knives. He asked the applicant what he was doing but he did not reply and kept attacking Yongquan, aiming the knife towards his head. Yongquan grabbed him to try and stop him and they fell to the floor. There was a struggle and the applicant stopped his attack saying that he was tired and asking if they should stop fighting. Yongquan took hold of the applicant's hands to protect himself and they sat on the basement stairs. He asked the applicant why he had attacked him and the applicant replied, "Money, money, money." 10. Yongquan then called out for his wife. He asked the applicant if he could ring his wife but the applicant said "No". Yongquan asked if he could ring his daughter and the applicant said he could, although he (the applicant) of course knew by that time that she was dead. Yongquan tried calling her but received no reply. The applicant then told him to stop using his phone and said he wanted to kill himself. He threw one of the knives away but kept the other. 11. Yongquan heard his wife upstairs and called out to her. The applicant then resumed his attack on Yongquan as Meifang came downstairs to the basement. Yongquan told his wife that the applicant had stabbed him from behind. She tried to call a friend, but the applicant stopped her by biting her on the arm. Yongquan then managed to get the knife off the applicant and went upstairs. There he found Wenjing lying on the floor by the shop counter. Efforts to revive Wenjing were hopeless. 12. For the purposes of sentencing and having heard all of the evidence at trial, the judge formed the view that this was a carefully and callously planned crime which the judge described as a vengeful and murderous attack. The motive for this attack on the family was revenge for Meifang having told others about the applicant's gambling and debt. He took advantage of his relationship with the family, their friendship and the fact that Meifang saw him as part of her extended family to engineer a situation in which he would stay the night and find the family vulnerable in their own home. 13. The judge was sure that the applicant's intention was to kill Meifang, but first to kill the other members of her family in such a way as to cause her the maximum possible anguish. He was thwarted in his plan, and did not go on to kill Meifang, only because Yongquan fought back and was able to subdue him. As part of his plan the appellant had taken with him a knife which he used in the attack on Yongquan. He had carried out internet searches about the destruction of fingerprint evidence by fire. 14. The applicant first quietly killed Wenjing with his hands and then lured Yongquan to the basement waiting until he was in a vulnerable position bent over the freezer to attack him from behind with two knives, slashing and stabbing him about 20 times. 15. As the judge summarised it, this was a revenge attack with the aim of killing a family in retribution for a very trivial reason. 16. In fixing the minimum term the judge carefully considered whether this offence could properly be characterised as a murder for gain. He was not sure that it was a murder for gain and he did not proceed on that basis. Instead he took as his starting point a minimum term of 15 years in accordance with paragraph 5 of schedule 21 to the Sentencing Act 2020. He properly concluded that there were no statutory aggravating features, but he took into account other aggravating features to which we have already made reference. Those were the planning of this offence including the deception of the family, the young age of Wenjing, the fact that she was murdered in her own home and the terror that she must have felt when strangled face to face. 17. If that offence of murder were to be sentenced in isolation the minimum term the judge would have fixed was one of 22 years' imprisonment. The applicant does not, and could not in our judgment, argue that such a minimum term would have been manifestly excessive. The judge had, however, also to take into account the conviction for the attempted murder of Yongquan. Having regard to the Definitive Guideline for cases of attempted murder, the judge found this to be a Category 2B case. That categorisation was accepted by the applicant in counsel's note for sentencing and it is not and could not be criticised before us. 18. Accordingly the starting point for this offence of attempted murder was a sentence of 25 years' imprisonment and the range was 20 to 30 years. There were a number of aggravating features of this offence. Again it was planned and, in particular, the applicant had lured his victim into a vulnerable position. He used the knife or knives that he had brought with him, it was a sustained attack, and the attack on Yongquan has had a significant impact on him, to some extent physical but particularly mental in that he has lost his confidence. Further, both he and Meifang feel deeply the loss of their beloved daughter. Nonetheless the judge did not increase the sentence over the starting point and imposed a sentence of 25 years' imprisonment for this offence. 19. The judge correctly noted that the applicant would have served 16 years and eight months of a determinate sentence of that length. He similarly correctly observed that he could not simply add that to the period of the minimum term for the offence of murder, but rather that he should have regard to the criminality as a whole. He directed himself in that respect, taking account of the decision of the Court of Appeal in R v Farhad Mahmud [2014] EWCA Crim 1008 and the decision in R v Jama Ahmed [2018] EWCA Crim 739. Having done so he increased the minimum term to one of 30 years' imprisonment. In doing so he explained clearly the approach he was taking and that he was uplifting the minimum term to reflect the conviction for attempted murder and the overall criminality of the applicant. 20. Mr Crowther QC, who appears pro bono on behalf of the applicant accepts that uplifting the minimum term to take account of the conviction for attempted murder was the proper approach and indeed the one that he had advocated on behalf of the applicant. But he submits that in making that uplift the judge was wrongly double-counting the aggravating features and that the resultant minimum term was in any event manifestly excessive and did not properly reflect totality. 21. We can see no merit at all in that submission. There was some commonality in the aggravating features relating to the count of murder and the count of attempted murder. That is because they were part of the planned sequence of this attack. The planning of this attack therefore necessarily played a part both in the judge's assessment of the minimum term that he would have fixed if the offence of murder had been looked at in isolation and in the fixing of the determinate sentence for the attempted murder. In indicating the minimum term that he would have fixed looking at the count of murder in isolation, he took account of the further aggravating features of that offence. Similarly in fixing the determinate sentence for the attempted murder charge he took account of the aggravating features of that offence. What the judge was entitled to do and did was uplift the minimum term to reflect the totality of the offending and the criminality. He properly recognised that he could not add the determinate sentence of 25 years, or the element of such a sentence that would have been served, to the minimum term and instead increased the minimum term by eight years. We have already said that we do not regard that as involving any element of double-counting. Further, taking account of all the aggravating features we do not see that that could possibly be regarded as resulting in a sentence that was manifestly excessive. The minimum term of 30 years properly reflects the overall criminality of this offending. 22. Mr Crowther QC places reliance on the decisions in Mahmud and Ahmed as indicating the scale of uplift to a minimum term that might be appropriate in a case such as this, although he carefully and clearly does not go so far as to suggest that these decisions set some kind of tariff. His submission is that the uplift in these cases was, as a percentage, significantly less than in the present case. The submission is one of proportionality rather than tariff. 23. We do not consider this comparison or percentage approach to be helpful. Mahmud, for example, was a case in which there was a single act of arson which resulted in multiple deaths or attempted murders. The murder of more than one person meant that the starting point was a minimum term of 30 years and any uplift for the offences of attempted murder has to be seen in the context of that high starting point. In the present case there were two distinct offences, albeit forming part of a sequence of events. The starting point was a lower one, but one which the judge was entitled to increase both for the aggravating features of the murder and for the attempted murder. There is nothing in the decisions in Mahmud or Ahmed which points to or supports some sort of percentage approach to this uplift. 24. In short, all cases turn on their own facts. In this case the judge's sentence was unimpeachable. This appeal has no prospect of success and leave to appeal is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2022] EWCA Crim 933' date: '2022-05-25' judges: - LADY JUSTICE NICOLA DAVIES DBE - MRS JUSTICE JEFFORD DBE - MRS JUSTICE COLLINS RICE 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: [2006] EWCA Crim 1079 Case No: 2005/2239/B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NORWICH His Honour Judge Barham Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/05/2006 Before : THE PRESIDENT OF THE QUEENS BENCH DIVISION MR JUSTICE MACKAY and MR JUSTICE GROSS - - - - - - - - - - - - - - - - - - - - - Between : R v CARD - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M McNiff (instructed by the Registrar of Criminal Appeals) for the Appellant Mr W. Carter (instructed by the CPS) for the Crown Hearing dates : 6 th April 2006 - - - - - - - - - - - - - - - - - - - - - Judgment President of the Queen’s Bench Division: 1. This is an appeal by Clifford Card against his conviction at Norwich Crown Court, before His Honour Judge Barham and a jury, on count 2 of a two count indictment alleging sexual assault, on a child aged under 13 years. He was acquitted of count 1, an alleged sexual assault on a different child, by direction of the judge at the close of the prosecution case. Count 1 related to a child named Monica, aged 5 years and count 2, to Andrew, her older brother, aged 10 years. Although separate incidents were alleged, both were said to have taken place on the same date, 16 th August 2004, at the same place, their home, when a number of adults, including their mother, was present. 2. The appellant was a man with previous convictions for very serious sexual offences involving both boys and girls. In March 1993 he pleaded guilty to seven offences of sexual crime between 1975 and 1982. There were three victims, two boys and one girl, whose ages ranged form 9 to 12 years. The offences included rape, buggery and indecent assault. In May 2000 the appellant pleaded guilty to indecent assault of a girl of 9 years, and taking an indecent photograph of the same child in the previous January. None of the details of these offences require recital. 3. The convictions were admitted under section 101(d) of the Criminal Justice Act 2003 , as relevant to the defendant’s propensity to commit offences of the kind with which he was charged. In making his ruling Judge Barham rejected an argument based in R v Hanson (2005) 3 CAR 21 , then recently decided, that it would be unjust to admit the convictions because the prosecution case against the appellant was a very weak one. He rejected a further argument based on evidence of contamination between or among prosecution witnesses. Although Mr McNiff for the appellant, criticises the exercise of the judge’s discretion to admit evidence of the appellant’s convictions, it would be convenient at this stage to examine the remaining evidence called at trial. From the point of view of the prosecution this turned out to be more problematic than anticipated. 4. Monica and Andrew lived with their mother, and her then partner, and their two other siblings. At the time when the sexual assaults on them were said to have taken place, their mother and other adult family friends were present at their home. 5. Monica gave evidence in chief via pre-recorded video that she was touched by the appellant in the area of her vagina, both outside and inside her clothing. When she was cross-examined, she accepted that she often made up some things, and that she had indeed made up some things about the appellant. On the night of the alleged assault itself, she also said that the defendant had removed her from her bed and taken her downstairs and kissed her all over her body in the presence of other people, including her mother, her mother’s partner, and a family friend Kelvin Barker. No one else witnessed any such incident. She also said that the appellant had kissed her on the bottom of her leg while she was alone in the kitchen dancing, but, inconsistently with her complaint, that he had not touched her at any time when she was with Kelvin Barker. 6. Monica maintained her allegation of sexual assault by the appellant. However she added that after the appellant had left the house, she, together with her mother, Andrew and Kelvin Barker sat down and talked about what they were all going to say to the police. During this conversation, according to Monica, her mother told them that she too had been touched by the appellant. In her evidence Monica also said that she did not know why she said that the man had touched her everywhere, save that it was what her mother had told her to say, and although the word “touched” was used throughout her video recorded interview, it was not a word she herself usually understood or used. Again, it was what her mother told her to say. 7. Andrew also gave evidence in chief by pre-recorded video. Essentially he alleged that he was sitting on his bed when the appellant came into his room and touched him over his shorts on his penis. In cross-examination he agreed that he had made things up about the appellant. He claimed he could see ghosts and that he was a medium. He denied that the appellant had ever put his arm around him and cuddled him while they were in the bedroom, and asserted that there was no one in the room at any time except for him, the appellant, and his guardian angel. He confirmed that his mother had told him what to say, and that he had become confused about the time of events because he had forgotten what she had told him to say. When he told his mother that the appellant had touched him on his private parts, she replied “excellent”, and she was very kind to him. He said that his mother stated that she would do anything to get the appellant’s home. He denied that the appellant had said to him, “Don’t tell anyone. This is our little secret. I could get into a lot of trouble”. Andrew confirmed that, after the appellant left the house, there had been a discussion during which his mother had told him how she had been sexually abused, including the way in which she had been touched, and that Monica and Kelvin Barker had been present during the discussion. He believed that he was saying what his mother had told him to say. 8. His mother was called. She gave evidence that the appellant had arrived at her home at 9 o’clock in the evening on the day of the alleged assaults. He had been drinking, and went out to buy some more drink, taking Andrew with him. On their return to the house, it emerged that Andrew had hurt his knee, and he went to his bedroom, crying. She said that she noticed the appellant with Andrew in Andrew’s bedroom, with his arm around Andrew’s back and his hand on his knee. She asked Andrew if he was all right, and the appellant said that he would look after him. 9. In cross-examination she gave evidence that the appellant had showed her child pornography, but that she had not thought this important, and indeed had forgotten about it, so she did not see the need to tell anyone about it, or indeed to stop the appellant from visiting her or her family. Nevertheless she asserted that as a direct consequence of the material the appellant had shown her, she had decided that the appellant should never be left alone with any of her children. However she was unable to explain why, having made that decision, she then allowed the appellant to visit the home, take Andrew out, and indeed be left alone with any of her children, or with Andrew in his bedroom at the time when Andrew needed comforting. Even when she saw the appellant with his arm around Andrew’s back, she did not feel any need to go into the bedroom to discover what was going on. She denied that she told her son what to say, or that she had had any discussion with either child about what had happened to them, or indeed what had supposedly happened to her when she was younger. 10. Kelvin Barker spoke of going upstairs and overhearing the appellant saying to Andrew, “Don’t tell anyone. This is our little secret. I could get into a lot of trouble.” With that he went downstairs, and told Andrew’s mother. The appellant was asked to leave, and the police were called. 11. During his cross-examination he said that he could not see and had not seen into Andrew’s bedroom, and only heard what was said. He had seen the appellant clumsily touching Monica’s leg when he, Kelvin Barker, was carrying her. There had been some earlier harmless play with food, and the appellant had said that he could lick the cream off her. However, he had not put his hand up Monica’s skirt, or touched her private parts. Monica had not complained to her mother that the appellant had touched her private parts, but simply that he had touched her leg. He had confirmed that account of events to Monica’s mother at the time. He also said that Monica’s mother was the first person to allege that the appellant had touched Monica anywhere other than on the leg. 12. When interviewed the appellant denied the allegations against him. He said that he had met the family some two months prior to the alleged incident, visiting their home to fix a computer. The children’s mother had visited his home with a view to possibly renting it. He went to the children’s home on 16 August to fix the laptop, and after working on it, he went to the supermarket to buy some drink. Andrew went with him. They returned to the house, when all present had a drink, although nobody was drunk. He said that he could not recall the time when he was alone with the children, and he only went into two rooms that evening, the kitchen and the master bedroom. 13. At the close of the prosecution case, it was submitted that there was no case to answer on the basis of the well known “second limb” identified in R v Galbraith , and further, that the judge should direct the jury to acquit the appellant on the basis that the evidence was “contaminated” for the purposes of section 107 of the 2003 Act . The first submission was familiar enough, but when the judge was considering the second submission he was dealing with new legislation, without assistance from decisions of this court. 14. On the basis of the Galbraith submission, the judge concluded that the count involving Monica should be withdrawn from the jury, but that the case relating to Andrew should be allowed to proceed. The ruling relating to Monica proceeded on the basis that there was only one occasion of sexual assault, and only one occasion when that assault could have taken place. This was when Kelvin Barker was holding Monica and the incident described by him occurred. The judge noted that at the beginning of the prosecution case, the allegation was that the appellant had touched Monica on the vagina both outside and inside her clothing, but by the close, it was contending that either Monica was correct, or Kelvin Barker was correct, but they could not both be correct. Accordingly the jury should convict if satisfied about either version. However, the judge concluded, rightly in our judgment, that there were so many unsatisfactory features of the evidence relating to this account that it should be withdrawn from the jury. 15. That left count 2, of course, a separate count requiring separate attention. The judge’s ruling in relation to the submission that there was no case to answer proceeded on the basis that, ignoring the appellant’s previous convictions, there were two pieces of possible, independent, supporting evidence. These were Kelvin Barker’s account of having heard the appellant speak to Andrew about the “little secret”, and Andrew’s mother’s account of what she had seen the appellant doing in Andrew’s bedroom. This in the end, as the judge accepted, might indeed be a perfectly innocent action for which there was an innocent explanation. So what in fact was left was the defendant’s denial in interview of having been in Andrew’s bedroom at all, which if the mother was telling the truth, was a lie. The judge concluded that there was a case to answer. The jury could safely convict. 16. He then turned to the argument based on section 107 . The judge expressly reminded himself of the terms of section 107(1) and (5), and it is now convenient to set them out. Headed, “Stopping the case where evidence is contaminated”, section 107(1) provides: “If on a defendant’s trial before a judge and jury for an offence a) evidence of his bad character has been admitted under any of paragraphs (c)-(g) of section 101 (1), and b) the court is satisfied that any time after the close of the case for the prosecution that i) the evidence is contaminated, and ii) the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a re-trial, discharge the jury.” Section 107(5) provides: “For the purposes of the section a person’s evidence is contaminated where c) as a result of an agreement or understanding between the person and one or more others, or d) as a result of the person being aware of anything alleged by one or more others whose evidence may be, or has been, given in the proceedings, the evidence is false or misleading in any respect, or is different from what it would otherwise been. ” 17. The judge simply said that he was “not satisfied” of what he described as the “test” provided in section 107(1) , adding, “…. that a jury properly directed could safely convict, despite the submissions in relation to s 107 of the Criminal Justice Act 2003 ”. In his short ruling the judge did not discuss whether the evidence was uncontaminated, nor state expressly whether he was reaching his conclusion on the basis that such evidence of contamination lacked the appropriate levels of significance for the purposes of section 107 . Following the judge’s ruling the appellant did not call or give evidence. 18. Both conclusions reached by the judge in relation to count 2 are criticised by Mr McNiff. His first complaint is conventional and familiar. In our judgment, although the trial judge is not required to shut his mind to obvious deficiencies in the evidence called by the prosecution, in the final analysis, when reaching his decision he should bear firmly in mind that the decisions about the facts, in particular which witnesses are to be accepted and which rejected, are for the jury. He must not usurp their function. We can find no basis to justify interference with this aspect of the judge’s decision. 19. We must now come to section 107 issues. In enacting section 107 , Parliament, at least in part, adopted the proposal of the Law Commission (Evidence of bad character in criminal proceedings, Law Com. No 273, October 2001, Cm 5257) that the position of the defendant whose “bad character” had been put in evidence, should be safeguarded by the requirement that the judge should stop the trial if the evidence in support of the prosecution may have been contaminated. For the purposes of section 107 contamination may result from deliberate collusion, or the exercise of improper pressure, but it may equally arise innocently, or through inadvertence. Moreover, contamination issues extend to evidence of bad character in the broad sense, as well as to unequivocal evidence of bad character arising from unchallenged, and usually unchallengeable, evidence of previous convictions. 20. The direct concern is not the admissibility of bad character evidence (as to which, see R v H (1995) 2 AC 596 ), but rather the consequences of its admission. Strikingly, the unusual feature of section 107 is that after the admission of evidence, a duty is imposed on the judge to make what is in truth a finding of fact. Plainly if the case goes to the jury issues such as contamination and collusion will be left to them in the familiar way, with appropriate directions and warnings. But the decision at the end of the prosecution case, or indeed at any later stage in the trial, whether the evidence of a witness is false, or misleading, or different from what it would have been if it had not been contaminated, requires that the judge should form his own assessment, or judgment, of matters traditionally regarded as questions of fact for the exclusive decision of the jury. 21. We have reminded ourselves that in enacting this Part of the 2003 Act , “ Parliament’s purpose…is to assist in the evidenced based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice.” ( per Rose LJ in R v Hanson ) The effect of section 107 is to reduce the risk of a conviction based on over-reliance on evidence of previous misconduct and acknowledges the potential danger that, where the evidence is contaminated, the evidence of bad character may have a disproportionate impact on the evaluation of the case by the jury. In other words the dangers inherent in contamination may be obscured by the evidence of the defendant’s bad character. 22. The duty under s 107 does not arise unless the judge is satisfied that there has been important contamination of the evidence. If he is so satisfied, what then follows is not a matter of discretion. The consequences are prescribed by statute. Whether or not there would on the conventional approach be a case to answer, the trial should be stopped. The jury must either acquit the defendant in accordance with a judicial direction, or if the judge considers that the case ought to proceed to a re-trial, the jury will be discharged from returning a verdict and a retrial ordered. The order for re-trial in these circumstances would not normally be susceptible to a subsequent application based on an asserted abuse of process. Unless something fresh emerges, that would amount, in effect, to an appeal from the decision of the judge who, with all the relevant considerations in mind, had ordered a retrial. 23. In future, we suggest that when, in answer to a submission by the Crown at the start of the trial that the defendant’s previous bad character should be admitted before the jury, counsel for the defendant (as here) makes a responsible submission that there is material in the prosecution case itself to suggest that there was or may have been witness contamination, it would normally be sensible for the judge to postpone a decision until the suggested contaminated evidence has been examined at trial. If the decision to admit bad character evidence were postponed until the evidence of the complainants, and any other witnesses, were concluded, the judge, when deciding whether to admit the evidence of bad character, would have well in mind the precise details of the evidence actually given, with such weaknesses and problems as may have emerged. He would not then be acting on his judgment about anticipated evidence, but making a decision based on the evidence itself. 24. We must return to the present appeal. We immediately acknowledge the force of Mr Carter’s submission that the judge’s decision about the facts should normally be supported. Unless the judge has misdirected himself, or his decision is plainly wrong, we should not interfere with it. We have borne this well established principle in mind. 25. Mr McNiff submitted that the judge failed to appreciate the cogency of the evidence of contamination. It was not simply, as the judge’s ruling appears to suggest, that Mr McNiff was arguing that contamination was established by the evidence from both children of the discussion which took place after the defendant had left their home, and before the police arrived. No one would be likely to conclude from the creation of a safe protective zone for children in their own homes that contamination should be inferred. Mr McNiff’s submission went much further. He pointed out that the judge’s analysis of the evidence itself was very brief, and suggested that it would be difficult to avoid the conclusion that in reality his decision was influenced by his earlier conclusion that there was a case for the defence to answer. The question whether there was contamination was simply not sufficiently examined. 26. We must analyse these submissions in their factual context. The first complaint was made by Monica. She said that the appellant had touched her leg. That complaint was consistent with what Kelvin Barker reported, that the appellant had touched Monica’s leg. So he had seen the whole of the incident itself, and his account was entirely consistent with Monica’s immediate complaint. By the time the matter was being reported to the police, the incident described by Monica herself had developed into sexual assault in which the appellant had touched her vaginal area both over and within her knickers. The judge paid close attention to and was troubled by this evidence when deciding that the count involving Monica should be withdrawn from the jury. Perhaps, having the reached the conclusion that the relevant count should be withdrawn from the jury and an acquittal directed, he failed sufficiently to appreciate the significance of this complaint in the context of the contamination issue. 27. Kelvin Barker’s evidence confirmed that the first person to mention that Monica was touched in her vaginal area was her mother, something the mother flatly denied. Both complainants confirmed in their evidence that they had sat with their mother at home and that she told them what to say. Monica said that her mother had told her to say that the man had touched her everywhere, and Andrew said that he believed that he was saying what his mum had told him to say. Again, the mother denied this. However the use by Monica of a word she did not understand, “touched”, and Andrew’s claim that he had been given information about sexual abuse that his mother claimed to have suffered, powerfully suggested that somewhere in the process, these children acquired more “information” than they possessed before the family discussion, while they were in the company of their mother before the arrival of the police. The problem was not answered, as the judge appeared to suggested, because, notwithstanding his own evidence about what his mother had told him to say, Andrew nevertheless maintained that the allegation of sexual assault was true. His assertion that it was true did not prove its truth, and more important, did not preclude contamination. 28. In our judgment there was plain and unequivocal evidence that Monica’s evidence was different from what it would otherwise have been as a result of the conversations with her mother. The inference that Andrew’s evidence was different from what it would otherwise have been if he had not been present during the same conversation as his sister, in our judgment, was virtually inescapable. The excluding provisions in section 107 were established. The jury should have been discharged. In the light of this conclusion, and our earlier observations, we need not further address the question whether the decision to admit the evidence was flawed. 29. In the result, we have concluded that this conviction is unsafe and must be quashed. 30. The appeal will be allowed. The Crown does not seek re-trial and one would not be appropriate.

```yaml citation: '[2006] EWCA Crim 1079' date: '2006-05-11' judges: - MR JUSTICE MACKAY - 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: 2009/04876/C5 Neutral Citation Number: [2009] EWCA Crim 2972 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM the Crown Court sitting at Bristol HHJ Lambert 2007/0296 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/09/2009 Before : LORD JUSTICE HOOPER MR JUSTICE UNDERHILL and MR JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : JS Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Ian Bridge for the Appellant James Dennison for the Crown Hearing dates : 25/09/2009 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER : 1. JS appeals against a decision of HHJ Lambert made on 14 September 2009 to vary a restraint order. 2. We announced at the conclusion of the hearing that the appeal succeeded. We were asked to hand down a judgment quickly so that it would be available by Wednesday morning and we agreed to do so. We now give our reasons. 3. On 16 May 2007 a restraint order prohibiting the disposal of assets was made against the appellant. Similar orders were made against a company LS and a co-defendant JR. Paragraph 6 of the restraint order made against the appellant lifted the corporate veil by ordering that the assets of LS were to be treated as the assets of the appellant. 4. JS and JR are awaiting trial for what is commonly known as a carousel fraud. We were told that the conspiracy covers a period ending in 2005, but that the prosecutor had given the usual warning that if a defendant sought to show that trading before or after the indicted period was honest, then the prosecution reserved the right to refer to trading outside the indicted period. 5. JR resigned as a director of LS in 2008 but he retains a (frozen) half share in the assets of LS. 6. The appeal concerns paragraph 9 of the order and, in particular, paragraph 9.2. The paragraph reads (we set it out exactly as it appears in the material before us): 9. Subject to any further order of the court any information given in compliance with this order shall only be used:- i. for the purpose of these proceedings; ii. if the Defendant is convicted, for the purposes of any confiscation hearing that may take place; and iii. if a confiscation order is made, for the purposes of enforcing that order, including any receivership proceedings. 9.2. there shall be no disclosure of any material disclosed in compliance with this order to any co-defendant in the criminal proceedings. 9.3. However, nothing in this paragraph shall make inadmissible any disclosure made by the Defendant in any proceedings for perjury or contempt of court relating to that disclosure. 7. This paragraph is unhappily worded. There is no “.1” and 9.2 starts after a full stop but in lower case. The origins of paragraph 9 can be found in Re C , a decision of Collins J in the High Court of Justice, Queen’s Bench Division on 4 September 2000 (DTA/7/00). In that the judge approved a draft prepared by both counsel. In the approved draft what is 9.2 in our case was a separate un- numbered paragraph. Collins J. envisaged that there could be circumstances in which the prosecution obtained a variation of the order to enable disclosure to a co-defendant of material exonerating him but not in such a way that the material could be used against the provider of the information to incriminate him. 8. The purpose of a paragraph like paragraph 9.2 is to provide the defendant with an assurance that information given in response to an order for disclosure cannot and will not be used as evidence to incriminate him. Absent such an assurance the defendant would have the right to refuse to provide the information if it would tend to incriminate him. See In Re O [1991] 2 QB 520, approved by the House of Lords in A.T. and T.Istel Ltd v. Tully and another [1993] AC. Collins J in In re C explains the consequences of the coming into force of the Human Rights Act 1998 in the light of Saunders v. UK (1996) 23 E.H.R.R. 313 (ECHR). 9. The variation order which the respondent sought and obtained before HHJ Lambert would enable the respondent to disclose to the co-defendant JR material which, under paragraph 9.2, could not be disclosed to JR. The material part of the ordered variation inserts a new paragraph 9.4: The Crown be permitted to serve upon [J R] and his legal representatives, not before 14.00 on the 17 th September 2009, the following material for the purposes of allowing them to (1) determine whether or not to make any representations in respect of the Receivership application currently pending before the Crown Court sitting at Bristol and (2) make such representations in those proceedings as they deem appropriate:- 1. The witness statements of Shahzary Mustafa dated the 23 rd July 2009 and Darren Wilkinson dated the 16 th July 2009. 2. The exhibits referred to within, and attached to, those statements. b. The documents referred to in paragraph 9.4a above are to be used solely for the purposes set out in that paragraph and for no other purpose; they are to be disclosed to no other person or used in any other manner without the permission of H.H.J Lambert or the Senior Circuit Judge of the Crown Court sitting at Bristol 10. The respondent sought the variation order because it is seeking a receivership order and because of the view it takes about the effect of section 49(8) of the Proceeds of Crime Act 2002 . The effect of this section is that a court shall not confer on a receiver the power to manage or otherwise deal with restrained realisable property or the power to realise property to meet the receiver’s remuneration and expenses “unless it gives persons holding interests in the property a reasonable opportunity to make representations”. JR has by letter asked to see the material upon which the respondent relies to obtain the receivership order. The respondent would be in breach of paragraph 9.2 if it complied with this request and thus seeks the variation. Counsel for JR did not make any representations to HHJ Lambert. He was ready to do so but the judge (in his absence) varied the order in the way sought thus making it unnecessary to hear from counsel for JR. 11. The appellant was required by paragraph 8 of his original order to disclose his assets. He did so and the respondent does not intend to serve any material so disclosed. 12. In 2007 a variation of the appellant’s restraint order was made which permitted LS to continue trading. The permission was subject to conditions requiring JS to supply monthly to the respondent certain stipulated trading records. JS complied and continues to comply with this obligation subject to some possible exceptions. 13. The respondent rightly accepts that paragraph 9.2 prevents the respondent from revealing the trading records to JR, unless varied. 14. In 2009, after JR had ceased being a director and whilst JS was continuing to run the business, the respondent formed the view that JS, using LS, was (or might well be) carrying out a carousel fraud. That view was reached following a detailed examination of the trading records disclosed in accordance with the obligations imposed upon JS and a comparison of that material with material obtained by the respondent from other sources (and not subject therefore to paragraph 9.2). 15. Although the respondent might well have sought a variation of the order to prevent JS and LS trading, it has not taken that course. It decided, instead, to seek a receivership order. It is said that a receiver would be able to investigate in more detail than the financial investigators “the trading activity of the companies” to “permit and facilitate proper and legitimate trades and to prevent those that cannot be so categorised” (see paragraph 143 of the statement of Darren Wilkinson). We note in passing that the judge on the application for a receivership order will have to consider whether this is a proper justification for having a receiver appointed, having regard, in particular, to section 69 of the Act. By virtue of sub-section (2) the power to make restraint or receivership orders: (a) must be exercised with a view to the value for the time being of realisable property being made available (by the property's realisation) for satisfying any confiscation order that has been or may be made against the defendant; (b) must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property; 16. The judge in his ruling said that he did not apprehend any breach of the privilege against self-incrimination “or not one that is such that the court cannot countenance in any event”. We do not agree. The co-defendant might wish to show that it was the appellant and not him who committed the fraud, as evidenced by the fact that the fraud continued after he had resigned. 17. The judge ordered the co-defendant not to disclose the documents to any other person or use them other than for the receivership application without the permission of H.H.J Lambert or the Senior Circuit Judge of the Crown Court sitting at Bristol. We do not believe that this provides the appellant with the safeguards which paragraph 9 gave him. 18. The judge was in our view wrong to conclude that the order which forbade the respondent from disclosing to the co-defendant material supplied in pursuance of the order could so easily be set aside retrospectively. Paragraph 9 is a very important provision designed to preserve the appellant’s privilege against self incrimination whilst giving the state the pre-trial power to identify and preserve the defendant’s realisable property pending a possible conviction. It is designed to ensure that a defendant tells the truth about his assets and expenditure in the knowledge that what he discloses will not be used (particularly) in the pending criminal proceedings by either the prosecutor or co-defendant. 19. We do not need to decide whether an order of the kind made in this case could ever properly be made when material has been previously disclosed with the protection afforded by paragraph 9(2) or similar provision. But in our view there was no justification for making the order in this case and it is difficult to imagine a case when such an order would be justified upon an application to appoint a receiver. 20. The material before the judge did not begin to justify the removal from the appellant of the protection accorded to him by paragraph 9.2 of the Order. JR’s solicitors had not in correspondence put forward any specific reason why they should see the materials. They proceeded on the basis - no doubt reasonable enough if there were no other interests involved - that if they were to be heard on the application they ought to see the evidence adduced in support of it. The Crown's case appears to have proceeded on the basis, and the judge appears to have accepted, that it was self-evident that JR needed to have access to the disclosed materials, or information derived from them, in order to exercise his right under s. 49 (8). We cannot agree. The fact that the evidence in question referred to material whose disclosure was prima facie prohibited by paragraph 9.2 makes a fundamental difference. It was essential that an analysis be done of how access to the materials might assist JR in relation to any relevant submissions that he might realistically wish to make and which it was in the interests of justice that he should have the opportunity to make. If they could not realistically assist him in making such representations there could be no possible justification for depriving the appellant of the protection of paragraph 9.2. JR had no involvement with any of the trading during the relevant period, and it was in the highest degree unlikely that he would have anything to contribute to the issue of whether there was reason to believe that fraudulent trading was continuing: it was fair to proceed on the basis that the Appellant would say all that could properly be said to rebut the Crown's case on that point. Mr Dennison submitted that JR might well wish to make representations about the prejudice to the value of his interest in the business which would be caused by the cost of the receivership; but that is something which he could do in any event. No doubt for that purpose, and generally, he needs to be told the nature of the Crown's case in so far as it is supported by material which can be supplied without infringing paragraph 9.2; but it was not demonstrated either to the judge or to us that he needed the disclosed materials for the purpose of any other proper submission which he might reasonably wish to make. We accept that both the judge and this court did not have the advantage of submissions from JR’s counsel. We considered adjourning the appeal to allow for such representations but it would not have been feasible in the time available. 21. We allow the appeal and quash the variation.

```yaml citation: '[2009] EWCA Crim 2972' date: '2009-09-29' judges: - LORD JUSTICE HOOPER - MR JUSTICE IRWIN ```

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Case No: 201003424 B5 Neutral Citation Number: [2014] EWCA Crim 620 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT STAFFORD His Honour Judge Thomas S20070225 Royal Courts of Justice Strand, London, WC2A 2LL Date: 04/04/2014 Before : LORD JUSTICE McCOMBE MR JUSTICE COULSON and THE RECORDER OF REDBRIDGE (His Honour Judge Radford) (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : REBECCA ELIZABETH HALLIDAY Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr I Krolick (instructed by Irwin Mitchell (Sheffield) Llp ) for the Appellant Mr J Hall (instructed by Crown Prosecution Service ) for the Respondent Hearing dates: 28th and 29th March 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice McCombe: 1. At the conclusion of the hearing of this appeal on 28 March 2014 we informed the parties that the appeal would be allowed for reasons to be given in a judgment that would be handed down. We now give that judgment. 2. On 6 August 2007 in the South East Staffordshire Magistrates Court the appellant pleaded guilty to five charges of fraud contrary to s.35 of the Tax Credits Act 2002 and was committed to the Crown Court for sentence. On 20 December 2007 in the Crown Court at Stafford she was sentenced by HHJ Tonking to 8 months imprisonment, suspended for two years, in respect of two of the charges so committed. No separate penalty was imposed in respect of the other charges. 3. On 7 January 2009 in the same Crown Court, before Mr Recorder Thomas (as we understand he then was), a confiscation order was made against the appellant in the sum of £53,749.41 (later amended to £53,703.41) to be paid within 6 months with a term of 18 months imprisonment, to be served consecutively to the other sentence, in default of payment. The sum was ordered to be paid within 6 months. We are told that the required sum under that order has now been paid. It was accepted that £14,610 had been obtained by the specific offences committed. It is contended for the appellant that she was, therefore, wrongly ordered to pay the balance of £39,093.41. She now appeals against the confiscation order by leave of the Full Court granted on 6 April 2011. 4. It is not necessary to say anything about the facts underlying the tax credit offences. What is in issue before us is the confiscation order alone. 5. That order assessed the value of the benefit, obtained by the appellant from criminal conduct, at £473,269, with the available amount to be realised (under the order as amended) being £53,703.41. 6. At the confiscation hearing the Crown was contending that the total benefit accruing to the appellant from criminal conduct was £1,147,807.90. The appellant by contrast contended that the benefit was limited to the sums arising from the specific tax credit offences alone, then assessed at £13,189.66 (or by the Crown at £14,650). 7. As the learned Recorder observed the principal issue before the Crown Court was as to the effect on the benefit obtained by the appellant in the acquisition (with the assistance of a mortgage loan) on 11 June 2004 by herself and her husband/partner, Mr Ian Coppin, of a property known as “The Sanctuary” at Newchurch, Hoar Cross, near Burton-on-Trent in Staffordshire, and its subsequent re-mortgage in 2006. It is a property in which they still reside. The property was purchased for £580,000, with a capital sum of about £160,000 and an interest-only mortgage advance of £420,000 from the Nationwide Building Society. In June 2006, the Nationwide mortgage was redeemed by a further mortgage advance of about the same sum from the Halifax Building Society. At all times the lenders were fully secured and the instalments were paid as and when required. The treatment of that acquisition and of the mortgage advances was the chief battle ground at the hearing before Mr Recorder Thomas. 8. The Recorder set out (uncontroversially) the law as it was taken to apply before him. He observed, of course correctly, that the starting point was section 6 of the Proceeds of Crime Act 2002. By subsection (4) of that section, the court had to determine whether the appellant had a “criminal lifestyle” and, if so, whether she had benefited from her “general criminal conduct”. There was no argument before the Recorder on this point. It was accepted at the hearing that the appellant had a “criminal lifestyle” by virtue of section 75 of the Act, because, by application of subsections (2)(b), (3)(a) and (4), she had been convicted in the proceedings of three or more offences, from which she had benefited, and the benefit obtained had exceeded £5,000. As the judge said, there had been no particular argument about that aspect of the matter before him. (At one stage of these appeal proceedings it was contended for the appellant that the judge had wrongly applied s.75(4) to the facts of this case. However, that point was abandoned before a constitution of this court, presided over by me, at a hearing on 31 October 2013, and that is confirmed by the appellant’s consolidated grounds of appeal dated 27 December 2013.) 9. Next, the Crown Court had to move to section 10 of the Act, applying certain assumptions to cases in which a criminal lifestyle is established, for the purposes of deciding whether the appellant had benefited from her general criminal conduct and in deciding what that benefit was. In reliance upon those assumptions, the Crown contended that, in addition to the fraudulently obtained tax credits, the appellant had benefited by an increase in the value of the property previously owned by herself and Mr Coppin, before acquiring “The Sanctuary” and by obtaining the two mortgage advances from the Nationwide and the Halifax. 10. For reasons that it is not necessary to explore further, the judge rejected as part of the alleged benefit the increase in value of the former home. The crucial remaining matter before the judge, and the only live matter before us, was/is the proper treatment of the two mortgage advances. 11. The prosecutor’s statement, made under section 16 of the Act and dated 8 August 2008, with its annex of documents of some 132 pages, set out the Crown’s case that, in respect of each of the mortgages, the appellant had fraudulently misstated her income. 12. On the copy application form relating to the Nationwide loan, a figure which might have been taken as the appellant’s income was stated, somewhat illegibly, as either “35,000” or “85,000”, without any “£” sign. (In the prosecutor’s statement that figure was taken to be referring to an income of £35,000: see paragraph 11.3.) We hesitate in describing the figure as actually being an income figure as it appears in a box on the form entitled “Year”. . On the appeal, the figure has largely been taken as “85,000”. The application form had been signed as correct by both applicants. 13. In respect of the Halifax loan, the Crown produced computer screen shots from the bank stating the appellant’s income at £45,000, although (in contrast to the Nationwide loan) no signed application form was produced which expressly referred to this or any other figure for the appellant’s income . There was merely a document, signed by both applicants, stating that information provided had been correct. There was no dispute but that the statements of income for the appellant in the screen shots were inaccurate. 14. As to the Nationwide form and the Halifax documents, the learned judge said this in his judgment, “The issue therefore is one of has she benefited from her general criminal conduct? In respect of that matter, there is an element of disagreement. On the one hand, the prosecution say, she has benefited from her general criminal conduct, but the defence say, that she has not benefited from that because although she has made misrepresentations in respect of her mortgage and re-mortgage application, those do not in effect amount to criminal conduct, and therefore no benefit could flow from that from the general criminal conduct. It is of course conceded that that does not apply to the tax credits. It only, it is argued, applies to any suggestion of benefit flowing from the two property transactions, the mortgage and the re-mortgage. It is also conceded that when that matter is being considered, that is criminal diffuse, the Court is not confined simply to considering whether there had been convictions for that purpose. And it is for the court, it seems to me, to view conduct in all the circumstances, to see whether benefit – she benefited from general criminal conduct, and not, as I said, confined to considering mere convictions. The prosecution case is of course that she did. They rely on the first mortgage application in 2004, which I’ve detailed, and they rely on the re-mortgage in 2006, and consequently on that for the transfer of the property. So that comprises the three elements of benefit that I’ve mentioned before excluding, of course, the tax credits. The defence say that this is not so because yes, they concede that misrepresentations were made in both forms, and misrepresentations as to the level of income. But they say there is no evidence that those misrepresentations were in fact responsible or played a part in the granting of the mortgage or the re-mortgage. And further, they say, that simply because one is dishonest, does not mean one is criminal.” 15. Thus, for the moment working upon the transcript of the judge’s judgment alone, it was accepted in the Crown Court that misrepresentations as to income had been made in both mortgage applications which were assumed to be dishonest. As the judgment records, however, the argument advanced for the appellant was that, while there may have been dishonesty, there had not been any “criminality”: see p.7A -F. Mr Green of Counsel, then appearing for the appellant is recorded as arguing that a number of (what he called) “badges” of criminal conduct were absent: there was no victim alleged, no loss and no complaint from anyone whatsoever arising out of either of the mortgage advances. The judge rejected that submission, relying upon paragraph 11 of this court’s judgment in Ward [2008] EWCA Crim 2955 , and found that the benefits were from the general criminal conduct of the appellant. 16. The judge went on to consider whether the two advances should both be considered cumulatively to be “benefit” for the purposes of the Act, applying the assumptions required to be made under s.10. In particular, he referred to section 10(2) and (6). 17. Section 10(2) provides this: “(2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him- (a) as a result of his general criminal conduct, and (b) at the earliest time he appears to have held it.” Section 10(6) says: “(6) But the court must not make a required assumption in relation to particular property or expenditure if- (a) the assumption is shown to be incorrect, or (b) there would be a serious risk of injustice if the assumption were made.” The judge noted that “double counting” would be impermissible in calculating the amount of benefit under these provisions. He referred to paragraphs 13 and 14 of the judgment of this court in Jones [2006] EWCA Crim 2061 . The judge’s conclusion appears at pp. 10D – 11E of his judgment in these terms: “One has to, as I’ve indicated, look at each benefit in turn, and in this particular case the defence have drawn attention to two particular aspects of the benefit claimed. The first is as to the re-mortgage. On the 11 th June 2004, the first mortgage was taken out, with the Nationwide Building Society in the sum of £420,700, with a 2 year discount deal. In 2006, the property was re-mortgaged. It was re-mortgaged in roughly the same terms. I think it was around £421,000. That was to the Halifax Building Society, In effect, the first mortgage was repaid. The reason for the re-mortgage was probably to take advantage of a further 2-year discount deal which had then elapsed. Therefore the two sums, that is the two benefits identified, did not run concurrently with each other. The second or the re-mortgage effectively extinguished the first. Now, whilst that is not the same as double counting, it is my judgment that to add the two together for the purposes of assessing benefit, even though that is properly done under the assumption, would be an unfair application. It would, in my judgment, not ensure that there was sensible calculation of benefit. It would not moderate the ultimate calculation of that sum. And although the prosecution rightly say, well, these were two separate transactions, they were two separate parties involved, the Nationwide and the Halifax, and were separated from time, and so they legitimately could be seen as two separate benefits which they can under the assumptions. My own view is that this adding together really clouds the issue and extends the matter to an unrealistic extent in this case. And for that reason, I take the view that for these purposes, the first mortgage is subsumed by the second mortgage, and that the proper benefit level is that of the second, that is the re-mortgage, in this case. And that there will be a serious risk of injustice if there were double counting of both original mortgage and the re-mortgage in this case.” Thus, in his final calculation of benefit, the judge excluded the Nationwide loan, but included the Halifax loan. 18. In the result, including the amount of the tax credits, the judge arrived at the final benefit figure of £473,269. Realisable assets were found to be the appellant’s half share of the equity of The Sanctuary (£21,039.13), a French property valued at £25,714.28, a motor vehicle at £6,800 and a bank account balance of £150. This produced the total figure ordered to be paid of £53,749.41, later reduced as we have said to £53,703.41. 19. The initial grounds of appeal (of the appellant’s own composition), upon which this court gave leave on 6 April 2011, raised three points: first, that there was fresh evidence revealing a version of the Nationwide mortgage application form signed by the appellant, with a blank in the space in which the figure of “85,000” had appeared in the copy before the judge and taken to represent the appellant’s income, as compared to the form adduced by the Crown below with an income figure inserted; secondly, there was an alleged mistaken view taken by former counsel (Mr Green) of the meaning of the answers given by the appellant in interview with Revenue investigators; and thirdly, that the appellant was not aware until the date of the trial of the basis of the Revenue’s claim of fraud against her. Further, as part of the third ground, the appellant contended that she had not seen the Nationwide application form with a supposed figure for her income inserted, until presented with it on the day of the hearing. It is said in the grounds that, “The [appellant] was entirely bewildered by this fresh evidence, which regrettably was not challenged by her defense [sic] counsel either immediately or indeed subsequently”. These grounds have been supported by the evidence of six witnesses who did not give evidence on this point below. 20. Mr Krolick for the appellant applied to add four further grounds of appeal. They are these: “5) As a matter of fact, in the light of the fresh evidence, whatever assumptions were relied on by the judge to find that the re-mortgage was obtained by general criminal conduct have been shown to be incorrect. 6) The re-mortgage transaction did not fall within any of the assumptions provided for in section 10 POCA 2002, and the judge was wrong in law in treating the Appellant as having obtained the re-mortgage advance or any part thereof; 7) The judge erred in law in treating the Appellant as having obtained the entirety of the mortgage advance, and in increasing the value of the advance, when all repayments of interest and capital had been made in accordance with the mortgage deed; 8) The order was disproportionate.” Mr Hall for the Crown realistically acknowledged that these were simply points of law and he did not oppose the application. Accordingly, we gave leave for the additional grounds to be argued. For reasons that will appear, however, we did not find it necessary to decide the issues arising in grounds (6) to (8). 21. When the case came before the court on 31 October 2013, the court was disinclined to resolve hypothetical points of law advanced in the grounds before the final factual amalgam on the appeal had been resolved by the admission, or otherwise, of the fresh evidence sought to be adduced by the appellant. We, therefore, directed a timetable for the hearing of the appeal which we directed should begin with the hearing/reading of the appellant’s proposed new evidence de bene esse , to be followed by submissions as to the admission of such evidence and of the application to rely upon the additional grounds of appeal. Then would follow submissions on all grounds upon which leave had been granted. 22. To that end, we read in advance the evidence of two executives of the respective lending institutions (Mrs. Tammy Jones of Nationwide and Mr John Ellson of Halifax) and of Mr David Goldstein, the appellant’s solicitor (as to the process of collection of the fresh material), none of whom the Respondent wished to cross-examine. We then heard the oral evidence of the appellant, Mr Coppin and Mr Bernardo Iandico, the latter being the intermediary through whom the appellant and Mr Coppin applied for and obtained the Nationwide advance. Finally, we heard evidence from Mr Green (trial counsel to whom we have referred) who was tendered by the Crown for cross-examination on a statement made by him 21 November 2013 which in turn referred to an earlier note provided by him, at the request of the Registrar, dated 24 August 2010. We had pre-read the witness statements of these witnesses. 23. At the conclusion of that process, we heard submissions from counsel on the admission of the new evidence and on the application to rely upon additional grounds of appeal. 24. The tenor of the appellant’s evidence appears in her witness statement of 23 August 2011 in the following terms: “In relation to the obtaining of our mortgage with the Nationwide in 2004, Ian Coppin and myself were told by Bernardino Iandico, a mortgage broker, that, with our deposit (which was in excess of 25% of the value of the property The Sanctuary) and a good credit rating, this was sufficient to obtain a fast-track mortgage from the Nationwide. Mr Iandico was recommended to us by a friend. We went to meet him regarding the mortgage. On our second meeting with Mr Iandico, we understood that Nationwide had approved our mortgage with the option of an extra £10,000 on the mortgage amount. We declined this. We signed the mortgage application on that second visit. Mr Iandico did not ask me to provide any information on my earnings. My earnings would not have been adequate to get this mortgage, but my understanding was that my earnings would not be necessary for the mortgage to be granted, due to the size of the deposit we had. I was, however, asked to provide the name of the accountant, which I did. That accountant had done my accounts in the past and, as far as I understood, a name was necessary for the application. I did not have any other involvement with the information which was put onto the Nationwide application form, apart from signing the form. My partner Ian Coppin’s details were filled in on the form by Mr Iandico from information given to him by Ian. When Ian and I went to obtain a re-mortgage from the Halifax in 2006, my understanding was that the criteria for obtaining the mortgage would be the same. We had never missed a payment on the Nationwide mortgage and had maintained a good credit rating. I cannot recall being asked for any specific documentation relating to myself in relation to this application. I have been shown a copy of the document exhibited as JVE/1 at Appendix G. I have not previously seen this printout. On page 11 of 35, there is a figure of £45,000 for income. I never provided this figure to anyone in relation to any aspect of this mortgage application – this is not and never had been my level of earnings. I have no idea where this figure has come from. On page 18 of 35, with regard to the lending calculation, the same figure of £45,000 appears as income and available income. Again, I did not supply this figure for any aspect of the mortgage application. This figure is incorrect, and I have no knowledge as to how this happened. These figures were not inserted by me on the Halifax application document.” In cross-examination she denied that she had accepted in conference with counsel that she had been fraudulent with regard to either mortgage. She said she had agreed the figures were wrong, but could not explain them. She said no figures for her income had been included by her and that she thought that such figures were immaterial in the applications. 25. Mr Iandico gave evidence. In his witness statement, he said this: “In 2004, I was contacted by Rebecca Halliday and her partner, Ian Coppin who wanted to obtain a mortgage for £420K in order to purchase a property, The Sanctuary, New Church, Burton-on-Trent, DE14 1JE. As a result, I sent an Agreement in Principle (AIP) to the Nationwide Building Society which detailed my client’s basic information, such as address history and income details. The purpose of this document was to give the Nationwide enough information for them to undertake a credit score. The AIP detailed that a 25% deposit was to be put down. The Nationwide responded to the AIP by offering my clients a fast-track mortgage for the amount requested. Thereafter, I completed the full mortgage application which was signed by both clients. Mr Coppin provided me with a P60, bank statements for the period 01/09/03 – 11/03/04 and a letter from his accountant. No income details or supporting documentation was provided in relation to Ms Halliday. I have been shown a copy of Page 2 of the Application Form which was completed by myself in both my client’s presence. In relation to Mr Coppin’s income details he advised that he was going to become a self-employed ground worker in the relevant tax year that his application relates to. He advised he would receive £35K from his employer and he estimated a further £50K from being his self employed income which totalled £85K. I did not complete any figures containing Ms Halliday’s income. I did provide details of her occupation and her accountants. I did not put any information regarding her income on the form. I was unaware of any figure being inserted until I was shown a second copy of Page 2 of the Application Form which contained the figure “85000” in the year box.” In his oral evidence, he told the court that the copy application form for the Nationwide loan, signed by the appellant but without the “85,000” figure, as appearing in the bundles before us, was a true copy of the form which he had despatched to Nationwide and which was retrieved from his files. It was put to him squarely by Mr Hall that he had colluded with the appellant and/or Mr Coppin in providing fraudulently false figures to the Nationwide. Mr Iandico strenuously denied that. He told us that the appellant’s income was, so far as he was concerned not relevant to the application, which depended in reality upon Mr Coppin’s income actual and projected as set out in Mr Iandico’s witness statement. He was not asked whether he had had any further discussions with anyone at Nationwide about figures or anything else after the form had been submitted by him. 26. The written evidence of Mrs Jones of Nationwide told us that, while the income figures provided by an applicant were significant in assessing affordability of potential payment obligations under any mortgage, in the circumstances of this case (where a large down payment was being made) proof of the income figures would not have been required. She said nothing about the circumstances in which figures for the appellant’s income were provided or about the extent to which the appellant’s income (as opposed to that of Mr Coppin) was material to the application. 27. Mr Ellson of Halifax gave evidence in a witness statement. He also indicated that income figures were relevant to the bank’s assessment of the affordability of the mortgage advance for the applicants, but the loan to value ratio had a bearing on whether income verification would be sought. He produced further, more recent, copy screen shots of computer entries as to the income figures and other matters held by Halifax for the appellant and Mr Coppin. He produced an application form signed by both, but he gave no direct evidence as to the provenance of the figures supplied and whether or not the appellant had personally provided any of them. Nor was there any evidence that any form had been signed by the appellant verifying these particular figures. 28. We also heard evidence, as we have said, from Mr Green. We did not hear from his instructing solicitor. He told us that he had been involved on the appellant’s behalf in the defence of the confiscation proceedings for about a year before the final hearing. He attended court on two occasions (in addition to the final hearing in January 2009) when the proceedings had been adjourned and he had met the appellant on each occasion. He had provided a skeleton argument which had caused the Crown to revise its initial figures. He described the appellant as a person who did not give clear instructions, who was “highly strung” and who did not find it easy to focus on documents. He was only able to enter into detail about one occasion on which he had taken instructions from the appellant on the facts of the case. This was on the occasion of the final hearing. He said he believed that the prosecutor’s statement and the annexed documents would have been provided to the appellant at some stage before the hearing but he could not say when that would have been. He told us on a number of occasions that the appellant could not explain to him how the figures in the Nationwide application form had come to be completed. She had, however, accepted that the figures were not accurate. She had agreed, he said, that either false figures had been put in or the form had been submitted with income figures for her in blank, in circumstances in which she did not care what might be filled in by someone else. Mr Green said that he took her answers to mean that she was accepting that the form had been submitted fraudulently or at least that was what the judge would infer. He had also put to her answers given by her to Inland Revenue investigators in interview in which she had accepted that the figures in the Nationwide form were false. Mr Green said he advised the appellant that she could not explain how the income figures had been provided to the Nationwide and would have difficulty in rebutting the “assumptions” called for by the Act. She was, therefore, content not to give evidence on these points and did not do so. It appears, however, that she did give evidence and was cross-examined on the question of her available assets alone. Quite how this occurred was not made clear to us, as neither Mr Hall nor Mr Krolick appeared below on the occasion in question. 29. When asked about the appellant’s instructions concerning the Halifax loan, Mr Green said that this aspect of the case was not covered in any detail. Once the Nationwide loan was likely to be held to be fraudulent, the same was likely to be the case in respect of the second loan; the appellant again could not explain how the loan had been obtained. For him, the most important “plank”, however, had been the “85,000” figure in the Nationwide document and the Halifax matter did not play a large part in discussions with his client or before the court. 30. At the conclusion of the evidence, we heard submissions from counsel addressed to the criteria governing the admission of fresh evidence in this court, as they appear in section 23 of the Criminal Appeal Act 1968. 31. Mr Krolick submitted that the new evidence was capable of belief. In particular, he asked us to note the evidence of Mr Iandico, which put the rest of the appellant’s case in perspective and supported the account which she gave as to her own role in the matter. He was an independent witness who had produced from his files the copy of the form which he had submitted to the Nationwide. It did not contain the “85,000” figure in the section dealing with the appellant, which had been central to the Crown’s case. His evidence supported the appellant’s case that her own figures were not material to the loan application. Mr Krolick invited us to hold that there was reasonable explanation for the failure to adduce the evidence in the Crown Court; it was supplied by Mr Green’s evidence, namely that no one had invited the appellant properly to focus upon the Nationwide documents prior to the day of the hearing and she had then simply been unable to explain how the figures had been arrived at. It was only after the hearing that the full significance had been appreciated and steps had been taken to obtain the additional material. 32. Mr Hall resisted the application to adduce the evidence and invited us to concentrate on section 23(2)(b) of the 1968 Act. He argued that we should find that the evidence would not afford any ground for allowing the appeal. His submission was that this evidence would not have enabled the appellant to rebut the assumptions compelled to be made against her under section 10 of the 2002 Act. It was argued that applying the test in section 10(6), the appellant would be unable to show that the relevant assumptions were incorrect because she was unable to explain how the figures came to be as they were in the records of both lenders. 33. Having considered these submissions, we decided that the evidence should be admitted and that we would explain our reasons for this conclusion in our judgment, which we now do. 34. We accepted Mr Krolick’s submission that the evidence of the appellant, as to the absence of having any hand in supplying income figures for her to the lenders, was capable of belief, particularly in the light of the evidence of Mr Iandico. If indeed she had no hand in this then it would show that any transfer of property to her that may have occurred as a result of the mortgage advances would not have been as the result of her “general criminal conduct”, as that phrase is defined in section 76(2) of the 2002 Act. Thus, it might afford a ground for allowing the appeal. Clearly the evidence would have been admissible in the Crown Court. 35. Further, we found that there was a reasonable explanation for it not having been adduced below, in that no proper attempt seems to have been made by those advising the appellant to focus on the allegedly fraudulent conduct said to have been committed by her in the prosecutor’s statement, until the day of the final hearing. We found it surprising that there appeared to have been no detailed instructions taken upon the contents of the prosecutor’s statement which had been served in August 2008, until the eleventh hour. Mr Green said he recalled having a very brief proof of evidence. It seems that only when Mr Green began to probe the contents of the Nationwide form at the time of the final hearing that any real instructions were taken. Obviously that should have been done long before the day of the hearing. That explained to us satisfactorily why the fresh evidence, and in particular that of Mr Iandico which lies at its foundation, was not adduced at the confiscation hearing. 36. With that evidence formally admitted, we heard submissions addressed to the grounds of appeal. 37. The original grounds and ground (5) are based on the facts of the case, in the light of the new evidence which we have now admitted on the appeal. The remaining grounds raise matters of law. Having heard the evidence, and having heard both counsel address us on the facts of the case, we decided that the appeal should be allowed on the basis of grounds of appeal (1) to (3) and (5) (the factual grounds). 38. We turn, therefore, to the facts first. The question for us is whether, on all the evidence now before us, the appellant has shown on the balance of probability that the assumption that any property transferred to her, at the time of the second mortgage transaction, was obtained by her as a result of her general criminal conduct, is incorrect. Both Counsel accepted that the decision was one for us to take, on the evidence before us, and it was not a matter of deciding how the new material might have affected the judge’s decision. The additional question arises at this stage (under section 10(6)(b) of the Act) whether there would be a serious risk of injustice if any statutory assumption were made. 39. We have set out above the primary features of the new evidence before us. We should also note that we have had the benefit of hearing substantially more evidence that was before the judge, including the evidence of the appellant herself on the main matter in issue, namely the mortgage loans. We are, therefore, in a rather better position than was the judge to make a decision on whether the appellant has managed to rebut the assumptions required by the act. 40. The new evidence is given in contradiction of a concession in the Crown Court that misrepresentations were made, which were either conceded to have been dishonest, or were taken by the judge to have been conceded to be dishonest: see above. Mr Green in his evidence disclaimed a concession of dishonesty on the appellant’s part, as opposed to a concession as to the fact of misrepresentations. It is clear nonetheless, from the passage of the judgment already quoted, that the judge was of the view that such a concession had been made. However, Mr Green advised there were no grounds of appeal. He had obviously argued strenuously that the transactions should not be assumed to be part of general criminal conduct for the reasons to which we have already alluded. It is perhaps not surprising, after the ex tempore judgment, that he may not have picked up, or may not have thought to be material, the wider concession that the judge seems to have thought that he (Mr Green) had made. 41. It seems to us clear that the appellant was saying throughout her conference with Mr Green on the day of the hearing that she had not inserted the “85,000” figure in the Nationwide form and did not know how it had got there. She had not had detailed instructions taken from her about that document until that day. She was saying that she understood her income figures were immaterial for the purposes of the application. Mr Green seems to have taken this to amount to a reckless carelessness or indifference as to what might be inserted in the form by others after she had signed it. He acknowledged that he had little discussion with his client about the lead up to the Halifax loan. On this basis, he considered that the judge would be bound to infer dishonesty and advised the appellant against giving evidence on this issue, advice which she readily accepted. 42. We consider that the fuller evidence now available to us casts significant doubt upon the view of the matter taken by Mr Green at the time. Looked at as a whole, in the light of the evidence of Mr Iandico and of the document that he has produced, we are satisfied to the requisite standard that any assumption made under the Act, in respect of the Nationwide transaction, is incorrect. We take the same view of the Halifax transaction upon which the appellant was barely cross-examined at all before us. On that transaction, her evidence too was that her own income figures were not needed, only Mr Coppin’s. This is not displaced by anything said by Mr Ellson of Halifax in his statement. 43. The clear picture that we have is that both transactions, so far as the appellant was aware, were ones based upon Mr Coppin’s income figures. There was a significant equity in the property and the appellant’s figures were not required. She thought no more about it than that. Such lack of care as she may have expressed to Mr Green, about what might go in the Nationwide form after she signed it, was based upon her understanding that her income did not matter, not upon a thought on her part that some bogus figure might simply be inserted for her by someone else after she had signed. This, it seems to us, was what she was trying to tell the Revenue investigators in her interview and Mr Green in the pre-hearing conference. 44. Mr Hall relied heavily on certain answers given by the appellant in her interview with investigators, who were investigating the tax credit matter, not an alleged mortgage fraud. Mr Hall himself described those interviews as containing a “penumbra of slightly ambiguous evidence”. We agree with that description of those interviews and do not accept that the answers amount to the unequivocal admissions of participation by the appellant in mortgage fraud which Mr Hall submitted that they did. 45. With regard to the Halifax loan, there were no figures in the Halifax records, verified by any signature of the appellant’s, which can be seen to have been provided by her in a dishonest fashion. She was faced with an impossible task of endeavouring to explain the inexplicable, about how figures came to be entered in the Halifax computers with which she said she had no involvement in providing. As with the Nationwide loan, she denied providing income figures; she asserted the same to be true of the Halifax loan. As to the former loan, she was able to assert that with some outside assistance. We saw no reason to disbelieve her answer to the same effect in relation to the second loan, where there was no document signed by her in which any figures were contained. 46. In our judgment, therefore, we consider that any statutory assumption against her is incorrect. Moreover, in the circumstances of this case, including the belated failure of the appellant’s own advisers to endeavour to get to the bottom of the figures before the final hearing, we believe that there would be a serious risk of injustice if any such assumption were made. 47. For these reasons, we allow the appeal. It is not necessary for us to embark upon further consideration of the remaining grounds. We have given careful consideration to the written arguments advanced by Counsel and have heard the oral argument of Mr Krolick on those points. However, we considered that it would be undesirable, in this complex area of the law, to embark upon any final decision on the remaining points where it is not strictly necessary for our decision to do so, in view of our firm conclusion as to the grounds of appeal on the facts. 48. As Counsel agreed, the consequences of the appeal being allowed should be that the confiscation order made in the Crown Court is quashed. In its place is substituted a confiscation order for £14,610, with a benefit figure specified in that same sum of £14,610. We shall direct that the formal order should require payment within 28 days, with a default period of imprisonment of 9 months. As already mentioned, however, the larger sum ordered by the Crown Court to be paid has been paid already. It is to be hoped that the balance between the sum paid and the sum of £14,610 will be repaid to the appellant as soon as possible, although we understand that we have no power so to order. We say nothing about any interest upon that balance.

```yaml citation: '[2014] EWCA Crim 620' date: '2014-04-04' judges: - LORD JUSTICE McCOMBE - 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} ======

Case No. 2003/03916/C1 Neutral Citation Number: [2004] EWCA Crim 1358 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 21 May 2004 B e f o r e: LORD JUSTICE WALLER MR JUSTICE DAVIS and MR JUSTICE DAVID CLARKE -------------- R E G I N A - v - CHRISTIAN FRANCIS McCONNELL -------------- Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) -------------- MR P McCARTNEY appeared on behalf of THE APPELLANT MR H O'BRIEN QUINN appeared on behalf of THE CROWN -------------- J U D G M E N T Wednesday 12 May 2004 LORD JUSTICE WALLER: I will ask Mr Justice Davis to give the judgment of the court. MR JUSTICE DAVIS: 1. On 25 June 2003, in the Crown Court at Stoke-on-Trent, before His Honour Judge Eades and a jury, the appellant was convicted by a majority verdict of indecently assaulting a male person aged 9 years. On 22 August 2003, he was sentenced to a three year Community Rehabilitation Order. He now appeals against conviction by leave of the single judge. 2. The background facts are these. At approximately 1pm on 10 June 2001 a 9 year old boy called Daniel was indecently assaulted by a man who sat down beside him and put his hand down his trousers. The incident occurred in an area called “the doctor's garden” in a hospital in Cheddleton. The garden was described as a grassy area surrounded by trees and shrubs which enclosed the area. Access could only be gained through the entrances. The prosecution case in summary was that the appellant, who was an in-patient at “the Grange”, a secure unit in that hospital, indecently assaulted Daniel by putting his fingers down his underpants. Daniel's mother and a psychiatric nurse at the hospital saw the appellant, whom they both knew, in the vicinity at the relevant time. Subsequently, Daniel and him mother identified the appellant at a video identification parade held on 17 September 2002. 3. The defence case in summary was a straightforward denial. The appellant accepted being in the vicinity at the time, but he maintained that he never entered the doctor's garden. The issue for the jury was one of identification. 4. Daniel gave evidence by way of a video-recorded interview. He said that he had been visiting his mother, who was employed at the hospital. He had been playing football with his mother, her partner and also their dog in the doctor's garden. The two adults walked away and he began to cry because his mother had left him behind. The indecent assault occurred when he sat on a low wall on the pathway leading to the doctor's garden. He screamed when the assault took place. 5. In interview, when asked what the man looked like, he said, “I haven't got the slightest clue”. When prompted, he described the man as being tall and aged about 21. He gave evidence that he and his mother saw the appellant in the hospital canteen some time after the incident, but prior to the identification parade, and that his mother pointed to the appellant and asked Daniel if that was the man. In cross-examination he was adamant that the man he had picked out at the identification parade was the man who had indecently assaulted him and not the person his mother had pointed out to him. 6. Daniel's mother gave evidence that she had walked a short distance away from Daniel before she and her partner started calling for him. She then heard a scream. She saw the appellant moving away from the doctor's garden and hurrying towards the main entrance of the hospital. She denied that she had pointed the appellant out to her son in the canteen, as her son claimed. She stated that neither of them saw the appellant after that day. She accepted that what she had originally described as screaming was more like sobbing and crying and that she heard the sounds after she saw the appellant leaving the doctor's garden. That would be after the assault. 7. Her partner, Keith Grain, gave evidence that they had left Daniel behind and they began to call for him. He saw a man 20 feet away walking from the direction of the hospital. He turned away and the man disappeared. He then saw the same man walking from the path to the doctor's garden. He identified a volunteer at the subsequent identification parade. 8. A psychiatric nurse called Michelle Walker described how she was standing next to the vending machine when she saw the appellant run through a side entrance near the fire exit. He ran past her, nearly knocking her over. She stated that he appeared to be scared and looked over his shoulder as if he was being chased. She watched him head along a corridor towards the back of the hospital, which was not near the canteen. 9. At the close of the prosecution case counsel appearing for the appellant made a submission of no case to answer, but that was rejected by the judge. 10. The appellant then gave evidence consistent with his interview. He denied going into the doctor's garden. He said that he had not seen Daniel's mother or the psychiatric nurse, although he accepted that he knew them. His evidence was that he had left the hospital to purchase cigarettes and he re-entered through the side exit, jogging slowly. He then turned right and stopped in the corridor for ten minutes to have a cigarette and then walked to the canteen. He said that, due to his medical condition, he often felt fearful and anxious and walked with his head down. 11. No complaint of any kind is made in relation to the summing-up. It is accepted that it was fair and balanced and appropriately highlighted the potential weaknesses in the identification evidence. Nevertheless, it is said that the identification evidence was so weak and unreliable that the judge erred in rejecting the submission of no case to answer at the close of the prosecution case. 12. There is no doubt that there were significant problems with the identification evidence of the 9 year old complainant. He gave no detailed identification description to the police at the time. There was a delay of over one year before the identification procedure, and before that the appellant had been (on the complainant's evidence, although not the evidence of his mother) pointed out to the complainant by his mother in the hospital canteen on a previous occasion, which gave rise to the suggestion that during the identification parade he identified the man that his mother had pointed out and not the person whom he recollected had assaulted him. In addition there were various discrepancies as to the time when he said he had screamed out and what his mother actually heard and what she saw when she heard him sobbing. 13. However, all this the judge accepted. He agreed if the evidence of the complainant was the only evidence, it would not suffice. But there was significantly more to it than that. It was not disputed that someone had assaulted the complainant. The witness, Keith Grain, saw a man at the scene and indeed disappearing away, albeit that he could not pick out the appellant at the identification parade. The mother, who knew the appellant, had seen him leaving the garden in a hurry and moving towards the main entrance of the hospital, albeit this was at a time after she had heard her son crying or sobbing. In due course she identified the appellant at the subsequent identification parade. She had seen no one else leave the garden. The nurse, Michelle Walker, who knew the appellant, had seen him running by a side entrance to the hospital and then away from the hospital looking scared. The side entrance was no great distance away from the main entrance. All of this, it was accepted, took place in a relatively short time-scale. 14. There was, therefore, an amount of evidence to support the young complainant's evidence, even if his evidence, taken entirely on its own, was unsatisfactory. Accordingly, the judge was justified in leaving the matter to the jury. Thereafter, it was for the jury properly directed, as they were in the summing-up, to decide whether or not the appellant was guilty. 15. In such circumstances it cannot be said that this conviction is unsafe. The appeal is therefore dismissed.

```yaml citation: '[2004] EWCA Crim 1358' date: '2004-05-21' judges: - LORD JUSTICE WALLER - MR JUSTICE DAVIS ```

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 [2024] EWCA Crim 93 No. 2023000053 B5 Royal Courts of Justice Thursday, 18 January 2024 Before: LORD JUSTICE POPPLEWELL MR JUSTICE CHOUDHURY HER HONOUR JUDGE ANGELA RAFFERTY KC REX V NRZ REPORTING RESTRICTIONS APPLY: The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences, which were committed against the applicant’s daughter, who is referred to in this judgment as “C”. No matter relating to her shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as a victim of these offences. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. __________ Transcript prepared from digital audio by Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences, which were committed against the applicant’s daughter, who is referred to in this judgment as “C”. No matter relating to her shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as a victim of these offences. This prohibition applies unless waived or lifted in accordance with s.3 of the Act . For these reasons it has been necessary to anonymise the name of the applicant. 2 On 12 October 2020, the applicant was convicted at the Crown Court at Newcastle upon Tyne, before HHJ Morland and a jury, of 15 counts of sexual abuse of his daughter, C. They included repeated oral and vaginal rapes and digital penetration of her vagina occurring when she was aged between 13 and 22. 3 The application for leave to appeal against conviction fashioned by the applicant after negative advice from the legal team who represented him at trial was 771 days out of time. His application for an extension of time was refused by the single judge on the grounds that there was no good reason shown for the lengthy delay and that, in any event, there was no merit in the grounds of appeal, nor in the application to adduce fresh evidence in support. The applicant renews the application for an extension of time. 4 The facts of this case are set out in the CAO Summary, which the applicant has received and there is no need to set them out at length. The grounds of appeal may be summarised as follows: 1) A statement from L, C’s sister, stating that the applicant had not abused her (i.e. L) was not disclosed to the defence. The Respondent’s Notice revealed that no statement had been obtained from L, but that she had been spoken to by the police and confirmed that she had not been abused by the applicant and that this was recorded in an Adult Concern form, which had not been listed on the unused material schedule. 2) Lawyers failed to represent the applicant competently by failing to call L to say that she had not been abused by the applicant and by failing to call two other witnesses, to say that complaints which C had made of sexual abuse by them when she was 6 and 14 years old, respectively, were false. The application to adduce fresh evidence referred to the evidence as coming from these three witnesses. No statements were attached to the application, but the nature of evidence in each case was identified in the form W as being “He/she can confirm that the alleged victim is being untruthful”. 5 By a letter dated 16 June 2023, the applicant requested further disclosure, comprising (a) a copy of the Adult Concern form referred to in the Respondent’s Notice in respect of L; (b) a social services report concerning C; and (c) purportedly missing messages between C and MM, to whom C had first made a complaint of the abuse. 6 In refusing the application, the single judge said this: 1) “So lengthy a delay in lodging this appeal against conviction, which was in October 2020, is not acceptable and no sufficient explanation has been given. I have, nevertheless, considered the grounds advanced. 2) Even if the recorded statements of [L] should have been disclosed by the prosecution, they were not material to the outcome. There was no suggestion at trial that the applicant had sexually abused anyone else. Indeed, he received a good character direction, albeit modified to reflect allegations of violence. 3) The criticisms of the trial legal team are not justified. There clearly was, whatever the applicant now says, an informal decision at the time not to call the identified witnesses. They would not have been in any significant position to undermine the pros case or advance the defence case (of denial). There was and is no significant evidential basis for asserting that the complainant had previously made the complaints of sexual abuse with regard to the two other men …which were false. Any attempt to bring in such allegations under s.100 of the CSA 2003 or s.41 of the YJCEA 1999 at trial would, inevitably, have failed. There is no basis for the admission of fresh evidence now in such circumstances. 4) The applicant has subsequently sought further disclosure, but not only should disclosure issues (if any) have been resolved at trial, the latest request is plainly a speculative fishing expedition and is unjustifiable. 5) The grounds advanced, whether taken individually or cumulatively, are devoid of merit. The jury were properly directed in the summing-up, they heard the evidence, they believed the complainant, they disbelieved the applicant.” 7 We have considered the papers carefully and entirely agree with the single judge’s reasons. We have also considered the applicant’s response to those reasons in his letter of 31 August 2023, but that letter essentially repeats points with which the single judge dealt and does nothing to undermine any of his conclusions. 8 Accordingly, the renewed application is dismissed. ________________

```yaml citation: '[2024] EWCA Crim 93' date: '2024-01-18' 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} ======

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 36 No. 202303082 A5 Royal Courts of Justice Tuesday, 16 January 2024 Before: LORD JUSTICE POPPLEWELL MR JUSTICE CHOUDHURY HER HONOUR JUDGE ANGELA RAFFERTY KC REX v TOMMY ROBINSON __________ 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 D. Wolchover appeared on behalf of the Appellant. The Crown were not represented. _________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 On 11 July 2023 the appellant pleaded guilty to two charges of possession with intent to supply crack cocaine and heroin respectively. On 18 August 2023 he was sentenced by Mr Recorder Beer KC in the Crown Court at Luton to two years' imprisonment. He appeals against sentence with the leave of the single judge. 2 Following reports of a male being seen dealing drugs, the police stopped and searched the appellant in the street. He had on him a total of 33 wraps, 25 of crack cocaine and 8 of heroin, with a combined value of around £330. He also had £210 in cash and two burner mobile phones. 3 He is now aged 41. He has a number of previous convictions but none in the last nine years and none for the supply of drugs. 4 The pre-sentence report revealed that he has a history of drugs abuse and previous attempts to get clean, but with relapses. On this occasion he was allowed to run up a drugs debt and had been forced to act as a runner to pay it off. He exhibited genuine remorse and a determination to get clean, and had shown good progress towards that goal whilst in custody awaiting sentence. He suffers from a schizoaffective disorder. 5 In sentencing, the Recorder treated him as having a lesser role in category 3 street dealing, which attracts a starting point of three years and a range of two to four and a half years. The recorder said that there were no aggravating features, and referred to his having taken steps to address his addiction. The Recorder then took three years after trial as the appropriate sentence, and reduced it to two years giving full discount for his early pleas of guilty. 6 The ground of appeal is that the Recorder failed to reflect the mitigation available to him. We see force in this argument. His genuine remorse, the steps taken to address his addiction, his resolution to distance himself from those involved in drug dealing, and his neurodiversity condition, all taken together, required a downward adjustment from the three-year starting point. 7 An appropriate sentence after a trial would have been 27 months. Accordingly, giving full discount for plea, we will reduce the sentence to one of 18 months' imprisonment on each count. 8 To that extent the appeal is allowed. __________

```yaml citation: '[2024] EWCA Crim 36' 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: [2011] EWCA Crim 1278 Case No: 201100665 A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 29th March 2011 B e f o r e : LORD JUSTICE AIKENS MRS JUSTICE RAFFERTY DBE MRS JUSTICE THIRLWALL DBE - - - - - - - - - - - - - - - - - - - - R E G I N A v VIJAY PAREKH - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7422 6138 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr J Woodcock appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - Judgment 1. MRS JUSTICE THIRLWALL: 2. The appellant is 51 years old. On 8th November 2010, at Harrow Crown Court, he pleaded guilty to an offence of theft of £74,880.75 from the post office at which he worked. On 10th January 2011 he was sentenced by Mr Recorder Kogan to 18 months' imprisonment. This is his appeal against sentence which he brings with the leave of the single judge. 3. The facts were these. The appellant was the sub-post master at Willesden Post Office. He had taken on the business as an agent of the Post Office in 2006. For some years it ran reasonably smoothly, notwithstanding the fact that the appellant had no previous business experience. However, as later transpired, during the second part of 2008 the business began losing money. Some serious errors were made by staff in 2008 which led to large losses. The appellant was obliged under his contract with the post office to make good those losses. The business continued to lose money. A plan the appellant had to convert premises above the post office failed when planning permission was refused. As the business got into greater difficulty he began to take money from the post office account to cover staff wages, council tax and other expenses. This went on for some ten months. 4. In April 2009, during a routine unannounced audit by the Post Office, he told the auditors that he thought that there would be a shortfall of between £50,000 and £60,000. In the event the shortfall was over £70,000, as we have already said. 5. The appellant co-operated with the investigation into the offence. He explained that he had hidden the thefts by inflating the figures at the end of each month and falsifying the figures for cash he entered into the computer system at the end of each day. The deception could not therefore be detected, save by a manual reconciliation of cash and stock which occurred during the audit in April 2009. 6. It was accepted by the Crown that the theft had occurred in the way and for the reasons we have described. None of the money went into the appellant's pocket, it all went to keep the business going. 7. The appellant admitted what he had done to the Post Office investigators. Nonetheless, he pleaded not guilty at the plea and case management hearing in November 2009. It is not entirely clear why that was the case, although we understand that it may have been on legal advice. Nonetheless, it was only when the case was warned for trial a year later, in November 2010, that he notified the court that he wished to change his plea, which he duly did. It meant that full credit could not be given for the guilty plea. 8. It should be said, and it is greatly to the appellant's credit, that he had repaid all of the money to the Post Office by raising a mortgage on his family home. 9. We turn then to the mitigation. The appellant is a man of impeccable character, a hard worker and a good father. He has worked from the age of 15. He spent his savings on buying the post office business so that he could support his family's future. The Recorder had before him, and we have read, a number of character references, some from his grown up children, others from members of the wider community. All speak of the appellant as a pillar of the community, a kind and good man who worked tirelessly and generously for charitable organisations. It is plain from our reading of the papers that the appellant's remorse was and is palpable, as is the dreadful shame that he feels about what he has done and the inevitable serious effect it has had on him, on his family and on his family's reputation in the local community. The Recorder accepted that he was not in good health, either physically or indeed mentally. 10. The Recorder approached his task thus. Firstly, he took account of the sentencing guidelines for theft. He observed, correctly, that this was a case where more than £20,000 was stolen and it was taken in breach of a high degree of trust. The guideline starting point was three years and the sentencing range was two to six years. The appropriate sentence was one of two years, but given the appellant's guilty plea, albeit not at the first opportunity, he reduced the sentence, by what we consider a generous 25 per cent, to one of 18 months' imprisonment. It was, on any reading, a careful, thoughtful and humane sentencing exercise. 11. The grounds of appeal may be summarised thus. In the light of the very considerable mitigation which was before the Recorder, and which we have rehearsed, the sentence was manifestly excessive. It was developed before us effectively in this way: that this was a wholly exceptional case because the appellant is a wholly exceptional man. 12. In support of his submission that this was an exceptional case which would have entitled the Recorder to sentence outside the guidelines, Mr Woodcock relies on paragraph 8 of the guideline itself, which reads: 13. "The starting point for sentencing ranges in this guideline are based on the assumption that the offender is motivated by greed or a desire to live beyond his or her means." 14. We accept, as did the Recorder, that the appellant was not in this case motivated by greed. It appears that his motivation was ultimately his pride in that he did not wish to acknowledge that he was failing in his business, and rather than approaching his family, who would have been willing and able to help him, he resorted to dishonesty. 15. It is apparent to us that in the course of this careful sentencing exercise the Recorder did not take as a starting point the three years' custody which is identified in the guidelines. He must have started at a lower starting point in order to come to his provisional sentence of two years to which he applied the 25 per cent discount. In short he took into account paragraph 8. 16. In our judgment, this was an extremely serious offence, committed over a prolonged period, some ten months. Whilst we recognise the very considerable mitigation, we cannot accept that the circumstances, either of the offence or of the offender, were exceptional. It was, as the Recorder said, an offence committed in breach of a high degree of trust. We have reflected on everything that has been urged upon us by Mr Woodcock this morning and we have reviewed the sentencing remarks with some care. In our judgment, the approach the Recorder took was entirely correct, as was the sentence. Accordingly, this appeal is dismissed.

```yaml citation: '[2011] EWCA Crim 1278' date: '2011-03-29' judges: - LORD JUSTICE AIKENS - MRS JUSTICE RAFFERTY DBE - MRS JUSTICE THIRLWALL 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 1509 Case No: 201105786B3, 201201183B3,201105973B1,201201705B2,201200074D2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Gloucester, (H.H.J. Tabor QC) T20117018 & 073 (Riat) The Crown Court at Mold sitting at Chester (H.H.J Dafydd Hughes) T20117235 (Doran) The Crown Court at Kingston (Mr Recorder Holland QC) T20117009 (Wilson) The Crown Court at Oxford (H.H.J. Eccles QC) T20110332 (Claire) The Crown Court at Southampton (H.H.J. Hope) T20107228 (Bennett) Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/07/2012 Before : LORD JUSTICE HUGHES MRS JUSTICE DOBBS DBE and MR JUSTICE GLOBE - - - - - - - - - - - - - - - - - - - - - Between : Riat, Doran, Wilson, Clare and Bennett Appellants - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr D. Mason QC and Mr G. Henson (instructed by Messrs Kangs ) for the Appellant Riat Mr H.C. Hills (instructed by Messrs Humphrys & Co ) for the Appellant Doran Mr O. Weetch for the Appellant Wilson Mr G. Logan (instructed by Messrs Reeds ) for the Appellant Clare Mr C. Baur for the Appellant Bennett Mr A. Kent QC (instructed by the Crown Prosecution Service ) for the Respondent Hearing dates: 27th and 28th June 2012 - - - - - - - - - - - - - - - - - - - - - Judgment NOTE: reporting restrictions apply to the cases of Clare and Bennett. Lord Justice Hughes : 1. We have heard consecutively five cases which involved the admission of hearsay evidence. They provide a further opportunity for this court to consider the correct approach in English law to such cases under the decision of the Supreme Court in Horncastle & Others [2010] 2 AC 373 ; [2009] UKSC 14 , read, as Lord Phillips explains at [13] that it must be, together with the judgment of this court in the same case (also [2010] 2 AC 373 , and [2009] EWCA Crim 964 ). The Strasbourg jurisprudence 2. As is well known by now, Horncastle involved, both in this court and subsequently in the Supreme Court, careful analysis of the impact on English law of the Strasbourg jurisprudence relating to Article 6(3)(d) of the European Convention on Human Rights. Since the decision of the Supreme Court there has been a further development at Strasbourg, because the ECtHR’s chamber decision in Al-Khawaja & Tahery v United Kingdom has been further considered by the Grand Chamber: 26766/05, [2011] ECHR 2127 . There is a thorough analysis of the relationship between Horncastle and Al Khawaja & Tahery in the judgment of this court in Ibrahim [2012] EWCA Crim 837 , to which we pay grateful tribute; it would not be helpful to repeat it. For the purposes of a Crown Court in England and Wales dealing day to day with cases of this kind, five propositions are central: i) the law is, and must be accepted to be, as stated in UK statute, viz the Criminal Justice Act 2003 (“CJA 03”); ii) if there be any difference, on close analysis, between the judgment of the Supreme Court in Horncastle and that of the ECtHR in Al-Khawaja & Tahery , the obligation of a domestic court is to follow the former: see R(RJM) v SSWP [2009] 1 AC 311 at [64] and Ibrahim at [87]; iii) there are indeed differences in the way in which principle is stated, but these may well be more of form than of substance; in particular, the importance of the hearsay evidence to the case is undoubtedly a vital consideration when deciding upon its admissibility and treatment, but there is no over-arching rule, either in the ECtHR or in English law, that a piece of hearsay evidence which is ‘sole or decisive’ is for that reason automatically inadmissible; iv) therefore, both because of point (ii) and because of point (iii), the Crown Court judge need not ordinarily concern himself any further with close analysis of the relationship between the two strands of jurisprudence and need generally look no further than the statute and Horncastle ; we endeavour to set out below the principal questions which must be addressed; v) however, neither under the statute, nor under Horncastle , can hearsay simply be treated as if it were first hand evidence and automatically admissible. Hearsay: the framework 3. As everybody knows, the CJA 03 gave effect to the report of the Law Commission, itself the product of long consultation and deliberation. The common law prohibition on the admission of hearsay evidence remains the default rule but the categories of hearsay which may be admitted are widened. It is essential to remember that although hearsay is thereby made admissible in more circumstances than it previously was, this does not make it the same as first-hand evidence. It is not. It is necessarily second-hand and for that reason very often second-best. Because it is second-hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. Even if there is a video recording of the witness’ interview, that person cannot be asked a single exploratory or challenging question about what is said. From the point of view of a defendant, the loss of the ability to confront one’s accusers is an important disadvantage. Those very real risks of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to its management. Sometimes it is necessary in the interests of justice for it to be admitted. It may not suffer from the risks of unreliability which often attend such evidence, or its reliability can realistically be assessed. Equally, however, sometimes it is necessary in the interests of justice either that it should not be admitted at all, or that a trial depending upon it should not be allowed to proceed to the jury because any conviction would not be safe. 4. In Horncastle in this court there are a number of references to hearsay evidence which is either “demonstrably reliable” or is “capable of proper testing”. The two expressions are several times used in tandem. The clearest use of the language is [57] where this court said: “57. Where the evidence before the court is that of an identified but absent witness, we can see no reason for a further absolute rule that no counterbalancing measures can be sufficient where the statement of the absent witness is the sole or decisive evidence against the defendant. That would include cases where the hearsay evidence was demonstrably reliable or its reliability was capable of proper testing and assessment, thus protecting the rights of the defence and providing sufficient counterbalancing measures.” The two expressions also appear elsewhere in the judgment, for example at [45], [79] and (in the context of fear cases) [86]. 5. The written arguments in several of the cases now before us suggest that this language may be being understood to mean that hearsay evidence must be demonstrated to be reliable (i.e. accurate) before it can be admitted. That is plainly not what these passages from Horncastle say. The issue in both this court and the Supreme Court in Horncastle was whether English law knew an overarching general rule that hearsay which could be described as the sole or decisive evidence was not to be admitted, or would inevitably result in an unfair trial if it was. In answering ‘no’, this court pointed out repeatedly that any such inflexible rule would exclude hearsay which was perfectly fair because either it did not suffer from the dangers of unreliability which often may attend such evidence, or (if it did) there were sufficient tools safely to assess its reliability. This court was far from laying down any general rule that hearsay evidence has to be shown (or “demonstrated”) to be reliable before it can be admitted, or before it can be left to the jury. That is to take only half of the paired expressions as if it represented a separate and universal rule. If that had been the rule adopted, the appeals under consideration in Horncastle would probably not have been dismissed. Nor can that be the rule, for it would mean that hearsay evidence has to be independently verified before it can be admitted or left to the jury. That would be to re-introduce the abolished rules for corroboration, which the Law Commission expressly, and Parliament implicitly, rejected; indeed in some cases it would render the evidence admissible only when it was unnecessary. 6. The true position is that in working through the statutory framework in a hearsay case (below), the court is concerned at several stages with both (i) the extent of risk of unreliability and (ii) the extent to which the reliability of the evidence can safely be tested and assessed. We give simple examples only, which are in no sense exhaustive. The circumstances of the making of the hearsay statement may be such as to reduce the risk of unreliability, for example if it is spontaneous: a very clear illustration is given in Horncastle in this court at [61]. The disinterest of the maker of the statement may reduce the risk of deliberate untruth. Independent dovetailing evidence may reduce the risk both of deliberate untruth and of innocent mistake: an illustration is given in Horncastle by the Supreme Court at [91]. The availability of good testing material (admissible under section 124) concerning the reliability of the witness may show that the evidence can properly be tested and assessed. So may independent supporting evidence. 7. The statutory framework provided for hearsay evidence by the CJA 03 can usefully be considered in these successive steps. i) Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (s 116-118) ? ii) What material is there which can help to test or assess the hearsay (s 124) ? iii) Is there a specific ‘interests of justice’ test at the admissibility stage ? iv) If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s 114(1)(d)) ? v) Even if prima facie admissible, ought the evidence to be ruled inadmissible (s 78 PACE and/or s 126 CJA) ? vi) If the evidence is admitted, then should the case subsequently be stopped under section 125 ? 8. Although there is no rule to the effect that where the hearsay evidence is the “sole or decisive” evidence in the case it can never be admitted, the importance of the evidence to the case against the accused is central to these various decisions. Step 1: specific gateways for admission 9. It remains the default rule that hearsay is not admissible. Its admissibility must be justified under one or other of the statutory exceptions. 10. Most of the common law exceptions which are preserved by section 118 should these days give rise to relatively little debate; none arise in these cases. 11. The same ought to apply to business and similar records admissible under section 117; these also are not before us. 12. The more controversial cases are likely to be those covered by section 116(2): death, illness, absence abroad, the lost witness, and fear, or by the additional possible gateway in s 114(1)(d). 13. Note firstly that s 116(1)(b) imposes a pre-condition for admissibility: a witness whose statement falls for possible admission under section 116 must be identified: R v Mayers [2008] EWCA Crim 2989 ; [2009] 1 Cr App R 30 . Likewise, section 123 imposes the pre-condition that the capability of the witness be proved. 14. Note secondly that s 116(5) contains a general exception: if the party which seeks the admission of the hearsay, or someone acting on his behalf, has caused the unavailability of the witness, the hearsay is not admissible. 15. The general principle underlying the preliminary gateway question in s 116 cases is clearly that the necessity for resort to second-hand evidence must be demonstrated. Illness, or, a fortiori death, may demonstrate such necessity. Absence abroad will do so only if it is not reasonably practicable to bring the witness to court, either in person or by video link. If the witness is lost, all reasonably practicable steps must have been taken to get him before the court: this will include not only looking for him if he disappears but also keeping in touch with him to avoid him disappearing: see for example R v Adams [2008] 1 Cr App R 35 and R v Kamuhuza 173 JP 55. 16. In a case of fear, there are supplemental provisions in subsections 116(3) and 116(4). The first stipulates that ‘fear’ be widely construed; it includes fear for others and may include fear of financial loss. The second, however, imposes a specific secondary gateway: the court must be satisfied that it is in the interests of justice for the statement to be admitted. In deciding whether it is or is not in the interests of justice to admit it, every relevant circumstance is to be considered. In particular, the court must consider the content of the statement, and the risk of unfairness to any party which would ensue from its admission, especially as a result of difficulty challenging it. Further, the principle explained in [15] results in the specific requirement in s 116(4)(c) to consider the availability of special measures. That shows that the court should take all possible steps to enable a fearful witness to give evidence notwithstanding his apprehension. This may be impossible, but very frequently it is perfectly practicable; a degree of (properly supported) fortitude can legitimately be expected in the fight against crime. A court considering an application in respect of a witness said to be in fear should also note the observations of this court at [83]-[88] in Horncastle [2009] EWCA 964; [2010] 2 AC 373 , which we append to this judgment. All these considerations illustrate in the case of fear the general principle applicable to all hearsay cases that second-hand evidence is only to be admitted if the trial will nonetheless be fair and any conviction resulting from it safe. The case of Wilson , which is before us and considered below, illustrates some of the practical considerations in a case where fear is asserted as the basis for an application to admit hearsay. Step 2: credibility material under s 124 17. If a specific gateway for admission is passed, we suggest that a court should always at that point consider the vital linked questions of (i) the apparent reliability of the evidence and (ii) the practicability of the jury testing and assessing its reliability. Section 124 is critical at this point. It permits the challenging party not only to adduce evidence going to credibility which would have been admissible at his request if the witness had given evidence in person (s 124(2)(a)), and to put in evidence inconsistent statements by the witness (s 124(2)(c)), but also (with leave) to adduce evidence which would otherwise simply have been material put in cross examination, as to which answers going purely to credit would have been final: s 124(2)(b). 18. In our view, the judge will often not be able to make the decision as to whether the hearsay evidence be admitted unless he first considers, as well as the importance of the evidence and its apparent strengths and weaknesses, what material is available to help test and assess it. If it is the Crown which is seeking to adduce the evidence, and if the evidence is important to the case, the judge is entitled to expect that very full enquiries have been made as to the witness’ credibility and all relevant material disclosed; that will not be confined simply to a check of the Police National Computer for convictions. If it is the defendant who is seeking to adduce the evidence, and the evidence is important to the case, the judge is entitled to expect that the defendant has supplied sufficient information about the witness to enable such proper checks to be made. Moreover, both counsel and the judge must keep the necessity for disclosure of section 124 material in mind throughout the trial and in the light of the way it develops. Steps 3 & 4; any interests of justice test; s 114(1)(d) and 116(4) 19. We have already referred to the separate requirement of s 116(4) that in a ‘fear’ case the judge must be satisfied that the admission of the evidence is in the interests of justice, having due regard to, in particular, the contents of the statement and the difficulty in challenging it. 20. Section 114(1)(d) contains a general residual power to admit hearsay evidence which does not otherwise pass a statutory gateway, if the judge is satisfied that it is in the interests of justice for it to be admitted. If this gateway is invoked, the judge is specifically directed to have regard to the (non-exhaustive) considerations set out in s 114(2). There have been several cases on this gateway which it is not appropriate to review here. We observe only that it must not become a route by which all or any hearsay evidence is routinely admitted without proper scrutiny. That would be to subvert the express provisions which follow in ss 116-118. This court emphasised in D(E) [2010] EWCA Crim 1213 that s 114(1)(d) cannot be used routinely to avoid the statutory conditions for the admission of evidence which properly falls to be considered under ss 116-118. Step 5: the power to refuse admission; s 78 PACE and/or s126 CJA 03. 21. Even when a statutory gateway is passed, and does not contain a specific ‘interests of justice’ test, section 78 Police and Criminal Evidence Act 1978 applies to evidence which the Crown wishes to adduce, and section 126 CJA 03 applies to all tendered hearsay. 22. The non-exhaustive considerations listed in s 114(2) as directly applicable to an application made under s 114(1)(d) are useful aides memoire for any judge considering the admissibility of hearsay evidence, whether under that subsection or under s 78 PACE, or otherwise. 23. Section 126 provides a free-standing jurisdiction to refuse to admit hearsay evidence. It does not apply to any other evidence tendered in a criminal case. If the evidence is tendered by the Crown, it stands in parallel to the general jurisdiction under s 78 PACE, which power is specifically preserved by s 126(2)(a) . It goes, however, further than s 78 because it applies also to evidence tendered by a defendant, which might, of course, be targeted either at refuting Crown evidence or at inculpating a co-accused. 24. The exact ambit of s 126 is not in question in any of our present cases and may need further consideration when it directly arises. The section makes specific reference in s 126(1)(b) to the possibility that hearsay evidence may be held inadmissible because it may generate undue waste of time upon satellite issues. But the jurisdiction provided by the section is not on its face limited to such a case; it explicitly extends to an assessment of the value of the evidence. The section appears under a side heading which, although not part of the enacted terms of the statute, suggests a general discretion, and such appears to have been assumed to be its effect, albeit without detailed argument to the contrary, in both Gyima [2007] EWCA Crim 429 and Atkinson [2011] EWCA Crim 1746 . 25. Whichever is the statutory power under consideration, it is clear that hearsay must not simply be ‘nodded through’. A focussed decision must be made whether it is to be admitted or not. This does not, for the reasons which we have given at [4]-[5], above, involve a pre-condition that the hearsay be shown independently to be accurate. But it does involve a careful assessment of (i) the importance of the evidence to the case, (ii) the risks of unreliability and (iii) whether the reliability of the absent witness can safely be tested and assessed. It follows that considerations such as the circumstances of the making of the hearsay statement, the interest or disinterest of the maker, the existence of supporting evidence, what is known about the reliability of the maker and the means of testing such reliability are all directly material at this point, as is any other relevant circumstance. Step 6: the power to stop the case; s 125 26. Section 125 is a critical part of the apparatus provided by the CJA 03 for the management of hearsay evidence. 27. In a non-hearsay case, the jury must be left to assess the evidence. It is not for the judge to do so. The judge’s power to stop the case upon a submission that there is no case to answer is limited to doing so if the necessary minimum evidence does not exist upon which a jury, properly directed, could convict the defendant. The judge does not assess the reliability of the evidence. Thirty years ago Galbraith [1981] 1 WLR 1039 disposed of the contention that the judge is entitled either to weigh up the reliability of the evidence or to decide at that stage whether or not any resulting conviction would be safe, and see the recent re-statement of that rule in R v F [2011] EWCA Crim 1844 . 28. It is essential to understand that the rule is different for hearsay cases. There, the judge is required by s 125 to look to see whether the hearsay evidence is so unconvincing that any conviction would be unsafe. That means looking at its strengths and weaknesses, at the tools available to the jury for testing it, and at its importance to the case as a whole. The passing observation in Joyce & Joyce [2005] EWCA Crim 1785 , to the effect that there is no difference between this duty and an ordinary Galbraith question, was made in a case where the point did not arise, because the court held that it would have been an affront to justice not to leave that case to the jury including the hearsay evidence; moreover it cannot stand either with the terms of the statute or the analysis in Horncastle (CACD) at [74]: “The hearsay evidence…is not to be disregarded at the stage of considering whether there is or is not a case to answer – it falls to be considered in the same way as any other evidence in accordance with the principles of Galbraith . But at the close of all the evidence the judge is required, in a case where there is a legitimate argument that the hearsay is unconvincing and important to the case, to make up his own mind, not as a fact-finder (which is the jury’s function) but whether a conviction would be safe. That involves assessing the reliability of the hearsay evidence, its place in the evidence as a whole, the issues in the case as they have emerged and all the other individual circumstances of the case. The importance of the evidence to the case is made a specific consideration by the statute: see s 125(1)(b).” 29. Section 125 may be confronted either at the end of the Crown case or at any time thereafter: see s 125(1). Whether it arises, and, if it does, when, must depend on the circumstances of each individual trial. Counsel and the judge should keep the section 125 question under review throughout the trial. As the terms of the statute, and the passage cited above from Horncastle both make clear, the exercise involves an overall appraisal of the case. It may often, therefore, best be dealt with at the end of all the evidence. Ibrahim [2012] EWCA Crim 837 30. The working of this framework is well illustrated by I brahim . There, this court considered a hearsay statement which had many conspicuous weaknesses. It contained accusations of rape and of a separate wounding, made by a drug addict who was working at the time as a street prostitute. The rape allegation had not been made at the time, nor for two and a half years afterwards, despite opportunity to make it on the night of the alleged offence and subsequently. Moreover, this allegation had been positively disclaimed by the witness on the night of the incident. The allegation of wounding was inconsistent in its content with a previous statement by the same witness. An explanation for not making the allegation on the first occasion was advanced which, even if not necessarily deliberately untruthful, could not be the real reason. The witness was, from her addiction, a potentially unreliable source. She had made a previous false complaint of rape against an unconnected person. There was every likelihood, if not certainty, that there had been general discussion amongst the prostitutes in the neighbourhood about the defendant and his rumoured offending. Such support as there was did not significantly help to resolve the question whether there had been a rape, nor did it provide a means of testing the reliability of the complainant. 31. In Ibrahim this court quoted part of the judgment of the Supreme Court in Horncastle at [108]. There, Lord Phillips (with whom all the judges agreed) said this: “In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable , dies or cannot be called to give evidence for some other reason. In so concluding, I have taken careful account of the Strasbourg jurisprudence. I hope that in due course the Strasbourg court may also take account of the reasons that have led me not to apply the sole and decisive test in this case.” The emphasis is supplied by ourselves to highlight the part of Lord Phillips’ judgment to which this court drew attention in Ibrahim . 32. In Ibrahim at this court, after drawing attention to the many weaknesses of the hearsay statement there in question, said this at [106]: “...If counsel for the defence had had the benefit of … Horncastle and … of the Grand Chamber in Al-Khawaja he would have been bound to have made a submission that even though Ms W’s hearsay statements satisfied the conditions in s 116(1) and (2)(a), the court should exercise its power to exclude them pursuant to s 78 of PACE. If, as we have concluded, those statements were central to the prosecutions’ case…and if, as we have concluded, they are not shown to be reliable , then we think it must follow that the admission of that untested hearsay evidence would have had such an adverse effect on the proceedings that the court ought not to have admitted the statements. ” To like effect at [109] it said this: “If an untested hearsay statement is not shown to be reliable and it is a statement that is part of the central corpus of evidence without which the case on the relevant count cannot proceed, then we think that the effect of the decisions in Horncastle and Al-Khawaja-GC is that the statement is almost bound to be unconvincing.” Once again, the emphasis is ours. 33. We respectfully agree that the hearsay statements in Ibrahim were so flawed, so central to the case, and so difficult to assess, that it was unfair for them to be left to the jury. The case is a good illustration of the use of the framework provided by the CJA 03 to ensure that a trial remains fair where hearsay evidence is tendered. However, these references at [106] and [109] to the statements not being shown to be reliable may be open to misconstruction if taken out of context. For the reasons which we have set out above at [4]-[5], it is clear that the framework of the CJA 03 does not carry the implication that a hearsay statement must be wholly verified from an independent source before it can be admissible. Nor does it mean that there has to be such independent verification before the case can properly be left to the jury. The passage quoted from the judgment of Lord Phillips was addressing the same overarching “sole and decisive” test as the passages in the CACD judgments which we have listed at [4] above. In speaking of evidence which is shown to be reliable it is clear that he was demonstrating the error of such an overarching “sole or decisive” test; he was recognising that hearsay evidence, even if sole and decisive, might be shown to be reliable in the sense that it is shown to be so to the jury, and the jury might perfectly properly accept it without any unfairness in the trial process. That that was also the view of this court in Ibrahim is demonstrated by the closely juxtaposed paragraph of the judgment, where, at [107] the court said: “We do not accept the submission that the question of the reliability and the credibility of Ms W’s evidence should have been left to the jury. It seems to us that the clear effect of the judgments of the Court of Appeal and Supreme Court is that it is a pre-condition that the untested hearsay evidence be shown to be potentially safely reliable before it is admitted… That is a matter for the judge to rule on, either at the admission stage or after the close of the prosecution case pursuant to section 125 of the CJA.” The emphasis is again ours. The critical word is “potentially”. The job of the judge is not to look for independent complete verification. It is to ensure that the hearsay can safely be held to be reliable. That means looking, in the manner we have endeavoured to set out, at its strengths and weaknesses, at the tools available to the jury for testing it, and at its importance to the case as a whole. Riat 34. Riat was a karate instructor in his forties. He was charged with sexual offences against one of his girl pupils who was, as he knew, either 13 or 14 years of age at the time. She had died before the trial, and the Crown successfully applied to adduce her several detailed and video-recorded interviews as hearsay evidence. The issue in the case was whether there was any sexual relationship at all between the defendant and his pupil. His case was that there had been none. The indictment charged a total of eight offences of sexual assault or sexual activity with a child, all predicated on actual consent, and two of rape, which asserted hostile non-consensual activity. The case against the defendant was that there had been an active sexual relationship for a period of about 14 months. The jury convicted of the former, consensual offences, all but one of which were specimen counts, but acquitted of the two non-consensual (and specific) counts. 35. Mr Mason QC, for Riat, accepts of course that the statutory gateway under s 116(2)(a) was passed, but contends that the pupil’s statements should have been excluded under s 78 PACE. He submits that the hearsay was central to the case, that it was evidence of multiple actions over a long period, so that there was a great deal which the complainant would, had she been present, have had to be asked about with the result that the inability to examine her was the more serious a disability, and that her evidence was not reliable because she could be shown to have lied on some occasions. He rightly makes no complaint about a conspicuously fair summing up, which went to some lengths to explain to the jury the correct approach to a witness it was not seeing questioned. 36. On the facts of this case, we are quite satisfied that the evidence was rightly both admitted and left to the jury. Our reasons are as follows. i) Although the police interviews were recorded in the usual way some time after the event and for the purpose of intended prosecution, the central allegation, of a continuing and chiefly consensual sexual relationship between a thirteen year old and her instructor in his mid-forties, had its origins in frequent spontaneous statements which were separately proved and which were made in circumstances redolent of truth. Several of the complainant’s friends gave evidence that she made no secret to them, contemporaneously with the offences, of her sexual relationship with her instructor, naming him. That suggested reliability, although it would not by itself eliminate the possibility of untruthful bragging, or conceivably fantasy. However, the first time the relationship came to the attention of anyone in any authority even more strongly suggested reliability and was not sensibly explainable away as either bragging or fantasy. The complainant had made a visit to the school nurse and confided her fear that she might be pregnant. She told the nurse in circumstantial detail about her relationship with her karate instructor, with whom she was in love. When the nurse was obliged to say that, since the girl was only 14 and the man in question thirty years her senior, she would have to report it, the complainant immediately asserted that the man in question was not her instructor after all, but a boy of 18, to whom she attributed a first name but of whom she gave no other information at all. That was a clear indicator that the original account, involving the defendant, was true and the change of story intended to avoid him getting into trouble. Thereafter the complainant, who had many troubles at home, attempted suicide and was accommodated, when recovering, in a supervised psychiatric rehabilitation unit for young people. There she told her head of house that the man in question was indeed the defendant and not the 18 year old. ii) Quite apart from the complainant’s friends giving evidence of her contemporaneous assertions of her relationship with the defendant, two of them gave evidence of it independent of the complainant. One friend had, if her evidence was truthful, accompanied the pair to the defendant’s flat, seen them disappear for some time into a bedroom together, heard conversations strongly suggesting sexual activity, and received from the defendant a plain admission in cogent terms, whilst holding a knife to the her throat and in effect swearing her to secrecy. Another had seen text messages received on the complainant’s telephone which were of a sexually explicit kind and which came, it appeared, from the defendant. iii) When resident at the supervised unit, the complainant had asked permission to contact the defendant. iv) Although there could be no questions of the complainant, the jury was able to see her, since her evidence had been video-recorded. v) There was a great deal of material by which the evidence of the complainant could be tested and assessed. vi) The complainant had undoubtedly lied at times. One or other of the things she told the school nurse could only be untruthful. When first interviewed by the police she adamantly denied any relationship with the defendant, and insisted that her boyfriend was the unspecific 18 year old. Then, on returning to the supervised unit, she had become anxious and asked one of the staff whether someone of her age could be guilty of perverting the course of justice, before explaining that she had lied to the police to protect the defendant. Further interviews followed, in which she asserted that the man in question was the defendant. Once again, one or other of these assertions could only be a lie. vii) Further, when subsequently accommodated in foster care, now aged 15, the complainant had told her foster mother untruths in order to get out of the house to meet a boyfriend with whom, by then, she appears to have been in a sexual relationship. viii) There had been a second defendant, another man of mature years and an associate of the defendant, who was also alleged by the complainant to have raped her, on a single occasion after repairing her computer. She could be shown to have sent him an appreciative message thanking him for the repair, at a time which must have been after what she later said had been rape. The judge refused to admit her hearsay accusation against this second defendant, on the ground that it was in reality the only evidence in his case and could not properly be tested. The result was that the Crown did not proceed against him, but Riat was able to deploy this apparent inconsistency as evidence pointing to the unreliability of the complainant. ix) The allegations of rape, one of them of anal rape, as distinct from the account of a consensual sexual relationship, had emerged late and only after the police had indicated their intention to re-interview the complainant about the more recent boyfriend of much nearer her own age, with whom there had been message exchanges speaking of anal activity. She had declined to be interviewed about this boy. x) There were extensive records relating to the complainant from the rehabilitation unit and subsequently when accommodated in foster care. 37. For all these reasons the hearsay evidence of the complainant was strongly supported and did not (unlike her evidence against the second defendant) stand as a bare, untestable allegation. It could safely be assessed by the jury. The question was whether there was a possibility that could not be excluded that there never had been any sexual relationship at all between this child and the defendant. There was ample evidence on which the jury could safely conclude that there had been such a relationship. The jury acquitted of the two counts of non-consensual activity, which did depend wholly on the unsupported evidence of the complainant. That shows that it applied itself realistically and responsibly to the assessment of her evidence. The overwhelming likelihood, on the evidence as a whole, was that the consensual, but abusive, relationship, had indeed existed, and that the complainant had done her best from time to time to avoid getting the defendant into trouble. 38. Riat’s appeal against conviction must accordingly be dismissed. Doran 39. Doran was tried for robbery and theft. The allegation was that he had cold-called a householder in his eighties and persuaded him that his porch needed painting. Having originally quoted £20, he had rendered a written demand/bill, apparently at the householder’s request, but in which the debt was stated to be £2000. He was said to have extracted several payments of £200 each, one of them on an occasion when he had entered the house and pinned the householder down on his bed. A surveyor gave evidence that the work was of little if any value. 40. The complainant householder had been interviewed and the interview video-recorded. He had died before the trial. The judge admitted the video recording as hearsay on the application of the Crown. 41. When first arrested and interviewed, the defendant had denied ever visiting the house. However, that was not the issue by the time of the trial. By then his fingerprint and handwriting had been identified on the written note of debt, which also bore a date of birth which, although not quite his, was the same day and year as his. He admitted at trial that he had written this note, and further that he had made the initial visit and had done the painting. He had also returned on more than one occasion. But, he asserted, he had not been the man who robbed the householder. That, he said, had been his brother. 42. The statutory gateway under s 116(2)(a) was admittedly passed. Was the evidence of the householder properly both admitted and left to the jury ? Our clear conclusion is that it was, for the reasons which follow. i) The jury could see the householder although he could not be asked any further questions. He was clearly, although frail, perfectly able to give a coherent account. ii) The suggestion is made by Mr Hillson behalf of the defendant that the householder’s recorded interview was unreliable because, rather than being his own account, it was contaminated by the interjections of his brother is not, on close examination, made out. The brother did intervene to add information of his own, but not in a way which either prompted the householder or in any way showed that the latter could not give a clear account of himself. He could and did, and critically on the question whether it was the same man who returned or a different one. iii) We do not agree with the argument that the householder’s failure to identify the defendant in a video identification procedure undermined his evidence; this was not an identification case because the defendant admitted that he was the painter and the writer of note. The householder did not identify him as such, but he was. The issue was whether it was or was not the same man who returned and robbed the householder. The same applies to the fact that the householder had not spotted what was said to be the defendant’s plain Irish accent. In any event, these two points, if they assisted the defendant, could as well be made in the absence of the householder as they could if he gave evidence. iv) There had been a different man, according to the householder, who came on some occasions, and he gave a description of him which would not have fitted the defendant’s brother, because he was much older. The householder was, on the issue of who had robbed him, disinterested; he had no motive to say that it was the same man if it was not. v) There was considerable independent support for the householder’s account that it was the same man who returned and robbed him. The note demonstrated that the defendant expected more money than he had hitherto been paid. The lie to the police strongly suggested guilt. The defendant had a history of exactly this kind of extortion from householders; he had pleaded guilty before the trial to a recent similar offence of blackmail and in 2002 had been convicted of an almost identical robbery. 43. For those reasons, this evidence was properly admitted and left to the jury. The judge’s directions appropriately reminded the jury of the constraints under which the defendant operated in the absence of the householder. The conviction is safe and the appeal must be dismissed. Wilson 44. Wilson was charged with being one of a large group of people who assaulted Paul Lawless, occasioning him actual bodily harm, outside a public house in Deptford at about midnight on 26/27 December 2010. A second defendant called Bayne was the only other similarly charged. Lawless and two witnesses, his sister Patricia and girlfriend Sophie Taylor, all made witness statements in the early hours of the morning on 27 th December. Paul Lawless and Sophie Taylor could not identify anyone. Patricia Lawless said that she recognised Bayne as the principal assailant and Wilson as one of the others. These three were the only eye witnesses. At the trial, none of them gave evidence; indeed the only Crown witness who gave any oral evidence was the officer in the case and that was limited to the police interviews with the defendants. The Recorder admitted as hearsay evidence the witness statements of all three eye witnesses, on the grounds that they did not give oral evidence through fear (s 116(2)(e)). 45. The defendants admitted presence but denied taking part in any attack. The issue was participation. There was CCTV evidence, which demonstrated there had been a violent incident involving a large group of people, but was insufficiently clear to identify individuals. There was scientific evidence linking Bayne to the attack but none linking Wilson to it. Both defendants made no comment in interviews after their arrests. 46. The principal ground of appeal is that the judge erred in allowing the hearsay statements to be read to the jury. 47. In supplemental witness statements, all three witnesses confirmed that they were prepared to go to court and indicated that special measures had been explained to them in that it might be possible for them to give evidence behind screens. 48. In further brief statements dated the 25 th February and 16 th March, the witnesses said they wanted to withdraw their statements and did not want to go to court. They said that the assailants lived in the area and would know where they lived; they were concerned for their safety. Patricia Lawless and Sophie Taylor added that if they did attend they would seek screening; it was however clear that they did not wish to go to court at all. The witnesses made it clear that there had been no threats of any kind, and Patricia Lawless said that she had seen Bayne in the street without problem; she asserted however that she was scared that he might cause trouble. 49. Notwithstanding these withdrawal statements, the case proceeded and the defendants were arraigned at a Plea and Case Management Hearing on 15 th April. There were further court hearings on 26 th May and 7 th June prior to the trial date of 13 th June. Witness summonses were issued to secure the attendance of the witnesses on 13 th June but were not served. The witnesses did not attend. The trial was ineffective. Directions were given for the case to be mentioned on 20 th June to review the position. 50. On 20 th June the witnesses attended and gave evidence before the judge who had adjourned the trial. They explained that they had not been served with the witness summonses. They said that they had assumed that the effect of their withdrawal statements had been to bring the trial process to an end. Each confirmed the contents of the withdrawal statement and expanded upon it. After they had done so, the prosecution asked for time to consider its position. Subsequently at a hearing on 5 th July before a different judge, the prosecution indicated that it intended to proceed to trial. An order was made for a hearsay application to be served. 51. That application, served on 26 th September, was considered at the beginning of the trial two days later by a Recorder who had had no previous conduct of the proceedings. The application contained no up-to-date information beyond what had occurred on 20 th June, but of that hearing there were no transcripts. The application summarised the evidence of fear as follows: “ Paul Lawless : ‘I live in the area. They do too. I know them. They know me. I still live less than a mile away. I was told by an unreliable source that I’d be injured. I do not wish to come to court and give evidence. There has been no approach to me or my family, but I base my fear on personal experience. Even if arrested, I would not give evidence.’ Patricia Lawless : ‘There has been no approach, intimidation or threats. I live at my Mum’s address. They know where I live. I’m afraid of what might happen after court. Others involved have not been arrested, they know who I am.’ Sophie Taylor : ‘There has been no approach or intimidation. I am not prepared to come to court. Only two have been caught. I don’t know who the others are. I have just found out that I am pregnant. I fear repercussions. I don’t know the others. I don’t know if they know who I am.’ ” 52. The only additional information relevant to the application that was made known to the Recorder is contained in a statement from PC Langguth dated 7 th July 2011. She had arrested Bayne for a separate theft matter on 23 rd June 2011. In an off-the-record conversation about an incident, which he said he had not reported to the police, Bayne told her that Paul Lawless had followed him to Oxford where he had assaulted him with a steering wheel lock, fracturing his jaw which necessitated reconstructive surgery in hospital. The clear inference is that this Oxford attack, if it occurred, happened prior to Paul Lawless giving evidence on 20 th June. 53. That was all the material the Recorder had. After reviewing the statute, he said this: “…they all live in an area of Deptford where it seems there is a real culture of intimidation against those who cooperate with the Criminal Justice system. The prosecution do not rely on any material suggesting the defendants are responsible for their fear… The court held an enquiry in June, I believe, where the three witnesses attended and re-affirmed their intention to refuse to give evidence through fear and they did that in court to a Crown Court judge with the parties present. I therefore find on the criminal standard that I am sure that they are unavailable through fear.” 54. The history of the proceedings indicates a number of areas of concern about the steps that were taken to secure the attendance of the witnesses at court and as to whether they were truly in fear. i) First, it is apparent from the failure of the prosecution to serve the witness summonses, and from the transcripts of the evidence of the witnesses at the hearing on 20 th June, that there had been no contact with the witnesses between the time when they made their withdrawal statements in February and March and the trial date in June. The issue of the witness summonses indicates that a decision had been taken to call the witnesses despite the withdrawal statements. That decision was consistent with the history of the proceedings. The witnesses had been prepared to make statements on the night of the incident. They had confirmed in supplemental statements that they were prepared to go to court. They were aware of special measures that would have enabled them to give evidence behind screens. There had been no trouble from the defendants or anyone else prior to the making of the withdrawal statements. In their withdrawal statements, neither Patricia Lawless nor Sophie Taylor completely ruled out giving evidence behind screens. Yet, the absence of contact with the witnesses between March and June indicates that the witnesses had not been given the support that they should have been given in the intervening period before trial. To the contrary, the witnesses seem to have been left to believe that the signing of their statements would be the end of the case. If that is the impression that had been given to them it is a further indication of lack of communication with them by those who had the responsibility for the prosecution and their support. That lack of support is contrary to what we have said earlier at [16] and to the appended paragraphs [83]-[88] of Horncastle . ii) Secondly, the hearing on 20 June was not designed to decide whether or not the fear gateway in s 116(2)(e) was passed, and no decision about this was made. Not only this, but neither was it designed to ensure that they attended the future trial date. The hearing amounted simply to an enquiry as to why they had not turned up on 13 th June. That may account for the way it was conducted by the judge. The witnesses attended voluntarily. The witnesses were all in court at the same time, listening to each other give evidence. Paul Lawless gave evidence first. Patricia Lawless and Sophie Taylor drew support from what he had said. The transcripts reflect the contents of the withdrawal statements. The judge simply assumed without argument that no cross examination by defence counsel should be permitted. The procedure of testing the claim to fear in this type of scenario is of necessity sensitive. Concern that cross examination by the defence may be inappropriate is wholly understandable – for example in some cases of alleged domestic violence it may be an avenue for worsening apprehension. However, if testing by the defence is properly refused (after consideration) then it is incumbent upon the judge to take responsibility rigorously to test the evidence of fear and to investigate all possibilities of the witnesses giving oral evidence in the proceedings. The manner in which that should be done will depend on the circumstances of the case and the witness and will necessarily involve discussions with counsel as to approach and questions to be asked. But the critical thing is that every effort has to be made to get the witness to court. Here, none of that happened. True it is that these three witnesses were informed that they could be compelled to attend the future trial date by the issue of a witness summons or warrant, but they were merely asked if they would be prepared to give evidence. It was not explained to them how important it was for them to attend and to do so. They were not encouraged to perform their public duty of giving evidence. They were not warned that it could be a contempt of court to fail to give evidence if they were called to give evidence. Although they were all saying that they did not want to be known to have given evidence involving the defendants, in fact only Patricia Lawless gave any such, and no-one explained to her that the defendants already knew this and that anyone in court would also know if and when her statement was read as admissible hearsay. No ruling was given by the judge as to whether the witnesses should or should not give evidence, nor whether the ‘fear’ gateway was passed. No further witness summonses were issued prior to them leaving court. iii) Thirdly, following the hearing on 20 th June, there is no evidence to suggest that anyone had any further contact with the witnesses. There is no information as to what effect the hearing of 20 th June had upon them. There is no way of knowing what effect a more rigorous testing of their evidence on 20 th June would have had upon them. By 5 th July, a decision had been taken to apply to proceed in their absence. Save for the additional information from PC Langguth, the hearsay hearing on 28 th September proceeded in ignorance of anything that might have occurred in the intervening period, including any change in circumstances that might have arisen. iv) Fourthly, no steps were taken to investigate the account given by Bayne to PC Langguth. We cannot know if it was true or not, but if it was it would strongly suggest that Paul Lawless was not in fear but rather inclined to deal with his grievance outside court. No check appears to have been made to see if Bayne had been admitted to hospital and, if so, what were the details of the admission. Paul Lawless was not spoken to by the police. No further enquiry about his alleged fear took place in court to supplement his evidence of 20 th June or that of the other two witnesses. It may have been assumed on the part of the Crown that the alleged Oxford incident was either false or irrelevant, both of which conclusions would be surprising and of concern. The Recorder was apparently told of the allegation but what argument there was, and what conclusion if any he reached, are unknown. His ruling admits of the possibility that he adopted a suggestion, maybe made by the Crown, that Bayne’s jaw injury had been sustained on the night of the Deptford incident: see [60] below. What if any basis for this there was we do not know; nobody appears to have said that Bayne was seen to be injured, nor that he suffered a blow such as might fracture his jaw. v) The result of all this was that the Recorder was left to deal with the hearsay application on the morning of the trial, when further adjournment was no doubt highly undesirable. He was left to deal with it without the witnesses being in court and available if his decision had been otherwise. He appears to have been presented more or less with a common assumption that the statutory gateway was passed, even though this had not been decided on 20 th June. His observation about the culture in the relevant part of Deptford may or may not reflect what can sometimes, regrettably, be a reality, but there seems to have been no evidence of any intimidation, general or specific, there. He was not enabled to see the witnesses for himself, nor even a transcript, which would have revealed the true nature of the earlier hearing. vi) Lastly, in the course of his ruling, the Recorder noted that the only other means by which the evidence of the witnesses could have been received would have been by compelling them to attend by way of a witness summons or warrant with a view to their statements being put to them in the witness box if they refused to give evidence and were treated as hostile. He indicated that the defence did not require that to be done; he regarded that as understandable and said that the defendant “rightly” did not suggest this to be a satisfactory alternative means for the presentation of their evidence. This is not a matter for the defendant, although his submissions must be considered; it is for the Crown and for the judge when considering whether to allow the Crown to avoid the possibility by reading hearsay statements. There will be cases where it is unsatisfactory, particularly where it may occasion real harm to a witness who is in genuine fear. However, there will be, and are, many cases where it is not unsatisfactory and it is in the interests of justice that it be done. 55. In the context of the history of the proceedings, the finding of ‘fear’ was not soundly based. We do not agree that it would have been inappropriate for the witnesses to have been compelled to come to court. If they had been brought, they might well have been persuaded to give evidence. If any had refused, it would not inevitably have been wrong to treat him or her as hostile. The passing of the fear gateway was not established. 56. Even if the ‘fear’ gateway had been established, it is submitted that the prosecution hadn’t established that, having regard to S.116(4), the statements ought to be admitted in the interests of justice. 57. In the statement of Patricia Lawless, she said that a person she recognised as Bayne attacked her brother Paul from the front by punching him in the face causing him to fall to the ground, and then sitting on top of him and punching him about the head several times. Whilst they were rolling on the ground about eight males joined in the assault. At least two other people kicked Paul to the head whilst he was on the ground. She said that she recognised one as Wilson who lived around her area. He kicked Paul whilst she tried to intervene and he then stepped back and kicked him again. She did not know the third male. She tried to pull Bayne off Paul and as she did so a further man she knew to be called Ray pulled her back telling her to leave them to it. She tried to phone the police. Wilson shouted “She’s phoned the fucking police.” He then shouted at her to put the phone down. The incident moved into the road and Wilson kicked and punched Paul’s head again. The group started to run away then Bayne returned and tried to stamp on Paul’s head before departing. It was dark but there was some street lighting. It was frosty and clear. She said she had a good, unobstructed view of what happened and was present throughout. She gave descriptions of the people involved in the assault. 58. In the statement of Paul Lawless, by contrast, he said the assault started when he was approached from behind and felt an arm around his neck. He then felt a sharp pain in his right ear like a bite. The next thing he remembered was waking up in hospital. If Patricia is correct, he had in the meantime both spoken to a police officer and had been taken home. 59. In the statement of Sophie Taylor, she said she observed some of the incident but had been drinking and did not recognise anyone involved. She saw a white male attack Paul initially then other males approached and began to kick and punch him whilst he was on the ground. There were about six to ten males kicking Paul on the ground. She gave descriptions of the first three men involved in the attack. None matched the description of Wilson, nor did she describe hearing the words attributed to Wilson by Patricia Lawless. 60. The Recorder rightly considered the provisions of S.116(4). He found that collusion was unlikely because only Patricia Lawless had identified anyone. Drink was relevant, but the key witness was Patricia Lawless who stated she was not drunk, having only (she said) been sipping her drinks since about 1630 that day. Her statement appeared to be reliable. She was correct about time, location, and the nature of the attack, all of which were confirmed by the CCTV evidence. She was correct in identifying the defendants as present, as they admitted. The scientific evidence in relation to Bayne’s white T-shirt and evidence in relation to Bayne’s jaw were consistent with her account of him being involved. The defence could test the evidence on “ Turnbull ” type elements and credibility material under S.124 to seek to undermine her evidence about their participation. He concluded that it was in the interests of justice that the statements should be read. 61. This was a multi-person incident late at night outside public house premises where people had been drinking. This was not a single person incident, such as a domestic violence incident, where no “ Turnbull ” type issues arose. Here, the events were more complex with room for confusion as to what had actually happened. No single eye witness to the events was to be called to give oral evidence. The statements to be read of the sole eye witnesses revealed material differences in important respects. In particular, there was a vast difference between the accounts of how the assault started, and further differences in the descriptions of the assailants, both of which matters were of considerable significance. The account of Patricia Lawless may have been shown to be reliable in relation to Bayne by the independent scientific evidence. However, there was no such material supporting her evidence implicating Wilson. Also, an hour after the incident, Paul Lawless had told the police that Bayne and Ray had assaulted him. He could only have obtained the information from his sister and his failure to mention Wilson’s name cast additional doubt on her account. The case was not a true Turnbull one, but it did raise questions whether Patricia Lawless had correctly identified Wilson as a participant. The defence had no opportunity to put any questions to anyone to test that proposition. The practicability of the jury testing and assessing the reliability of the evidence of these witnesses was severely diminished. The hearsay statement of Patricia Lawless in particular stood as a bare allegation against Wilson. There was a risk that its admission would result in unfairness to the defence in that it could not be sufficiently tested and assessed. We are not satisfied pursuant to S.116(4) that in the interests of justice the statements ought to have been admitted. 62. In such circumstances, it is not necessary to consider a second ground of the appeal contending that there was no case to answer. For the above reasons alone Wilson’s appeal against conviction must be allowed, and his conviction quashed. Clare 63. In respect of this case, nothing must be published which is capable of identifying the child victim of the offence. 64. The defendant was charged with a single offence of sexual assault of a child of three and a half. On a summer’s day he was a visitor at the home of the child’s family. He had been drinking for some of the day. There was a tent in the garden, and in the early evening he was in it with the little girl. She was wearing just a T-shirt and knickers. She came in and out of the house from time to time. Once she said to her mother that the defendant had kissed her. Mother thought nothing of that. A little later the child returned with, according to Mother, a quite different demeanour, and hid behind the door. When Mother asked what was wrong, the child asked for some cream on her private parts because she was sore. As she pulled down her knickers to show Mother, she said that the defendant, whose family name she used, had “licked me”. By the time Mother had decided what to do, and had called the police, the defendant had left without saying anything by way of farewell. 65. There were attempts at medical examination that evening and again the next day which were obstructed by the child hiding behind her mother and refusing to co-operate. There were some scratches and bruises on the legs, but the complaint was not of anything which would have caused them. There was some redness of the private parts, but not such as could provide any evidence one way or the other whether the complaint was true. The child’s reaction was such that the police officers concluded that there was no point in attempting even an assessment of whether an ABE interview would be possible. The child was, it follows, never a potential witness. The only evidence of what she had said in the very few words of complaint, was what her mother recounted. 66. The defendant was arrested the same evening and interviewed next day. In the course of arrest, he told one of the officers not to look at him as if he were a paedophile. According to the officers they had not said anything to suggest any enquiry into indecency with a child. At trial the defendant asserted that he had been told that he was under arrest for assault on a minor, but this was not the evidence of the police, nor had he suggested this when the topic was raised in interview. 67. In interview the defendant said that it was possible that DNA would be found on the girl’s knickers. He gave an explanation. According to him, he had been lying on his side in the tent reading, when the child arrived pursued by a wasp. She came up to the side of his face and he saw that there was a sticky sweet on her knickers. In an effort both to swat the wasp and remove the sweet, he caused her to stumble into him so that his face was pressed up against her groin. This explanation he repeated at trial. 68. In the event, there was no scientific evidence of matchable DNA on the knickers. There was both a full female profile and a contribution from a male. The knickers gave a positive reaction to a chemical test for saliva, but the same result might have been attributable to urine; it was not possible to say that there was saliva present. 69. The Crown applied to adduce the child’s complaint to Mother. The relevant gateway was s 114(1)(d). The Judge worked his way carefully through the s 114(2) factors. He concluded that the case did substantially depend on the girl’s statement; we agree that without it there would not have been a case to answer. 70. Mr Logan, for the defendant, complains that the evidence should not have been admitted because no assessment of the ability of the little girl to be interviewed under ABE conditions had been undertaken. We agree that if this has not been done when it ought to have been, that may be a material consideration when confronting the s 78 PACE question of fairness in relation to the admission of the evidence. But we are quite satisfied that on the facts of this case the Judge’s careful conclusion that the police officers had approached the question responsibly and reached a proper answer was correct. On any view, the child was near the bottom of the age range in which an ABE interview might be achievable. Her very strong reaction to any examination or enquiry was a powerful reason not to trouble her further, and more enquiry of her risked being abusive. Given her age, any ABE interview would have had to be completed very promptly. 71. If the girl’s statement to Mother had stood alone, we are sure that it would nevertheless have been wrong to admit it, and (if it had been admitted) wrong to allow the case to go to the jury. Children of three and a half vary a good deal. The jury could have had no opportunity to assess her. Nor could she have been asked any questions at all; even though at her age there would have been limitations on what could properly be asked as well as on what she could be expected to remember, there would have been some which might have helped assess her evidence – for example whether there had been a wasp, or a sweet, or (perhaps) a stumble. If her one-line statement to Mother had stood alone, we do not think that the fact that there could have been no other evidence of the complaint would have justified its admission. It was not as if, for example, she had given a compelling demonstration of what happened (as occurred in the non-hearsay case of Barker [2010] EWCA Crim 4 ). We should have reached that conclusion without taking into account the evidence that a month or so later she had, when reluctant to visit her father on a contact day, used as an excuse the complaint that he had done to her what (the defendant) did. That latter allegation undoubtedly cast doubt on her evidence if unsupported, although it might also be explained by her having learned that such complaints would result in her being taken seriously. 72. The girl’s statement to Mother, however, did not stand alone. It was powerfully supported by (i) the defendant leaving the house without a word, (ii) the remark to the officers about paedophiles and the late appearance of the asserted justification for it, and (iii) the remarkable story of the wasp and the sweet (not found in the tent as he said it would be) which the jury was plainly entitled, having heard him explain it, to reject as absurd. Given this additional material, there was, we are satisfied, sufficient support for the girl’s statement to Mother which was also spontaneous, unprompted and made originally not by way of complaint but simply by way of request for cream. Moreover, given this material, there were, we are satisfied, sufficient means to test and assess what she had said. The judge’s conclusion is not open to reversal by this court. His directions to the jury carefully alerted it to the inability of the defence to ask any questions of the little girl and to the dangers of attempting to judge her without seeing her. 73. It follows that the appeal must be dismissed. Bennett 74. In this case also there must be nothing published which is capable of identifying the female victim of the offences. 75. The defendant was a community psychiatric nurse charged with the offence of sexual activity with a person with a mental disorder when having the care of her (s 38 Sexual Offences Act 2003). The Crown case was that he had had an ongoing sexual relationship with his patient for some months. There was no doubt that the complainant (aged 47) was, despite her mental disorder, capable of consenting. She had given very long interviews to the police which had been video-recorded and were available to the jury. By the time of the trial, however, she was plainly too ill to give oral evidence, and that was not in dispute. Accordingly, the gateway in s 116(2)(b) was admittedly passed. The Judge admitted her recorded interviews as hearsay on the application of the Crown. 76. In them, the complainant gave a long, garrulous, and by no means always consistent account of a continuing sexual relationship. It was apparent that by that time she had become convinced that she had been abused, or exploited, by the defendant. She gave a disparaging account of him, and asserted that although there had been a demonstrative and affectionate relationship, and he had made a number of attempts at sexual intercourse, on only one occasion had he succeeded, and then, she said, the penetration had been brief. 77. When the defendant was interviewed by the police, he was conspicuously carefully asked almost exclusively neutral questions. The interview is a model of its kind. He was at pains to deny any kind of affectionate or sexual relationship with the patient. In the initial stages he also said that she had scarcely been to his house and contended that their dealings had been entirely arms-length and professional. Bit by bit, however, it became apparent that this first response was untruthful; he had to accept, for example, that they had spent a weekend away in a hotel in Somerset where they shared a bedroom. Eventually, he was confronted with a number of affectionate messages and cards which he had sent her, including a Valentine’s card, and, more explicitly, a second card in which, amongst other things said, he had thanked her for “the great sex”. At this, he broke down and frankly told the police that he had lied. He went on to say that his career was ruined, as no doubt it was. He then gave them a detailed account of a sexual relationship. They had, he said, had intercourse on a number of occasions. He volunteered details of the position they had used. Subsequently he faced disciplinary proceedings in his job and made a formal signed admission of a sexual relationship. 78. The offence under s 38 Sexual Offences Act 2003 may be committed by any sexual touching, but the maximum penalty is greater if it involves penetration of vagina, anus or mouth. In this case the Crown charged two offences which both did involve penetration. Count 1 was a representative count of vaginal intercourse. Count 2 was intended to reflect a specific occasion on which the complainant had said that the defendant penetrated her with his fingers in an incident which was non-consensual. The issue at the trial was a narrow one. The defendant did not now deny that he had had a continuing affectionate and sexual relationship with the patient. But he contended that there had never been any successful penetration. He relied on the evidence of the complainant’s interviews for the proposition that, despite what he had said to the police, there had only been a single occasion of attempted intercourse, which, he said, had been unsuccessful. The jury convicted of count 1 but acquitted of count 2. 79. We are quite satisfied that the decision to admit the interviews of the patient as hearsay evidence was, on the facts of this case, correct and fair. The truth was that the case could be proved against the defendant without her evidence at all, by relying on the messages and cards which he had sent her, the initial lies to the police and then the explicit confessions which, in the police interviews although not in the briefer employment admission, could not be other than confessions to penetrative sexual activity. In recanting the confession to the police, the defendant said that he was suicidal at the time he made it. Why that should lead him first (falsely) to deny any relationship and then to admit more than had occurred was not easily explained. There was ample material which enabled the reliability of the complainant to be tested. She was internally inconsistent. She could be shown to have asserted that she suffered from serious medical conditions when her doctor gave evidence that she did not. She had subsequently made another complaint against a second erstwhile boyfriend, whose virtues she had in the interviews repeatedly contrasted with what she now said were the defendant’s demerits; there was a clear basis for concern that she was prone, no doubt because of her psychiatric condition, first to profess great affection and then rapidly to turn to wounded resentment. She had made non-sexual complaints against neighbours and could be shown to have threatened to set fire to some property. It is impossible that any juror could have thought her wholly reliable. Whilst we accept that the course of the trial was governed by the decision to admit the evidence, which the defendant had resisted, if anything its admission provided him with an avenue of possible defence which would scarcely have been open to him without them, namely her inconsistencies and her apparent contention that their penetrative sexual activity had been very limited. What remained to be decided was whether, coupled with his contemporaneous actions and subsequent admissions, her graphic descriptions demonstrated a sexual relationship or not, and, if they did, whether there had been the single act of hostile assault which was charged in count 2. By its verdicts the jury very plainly accepted her evidence only where shown to be correct by the defendant’s own words and actions. 80. The summing up was discursive and full. It is not suggested that it did not contain ample warning to the jury of the dangers of hearsay evidence. It may be that it did not draw together the specific sequence of suggested inconsistencies on which Mr Baur, for the defendant, sought to rely, but the judge was not required to repeat counsel’s speech. The defendant had, understandably, insisted on the whole four hours or so of the complainant’s interviews being played to the jury in order to maximise the impact of her inconsistencies; the result was that the judge was obliged to cover a great deal of ground. 81. For these reasons, the appeal against conviction must be dismissed. 82. The defendant also appeals against sentence. The judge passed a sentence of two years, observing that it was the greatest pity that the defendant had forfeited the mitigation which would have been afforded had he stood by the admissions which he had made. He had a number of impressive testimonials to the character of the defendant, and he was well aware that his career of some 15 years or more was ruined, independently of punishment imposed by the court. He was also well aware that there was absent the additional element sometimes present of offending against a woman who could not properly consent. But the sentence of two years was, as Mr Baur realistically accepted, somewhat low in the suggested range for offences of this kind. There was the plainest breach of trust, and both the actual and potential harm to a woman of fragile psyche was considerable. If there had been an absence of consent, the offence would have been much more serious. There is no basis for saying that the sentence was either manifestly excessive or wrong in principle. We must dismiss the appeal in relation to sentence. Appendix Extract from Horncastle [2009] EWCA 964; [2010] 2 AC 373 (CACD), relating to fear. THE AMBIT OF FEAR “83. A witness who is in fear may be as effectively unavailable as a witness who is dead, ill, or overseas. In some cases, the fear will have been induced by or on behalf of the accused. Nor is it always the case of fear induced by or on behalf of the accused is limited to one of overt traceable threats. Sometimes the reputation of the accused and his associates is enough: this is one way in which gangs can maintain their hold on an area. The finding that the fear is induced by or on behalf of the accused may be an inevitable one if the enquiry be made: cui bono? Where the fear is attributable to the accused or his associates, it is an additional factor supporting the admissibility of the evidence, since otherwise a premium is put by the criminal justice system on the intimidation of witnesses. 84.The case of a witness in fear is not, however, limited to fear induced by or on behalf of the accused. It is a melancholy fact of life that in some communities or geographical areas, a citizen is intimidated by a climate of fear from being seen to give evidence. The point is well illustrated by some of the cases considered by the ECtHR. In Doorson at paragraph 71 the court said: “Although, as the applicant has stated, there has been no suggestion that Y15 and Y16 were ever threatened by the applicant himself, the decision to maintain their anonymity cannot be regarded as unreasonable per se . Regard must be had to the fact….that drug dealers frequently resorted to threats or actual violence against persons who gave evidence against them. Furthermore, the statements made by the witnesses concerned… show that one of them had apparently on a previous occasion suffered violence at the hands of a drug dealer against whom he had testified while the other had been threatened. In sum there was sufficient reason for maintaining the anonymity of Y15 and Y16.” 85. In Kok v The Netherlands (Application 43149/98, BAILII: [2000] ECHR 706 ), sufficient reason for anonymity was found in the reputation of the defendant, without any evidence of actual threat and in Visser v The Netherlands (Application 26668/95) in the reputation of a co-defendant (paragraph 47). Although in such cases consideration must first be given to whether special measures can be adopted to enable such a person to give evidence, in some instances none will suffice. For the reasons explained in R v Mayers [2008] EWCA Crim 2989 at paragraph 9, witness relocation and protection is normally incompatible with the continuation of any ordinary life, and indeed with the Article 8 rights of the witness. So it may happen that, after all possible efforts to obtain the attendance of the witness have been made, the fearful witness is indeed as unavailable as the witness who is dead, ill or overseas. S.116 of the CJA 2003 recognises this. 86. In our view, the terms of s.116, like the jurisprudence of the ECtHR, do not impose the requirement that the fear must be attributable to the defendant. It is sufficient that the witness is in fear. No doubt Parliament took into account the well known difficulties of ascertaining the source of a witness's fear. Nor does Article 6 of the ECHR require this. As we have set out, it is our view that in determining whether the requirements of Article 6(3)(d) have been met, two of the essential questions are whether there is a justifiable reason for the absence of the witness supported by evidence (see the fifth and sixth propositions that we consider can be derived from the case law of the ECtHR) and whether the evidence is demonstrably reliable or its reliability can properly be tested and assessed. On this analysis, if the witness can give evidence which should be heard by the court in the interests of justice, but is clearly too frightened to come, then it matters not whether that fear was brought about by or on behalf of the defendant – there is a justifiable reason for the absence. The task of the court is to be sure that there are sufficient counterbalancing measures in place (including measures that permit a proper assessment of the reliability of that evidence fairly to take place) and to permit a conviction to be based on it only if it is sufficiently reliable given its importance in the case. The provisions of the CJA 2003 require all this to be done. 87. It is, however, important that all possible efforts are made to get the witness to court. As is clear, the right to confrontation is a longstanding requirement of the common law and recognised in Article 6(3)(d). It is only to be departed from in the limited circumstances and under the conditions set out in the CJA 2003. The witness must be given all possible support, but also made to understand the importance of the citizen's duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed. For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the CJA 2003 based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all. 88. It may well be that in the early stage of police enquiries into a prominent crime the investigators need to seek out information on a confidential basis: that is a matter for practical policing and not for us. But no person who is becoming not simply a source of information but a witness should be told that his evidence will be read, or indeed given any indication whatsoever that this is likely. The most that he can be told is that witnesses are expected to be seen at court, that any departure from that principle is exceptional, and that the decision whether to depart from it is one for the Judge and not for the police. In the case before us of Marquis and Graham, as we set out at paragraphs 127 and 132, the Judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down, although relocated, and killed. Although notorious, that incident was an extreme and very unusual case. The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness. Whilst the CJA 2003 requires fear to be construed broadly, it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury. If the evidence can really only be assessed by the jury by seeing the witness, as will often be the case, it may not be admitted. If it is admitted and central to the case, there is a significant possibility that at the end of the trial the Judge may have to rule under s.125 that a conviction relying upon it would be unsafe.”

```yaml citation: '[2012] EWCA Crim 1509' date: '2012-07-11' judges: - LORD JUSTICE HUGHES - MR JUSTICE GLOBE ```

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Neutral Citation Number: [2010] EWCA Crim 3052 Case No. 2010/05339/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Thursday 9 December 2010 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE GRIFFITH WILLIAMS and MRS JUSTICE SHARP DBE - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE No. 63 of 2010 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - ZEKEL WATSON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4A Telephone No: 020 404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Miss S Whitehouse appeared on behalf of the Attorney General Mr S Redmond appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T THE LORD CHIEF JUSTICE: 1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient. We grant leave. 2. The offender is Zekel Watson. He is 22 years of age. He has no convictions since the age of 13 (which we treat as irrelevant for present purposes). On 3 December 2009, in the Crown Court at Birmingham, before His Honour Judge Creed, he pleaded guilty to possessing a prohibited firearm. He was jointly charged with two co-defendants. We say nothing about the allegations against them. They are facing trial on a number of different matters. 3. The offender was charged on an indictment containing two counts. The first, to which he pleaded guilty, charged possessing a prohibited firearm. The second, of which he was subsequently acquitted by a jury, charged possessing a firearm with intent to cause fear of violence. 4. In summary, on 8 September 2009 the police stopped a car being driven by the offender. The two co-defendants were passengers in the car. In the boot of the car, tucked away, the police found a sawn-off shotgun which was loaded with a 12 bore cartridge. The boot also contained, among other things, a knife, a pair of rubber gloves and a further live shotgun cartridge. 5. Taking it in more detail, the three co-defendants met up in Perry Bar, a suburb of Birmingham. The offender and one of the other two arrived at the meeting point first in a black BMW Mini, which the offender was driving. The third defendant arrived in his own car. He left his car and joined the offender and the co-defendant in the black BMW car. The trial proceeded on the basis that the Crown alleged that one of the co-defendants was seen to put something into the boot of the offender's car before he joined the other two inside it. The Crown's case was that it was the sawn-off shotgun with which we are concerned that was put into the boot. That evidence was challenged at the trial. The offender gave evidence that he had received the gun two days earlier. Following the jury's verdict, it was decided that he should be sentenced on the basis of his own account of these matters. We must underline that, even if that was so, we are far from certain that this reduced his culpability. 6. The three co-defendants set off on a journey from Perry Bar towards Hertfordshire. After they had driven for almost two hours, the police stopped the car. They found the shotgun wrapped in plastic bags hidden in the spare wheel compartment in the boot. It was a shortened, single-barrelled shotgun. Its serial number had been erased. The offender's fingerprint was on the outside of one of the plastic bags. Police also found a satellite navigation system in the car with a destination post code apparently entered into it. The post code was very close to the place where the offenders had been stopped. A piece of paper containing a name, address, telephone number and the same post code was found on one of the co-defendants. It is plain that the offenders were delivering a lethal, loaded weapon to somebody. 7. When he was interviewed the offender said that the BMW he had been driving was his mother's car. It was driven by her and sometimes his younger sister was a passenger. He had arranged to meet up with the co-defendants that day. During the drive he had noticed the satellite navigation system. He had not inserted the destination post code into it. He had started to follow the directions, but had not asked the other two why they should be driving in that direction or as to the place they intended to go. He denied knowing that there was a firearm in the boot of the car. 8. The co-defendants similarly said that they had no knowledge of the firearm, or the destination, or the purpose of the drive. On one view, nobody in the car knew anything about the gun. 9. At his trial the offender gave evidence. He said that two days before the car was stopped he had been approached by an associate. He knew him by the street name "Inferno", but his first name was Leon. He had asked the offender to keep a gun for him. Although he had wanted to refuse, Leon was very persistent. This was the first mention of Leon that the offender had made. No further information was given. We understand that the information has not been sufficient for the police to be able to investigate further. 10. The judge considered a pre-sentence report. The offender is a bright young man. He lives with his mother and younger sister. He is studying at a university, where he had completed the first year of a degree course. According to the author of the pre-sentence repot, on his release from his anticipated sentence the offender's intention was to return to university. 11. The judge decided that there were exceptional circumstances which justified him in imposing a lower sentence than the prescribed sentence for this offence. In due course he sentenced the offender to a total of three and a half years' imprisonment. In reaching his conclusion that that was appropriate, he took account of his view that the offender had been unwilling to take possession of the weapon, that he had given a full explanation of how this had all come about, and had identified the person who had given the weapon to him. The judge took account of the fact that the weapon was in the family car which, in the context of cases like this, he held was an exceptional circumstance. 12. We find nothing exceptional about the offender's apparent unwillingness to possess the gun. The judge was entitled to make the finding of unwillingness, but it is often the case that young men and women of apparently good character are persuaded, cajoled, encouraged and sometimes pressurised into carrying, or holding, or looking after these lethal weapons. They are chosen for that purpose because it is unlikely that the police will have any interest in them, and so those who own the weapons can keep them safe and secure. The offender knew what he was doing. We find nothing in his evidence to suggest that he was under duress. Nor do we find anything in the evidence to suggest that he provided information on the kind of scale which would have enabled the police to hunt down and identify the men who had provided the weapon. We are also deeply concerned that the fact that the car in which the gun was found was used by the offender's mother and sister was treated as a mitigating factor. On one view it is an aggravating feature, if for no other reason than it might have implicated his mother and sister. 13. The aggravating features of this case need no recitation. The offender was convicted of possession of a loaded, sawn-off shotgun which was on its way to be delivered to someone. The fact that that individual may not for present purposes be identified does not diminish the seriousness of the fact that the gun was to be handed over in a condition where it was capable of being used immediately and certainly capable of being used in the course of gun crime. 14. This offence cried out for the imposition of at least the minimum prescribed statutory sentence. We do not think that the offender could have had any complaint if the sentence had been longer than it was. We have reflected on the situation as it stands before us now, having been before the Crown Court and having been dealt with as it was. We shall quash the sentence imposed by the judge and substitute for it a sentence of five years' imprisonment. _________________________________

```yaml citation: '[2010] EWCA Crim 3052' date: '2010-12-09' judges: - MR JUSTICE GRIFFITH WILLIAMS - MRS JUSTICE SHARP DBE - 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} ======

CO/9771/2007 Neutral Citation Number: [2009] EWHC 236 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT Royal Courts of Justice Strand London WC2A 2LL Date: Tuesday, 20th January 2009 B e f o r e : LORD JUSTICE MAURICE KAY MR JUSTICE SIMON - - - - - - - - - - - - - - - - - - - - - Between : SVETLANA WRITTLE Claimant v DIRECTOR OF PUBLIC PROSECUTIONS Defendant - - - - - - - - - - - - - - - - - - - - - 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 Gary Bell (instructed by Messrs Freeman & Company) appeared on behalf of the Claimant Ms D Chanteau (instructed by the Treasury Solicitor) appeared on behalf of the Defendant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE SIMON: This is the hearing of a case stated by the Richmond Justices. 2. The facts can be stated shortly. On 31st December 2006, the appellant was charged at Richmond Police Station with failing to provide a specimen of breath contrary to section 7 of the Road Traffic Act 1988 . The prosecution case, which was heard on 25th April 2007, was as follows. The appellant had been stopped at about 1.00am on the A316 by Police Constable Fox and asked for a specimen of breath at the road side. After seven attempts at blowing into the machine she provided a positive sample. 3. The test procedure at the police station had been conducted by Sergeant Nestling. It had begun at about 1.20am and continued for some time. The appellant failed to provide a specimen of breath. During the course of the procedure Sergeant Nestling asked for the appellant to be examined by Dr Banerjee, an experienced forensic medical examiner, in order to see if there was some medical reason why the appellant could not provide a specimen. As far as Dr Banerjee could tell there was none. 4. The court heard from each of these prosecution witness and watched a CCTV recording of the procedure being carried out. The prosecution closed its case and the hearing was adjourned since there was insufficient time to hear the defence case that day and a further hearing was fixed for 4th July. The court understood that they would hear from the appellant; another witness of fact, Ms Goodwin; and an expert witness, Dr Eccles, who was to give evidence that the appellant may not have been able to give a specimen of breath because of her distressed state. The report of Dr Eccles had been served on the prosecution on 29th March 2007 and the evidence in rebuttal from Dr Banerjee on 4th April. 5. It is convenient at this stage to refer to the antecedent procedural history. On 10th January 2007, the appellant appeared at a first hearing when it was indicated that a "not guilty" plea would be entered. On 8th February 2007 the CCTV recording of the testing procedure was served on the defence. On 16th February a "not guilty" plea was entered and the matter was adjourned to a case management hearing. This occurred on 7th March, when the court considered a letter from the appellant's solicitors, Freeman and Company, which confirmed the "not guilty" plea and indicated that no novel or complex issues arose. The defence was said to be factual and the intention was to put the prosecution to proof of its case. It was said that no part of the prosecution evidence could be agreed and that the trial would last a full day. In the event, that was an underestimate. 6. It is now necessary to consider what happened following the adjournment on 25th April. On 6th June, the appellant's solicitor served an additional report on the prosecution from a Dr Trafford. Dr Trafford had looked at the CCTV recording of the testing procedure and was critical of Sergeant Nestling's conduct of it. In his view, Sergeant Nestling had given advice to blow into the device as if it were a balloon and to blow for ten to 15 seconds. He also suggested that the machine user log should be looked at to see if the machine had been recorded as having failed and he suggested that the service history should be requested. In view of the stance that the prosecution took at the resumed hearing, it might have been expected that they would express strong views about the service of such a report at such a stage. In the event, objection was raised at the resumed hearing on 4th July. 7. Save for one point, it is unnecessary to set out the arguments deployed by the defence as to why Dr Trafford's evidence should be admitted and by the prosecution as to why it should not. The point which is material is the submission on the appellant's behalf, recorded in paragraph 4 of the case: "The appellant had assumed that Sergeant Nestling would accept that he was mistaken in giving instructions to blow like a balloon and also to blow for between ten and fifteen seconds." This point is repeated in paragraph 11 of Mr Bell's skeleton argument: "It was anticipated at trial that Sergeant Nestling would have accepted that his instructions as to how to blow into the machine were wrong." We should say it was not Mr Bell who conducted the hearing before the Magistrates, but Mr Freeman. 8. The Justices, having referred to the Criminal Procedure Rules and two authorities of this court, to which I will come shortly, decided not to admit Dr Trafford's report. In short summary, they concluded that Dr Trafford's report was not relevant to the issues in the case and sought to introduce wholly new issues. In paragraph 6 of the case stated, the court responded to the suggestion that Sergeant Nestling's evidence came as a surprise to the appellant: "We were satisfied that Sgt Nestling's evidence came as no surprise to the defence and we wondered why the defence had not addressed their concerns over the nature of his evidence, prior to the commencement of the trial on 25th April." This is a reference to the CCTV recording which had been handed over to the defence in February and which formed the only basis for Dr Trafford's report. As the case stated expresses it: "Sergeant Nestling gave evidence regarding the questions he put to Ms Writtle and his explanation of the procedure. He had been cross-examined by the defence, who had sight of the CCTV and Sgt Nestling's statement, well in advance of the trial date. We did not feel that the interests of justice would be served by admitting this statement." 9. The question for the opinion of this court is whether the Magistrates were wrong in law to rule that Dr Trafford's evidence was inadmissible. It seems to me that the question might also have been expressed as whether they were justified in refusing to admit it, a question which focuses attention on a matter of discretion. It matters not in the present case, since in my view the answer to the question is the same. The 2005 Criminal Procedure Rules imposed a duty on the parties to comply with the rules and to take the procedural steps required by the rules. 10. It is convenient to set out what was said about these rules by this court in the case of the Director of Public Prosecutions V Chorley Justices [2006] EWHC 1795 (Admin) on 8th June 2006 at paragraph 24 to 26: "24. In April 2005 the Criminal Procedure Rules came into effect. By 15th April they were in force. They have effected a sea change in the way in which cases should be conducted, but it appears from what has happened in this case that not everyone has appreciated the fundamental change to the conduct of cases in the Magistrates' Courts that has been brought about by the rules. The rules make clear that the overriding objective is that criminal cases be dealt with justly; that includes acquitting the innocent and convicting the guilty, dealing with the prosecution and the defence fairly, respecting the interests of witnesses, dealing with the case efficiently and expeditiously, and also, of great importance, dealing with the case in a way that takes into account the gravity of the offence, the complexity of what is in issue, the severity of the consequences to the defendant and others affected and the needs of other cases. Rule 1.2 imposes upon the duty of participants in a criminal case to prepare and conduct the case in accordance with the overriding objective, to comply with the rules and, importantly, to inform the court and all parties of any significant failure, whether or not the participant is responsible for that failure, to take any procedural step required by the rules. 25. Rule 3.2 imposes upon the court a duty to further that overriding objective by actively managing the case. 26. The pertinent part relevant to what happened in this case is the early identification of the real issues. It is, it seems to us, clear that what should have happened is that at the first hearing of a case of this kind, after the entry of the plea of not guilty, the defendant should have been asked first what was in issue. At that stage and at the first hearing, he should then have been asked what witnesses did he need." 11. The importance of the date of this decision, 8th June 2006, is that it was six months before the first hearing in this case. Freeman and Company would have been aware of what the court had said in the Chorley Justices case since they were acting for the defendant in that case too. Rule 24(1) of the Criminal Procedure Rules sets out the requirement to disclose expert evidence as soon as is practicable and rule 24(3) states the party that seeks to adduce expert evidence and failed to comply with rule 24(1) may not adduce the evidence without the leave of the court. 12. The Justices were also referred to the decision of this court in the case of Malcolm v Director of Public Prosecutions [2007] EWHC 363 (Admin) in which Burnton J stated that it is the duty of the defence to make clear to the prosecution and the court at an early stage both the defence and the issues it raises: In my judgment, Miss Calder's submissions, which emphasised the obligation of the prosecution to prove its case in its entirety before closing its case, and certainly before end of the final speech for the defence, had an anachronistic, and obsolete, ring. Criminal trials are no longer to be treated as a game, in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage. That duty is implicit in rule 3.3 of the Criminal Procedure Rules, which requires the parties actively to assist the exercise by the court of its case management powers, the exercise of which requires early identification of the real issues. Even in a relatively straightforward trial such as the present, in the magistrates' court (where there is not yet any requirement of a defence statement or a pre-trial review), it is the duty of the defence to make the real issues clear at the latest before the prosecution closes its case." My Lord Lord Justice Maurice Kay agreed with the substance of those remarks. 13. Mr Bell, in the light of his consideration of those cases, submitted that the issue was raised before the end of the prosecution case since it must have been apparent that the defence was not agreeing with the answers given by Sergeant Nestling. It remains the fact that this issue, if such it was, was plainly not raised as a matter of expert evidence. 14. In the present case, either the defence knew the nature of the defence which was later set out in Dr Trafford's opinion and failed to raise it appropriately; or it did not, and contrived the defence after the prosecution case had closed. Mr Bell urges us to conclude that it was the former but in either case the approach is to be deplored. It seems to me that the Justices were right in saying that the evidence was inadmissible since it did not relate to an issue which had been raised at the appropriate stage. The appropriate stage would have been a reasonable time before the cross-examination of Sergeant Nestling so that he and the prosecution had an opportunity to consider it. Equally, it was in my judgment entirely open to the Justices to refuse the application as a matter of discretion. The evidence on which Dr Trafford commented, the CCTV recording, had been disclosed at a very early stage. If the late application to adduce further expert evidence had been allowed, delay would undoubtedly have occurred. The prosecution would have needed to consider whether to call its own expert evidence in answer and whether to recall Sergeant Nestling. Doctor Trafford's opinion also raised possible doubts about the reliability of the equipment used, all of this after the prosecution had closed its case some months before. For all these reasons, I would answer the question posed in the case stated: "no". 15. I would add three further points. First, the present regime of case management should in general ensure that the issues in the case are identified well before a hearing. There will, of course, be cases where something occurs in the course of a trial which may properly give rise to a new issue, but this was not such a case. The days when the defence can assume that they will be able successfully to ambush the prosecution are over. Secondly, if the defence always intended to challenge the way in which Sergeant Nestling conducted a procedure, as appears to be the case, it was inappropriate for Freeman and Company to have indicated to the court on 7th March 2007 that the defence was factual and the intention was to put the prosecution to proof of its case. Thirdly, nothing I have said about the evidence of Dr Turner should be taken to be an acceptance that he was qualified as an expert to give the evidence in his report. It seems to me that the Justices would have had to consider whether he could give admissible opinion evidence on the mechanics of the testing procedure. His qualifications appear to be that of a chemist and his experience of road traffic cases appears to relate to the taking of blood and urine samples. 16. I would dismiss the appeal. 17. LORD JUSTICE MAURICE KAY: I agree. 18. MS CHANTEAU: I am very much obliged. My Lord, alas, I cannot hand forward a schedule of costs in the correct format. All I was able to receive -- those who instruct me had not done it because they received what was sent to chambers and they had seen that the only costs I can rightly ask for, without a schedule today, as evidenced by that fax, is £2,330. 19. LORD JUSTICE MAURICE KAY: From what source are you seeking that? 20. MS CHANTEAU: I had understood that the client was privately paid. I know not. 21. LORD JUSTICE MAURICE KAY: Well, I make the same assumption, not having seen any evidence to the contrary, but do we have authority to order costs against him? I am looking at section 17 of the Prosecution of Offences Act. I am afraid I have a two year old Archbold, but it used to be at paragraph 6-23. 22. MS CHANTEAU: My Lord, I cannot help you. 23. LORD JUSTICE MAURICE KAY: It is a provision which enables us to order that the prosecution's costs in a fixed sum should be paid out of central funds. Section 17 says nothing about an unsuccessful appellant's costs. Section 80 goes on to define the circumstances in which an accused person can be ordered to pay costs but, whereas section 17 refers to proceedings before a Divisional Court of the Queen's Bench division, section 18, I think, does not. 24. MS CHANTEAU: My Lord, I am afraid I am at a disadvantage before you. I do not have the section in front of me and I only received that this morning. 25. MR JUSTICE SIMON: You might say it would be curious if the Court of Appeal could make an award of costs against a defendant but the Divisional Court could not, since this is effectively an appeal. 26. MS CHANTEAU: My Lord, it is, but, in fairness to the appellant, on a point of law it may be, in fairness to the defendant, that he may not understand. (pause) 27. LORD JUSTICE MAURICE KAY: Are either of you in the position to make submissions on section 17 and 18? 28. MR BELL: My Lord, I am not. No, I have been happily sitting there hoping it would not come to me to stand up. I have to say, my learned friend and I have discussed a number of matters relating to this court and my assumption was that costs would follow the event. 29. LORD JUSTICE MAURICE KAY: What we should do about costs is allow you to make submissions in writing, both sides, by Friday of this week. 30. MS CHANTEAU: I am sorry, my Lord? 31. LORD JUSTICE MAURICE KAY: By Friday of this week, as to whether we have the power, and, if so, from where it derives, to make an order against the appellant. The next matter that will arise is that we have been shown a piece of paper quantifying those costs in the sum of £2,330. Speaking for myself, I find that astonishing, because the earlier part of the document tells us that prosecuting counsel's fees are £330 per day, plus £80 per hour preparation, and it then says "to this should be added two thousand pounds re: CPS and police costs for the appeal". Well, the police have not got any costs for the appeal and I am at a loss to understand how the CPS could have occurred more than a modest sum in instructing prosecuting counsel. 32. MR JUSTICE SIMON: Certainly not in attendance today, sitting behind you. 33. MS CHANTEAU: No. Well, my Lord, I will certainly ensure that that is done. 34. LORD JUSTICE MAURICE KAY: Do you want to say anything about the quantum, if we find out that we can order them against you? Again, speaking for myself, if we have the authority to make the order against you, I think we would probably be minded to make it. We would be happy to consider quantification anyway because, if we do not have the power to order against you, it comes out of central funds and under section 17(3) we have to fix the sum. I am pretty sure it is not going be £2,330. Do you want to say anything other than associate yourself with what you have heard from here? 35. MR BELL: All I can say, my Lord, is this: that I am grateful for your Lordship giving us time effectively to resolve this matter. If my learned friend does submit that the court do have power, I will have a look at that and see whether or not I wish to respond or accept it. If I does not, that is the end of the matter. If it comes to quantum, I leave it in your Lordship's hands. It does seems odd that there is an arbitrary sum of £2,000 for preparation of the case which effectively is dealt with by the Magistrates' Court and my learned friend has put before this court. (pause) 36. LORD JUSTICE MAURICE KAY: Well, what we shall do is we shall make an order in the prosecution's favour for £750 but we shall leave open, pending your written submissions, as to whether that is going to be paid by the appellant or whether it is to come out of central funds. 37. MS CHANTEAU: My Lord, I am very much obliged. 38. MR BELL: For completeness sake, my Lord, can I just concede that if the court does have power then I would certainly not be arguing against the court using that power. 39. LORD JUSTICE MAURICE KAY: Well, no, I am pleased to hear it. Thank you both.

```yaml citation: '[2009] EWHC 236 (Admin)' date: '2009-01-20' judges: - LORD JUSTICE MAURICE KAY - MR JUSTICE SIMON ```

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 [2021] EWCA Crim 665 CASE NO 202002418/A2 Royal Courts of Justice Strand London WC2A 2LL Tuesday 27 April 2021 LORD JUSTICE BEAN MRS JUSTICE FARBEY DBE RECORDER OF NEWCASTLE (HIS HONOUR JUDGE SLOAN QC) (Sitting as a Judge of the CACD) REGINA V ANTON DANIELS Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) MS L COLLIER appeared on behalf of the Applicant. J U D G M E N T MRS JUSTICE FARBEY: 1. On 11 September 2020, in the Crown Court at Chester before His Honour Judge Thompson, the applicant (then aged 36) was sentenced as follows. On count 1, conspiracy to supply Class A drugs namely cocaine, 6 years' imprisonment; on count 2, conspiracy to supply Class A drugs namely diamorphine (more commonly known as heroin), 6 years’ imprisonment to run concurrently; on count 3, conspiracy to convey a “List A” article into or out of a prison, 4 years' imprisonment to run consecutively. The total sentence was therefore 10 years' imprisonment. The applicant had pleaded guilty to all three offences at an earlier hearing. He renews his application for leave to appeal against sentence after refusal by the single judge. 2. A co-defendant, Tania Dewar, also pleaded guilty to counts 1 to 3. The judge sentenced her at the same time as the applicant to a total of 7 years and 6 months' imprisonment. She received 4 years' imprisonment concurrent for two counts of possession of Class A drugs with intent to supply, on a separate indictment. The Facts 3. In relation to the conspiracies charged in counts 1 and 2 the applicant, together with Ms Dewar and others, supplied drugs to customers between 20 October 2019 and 23 February 2020. They were part of a well-established “county lines” operation capable of delivering drugs nationwide. It was the applicant's operation in that, among other things, he bought drugs, was linked to multiple “graft” telephones, sent out “flare” messages to attract business, set up new business and enforced drug debts with violence. He had links to and lived in the Manchester area but travelled to Macclesfield with Dewar. The operation also extended to Scotland and there were attempts to extend it to London. Dewar was more of a street dealer albeit she too appears to have had some control over telephones. 4. In relation to count 3, the prosecution relied on phone evidence to prove that the working relationship between the applicant and Dewar continued after she was arrested on 10 January 2020 and remanded in custody at HMP Styal. Phone messages demonstrated that they worked together with the aim of bringing prohibited items into the prison including Class A drugs. At one stage Dewar asked the applicant to send her "pregabalin, crack, zencos, bacci, rizla, lighters and crack crack crack, SIM cards". On another occasion Dewar mentioned "cocaine for bank transfer". The applicant at one stage sent a message saying: "Tell Tanya her parcel is ready. Everything is here she asked for". A search of Dewar's cell revealed a notebook containing the applicant's name and bank details. Those bank details had been provided to other people. It was clear that Dewar had made or received payments while in prison. The Judge's Sentencing Remarks 5. Dealing with counts 1 and 2 the judge applied the sentencing guideline for the supply of a controlled drug. In relation to culpability, he agreed with the prosecution that the applicant's role in the conspiracies fell between significant and leading. In relation to harm, these were category 3 offences. The judge considered the aggravating factors: this was a county lines case; the offences covered two types of Class A drug; the operation continued over a significant period of time; the applicant made a significant amount of money; he used violence to enforce debts and had previous convictions for significant violence. 6. Taking into account these various factors the appropriate sentence on counts 1 and 2 was 8 years' imprisonment before discount for the guilty pleas. Applying a 25% reduction reflecting a timing of the pleas, the sentence on each of these counts was 6 years to run concurrently. 7. In respect of count 3, the judge applied the same sentencing guideline, saying that the offence fell at the "top end of Category 3, significant role, at seven years". He took into account the principle of totality and also the difficulties faced by prisoners in the present Covid-19 pandemic (see R v Manning [2020] EWCA Crim 592 ), reducing the sentence to 5 years and 4 months' imprisonment before discount for guilty plea. Applying a 25% discount, the sentence was 4 years' imprisonment, which was consecutive to the 6 years imposed on counts 1 and 2, so that the overall sentence was 10 years. 8. Ms Laura Collier, on behalf of the applicant, focuses her written and oral submissions on count 3. She accepts that the judge was entitled to apply the sentencing guideline for the supply of drugs but submits that the sentence of 5 years and 4 months before the 25% discount for guilty plea was manifestly excessive. She submits that count 3 represented one agreement to supply a parcel of items on one occasion with no evidence that any substance was in fact conveyed into the prison. The applicant was acting under the direction of Dewar, who made all the logistical arrangements in preparation for the delivery of the items. The judge took insufficient account of the principle of totality. There was no evidence of financial gain on the applicant's part as far as this one-off transaction was concerned. 9. More generally, she submits the overall sentence ought to have been reduced to reflect the applicant's significant personal mitigation. He had been operating a highly successful dog breeding business until he was the victim of kidnap and false imprisonment. His business then collapsed so that he became involved in the supply of drugs. The applicant was, before his arrest, the primary carer of his young son. Discussion and Conclusions Counts 1 and 2 10. In relation to counts 1 and 2 the starting point for a category 3 offence where the offender has a significant role is 4 years 6 months' custody. The category range is 3 years 6 months to 7 years' custody. The judge was entitled to make an upward adjustment outside the category range to reflect the elements of a leading role. Although the judge did not mention the mitigating factors in his sentencing remarks the applicant's personal mitigation, including his family situation, could not even arguably outweigh the numerous and serious aggravating factors. These were well-organised conspiracies. They spanned a period of over 4 months. They relied on violence to enforce drug debts. They stretched from Macclesfield to Scotland. In these circumstances it is not arguable that a sentence of 8 years reduced to 6 years for plea was manifestly excessive. Count 3 11. The judge was entitled to impose a consecutive sentence on count 3 as it was a separate conspiracy. There is no sentencing guideline covering the count 3 offence but there is no challenge to the judge's decision to apply the sentencing guideline for the supply of a Class A drug, reflecting the most serious aspect of the count 3 conspiracy which was the agreement to supply crack cocaine. Applying the guideline, the judge was entitled to treat the offence as category 3, significant role. The prison context was a serious aggravating factor which plainly justified a significant upward adjustment from the starting point in the guideline. 12. Even if the guideline does not apply, the applicant had agreed to organise a supply of prohibited items including Class A drugs in a sophisticated operation using phones and bank accounts. This would have enabled him to extend his sphere of operation into the prison even if by the time of his arrest the only specific arrangement related to one parcel and even if nothing was actually brought into HMP Styal. Given the seriousness of his offence a 4-year sentence was warranted. We take into account the principle of totality but the seriousness of the applicant's offending overall leads us to conclude that a 10-year sentence was not arguably manifestly excessive or wrong in principle. 13. For these reasons, and despite Ms Collier's helpful submissions, this renewed application 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: '[2021] EWCA Crim 665' date: '2021-04-27' judges: - LORD JUSTICE BEAN - 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} ======

No: 200902151/A6 Neutral Citation Number: [2009] EWCA Crim 1773 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 3rd June 2009 B e f o r e : LORD JUSTICE RIX MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF CARDIFF (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v SHANE BOYTON - - - - - - - - - - - - - - - - - - - - - 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 J Omari appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GRIFFITH WILLIAMS: This is an application for leave to appeal against sentence which has been referred to the Full Court by the Registrar. 2. In the Crown Court at Chelmsford on 17th April the applicant pleaded guilty to an offence of conveyance of a prohibited article into prison and was sentenced by His Honour Judge Ball QC to 6 months' imprisonment. That plea of guilty had been entered at the plea and case management hearing. A concurrent sentence of imprisonment for an offence of failing to surrender to bail is not the subject of this application. 3. The facts are as follows. On 4th August 2008 the applicant was remanded in custody to HMP Chelmsford where on arrival he was searched. He was instructed as part of the search procedure to sit on the body orifice search system, which is designed to detect the presence of any metallic objects. That system indicated the presence of a metallic object and the applicant was asked to remove his clothing. When he removed his tracksuit trousers, he rolled them up and attempted to place them directly into his property box to prevent them being searched. When instructed to give them to the prison officers he said: "To be honest guv, there's a phone in there." One of the officers shook the tracksuit trousers and a mobile phone fell to the floor. 4. He pleaded guilty on a basis which reads: "I accept I had a phone in my possession when entering prison but I had forgotten it was there. It wasn't until the BOSS chain bleeped that I remembered the phone was in the pocket of my shorts, which I was wearing underneath my tracksuit bottoms. I took off my shorts and tracksuit bottoms together and as I took them off the bottom of my legs I felt my phone. I told the guards I had a phone before giving them the shorts and tracksuit bottoms." Although there was no Newton hearing, the judge clearly rejected that basis of plea because he sentenced the applicant on the basis that he was attempting to smuggle the mobile phone into prison. That decision is not criticised by Miss Omari. 5. Given the weight of the evidence and the fact that the appellant, who is 31 years old and has 48 convictions of 157 offences, the learned judge's decision is understandable. It is all the more understandable when one has regard to the fact that the appellant has served many prison sentence but, significantly, has served two prison sentences since the provisions of the Offender Management Act 2007 came into force on 1st April 2008 and so he knows full well from the notices which are displayed around prisons of the absolute of prohibition on the taking into prison of prohibited articles such as mobile telephones. 6. The grounds of appeal are that the sentence of 6 months' imprisonment, indicating a starting point of some 9 months' imprisonment was manifestly excessive, that insufficient credit was given for the guilty plea, which was made at the earliest opportunity, that insufficient consideration was given to various details of mitigation, including the applicant's response to drug treatment programmes and the fact that this was the first offence of its nature that he had committed and insufficient consideration was given to the special circumstances in relation to his medical condition. 7. In the course of her submissions, Miss Omari submitted as she did in the Crown Court that the court should have regard to the fact that there is no evidence that the mobile phone was in working order. That clearly being a relevant consideration in mitigation, it formed no part of the basis of plea to which we have referred. The mobile telephone was an exhibit and was available for inspection. In the judgment of this court, there are no grounds for concluding that the sentencing judge was wrong to proceed to sentence on the basis that this was a working mobile phone. 8. The rationale of the prohibition on the taking into prison of mobile telephones can be briefly stated by reference to a passage in the witness statement of Detective Constable Davis. That statement reads: "In summary therefore the presence of a mobile phone or a component part such as a SIM card has massive implications for not only the prison establishment but also the wider general environment. It provides a prisoner or prisoners with opportunities to communicate that they would not otherwise have and this therefore allows them to act in a way that prison is supposed to prevent them from doing. In short it undermines the security of the prison, the good order welfare of prisoners, the rehabilitation of offenders, the course of justice and the prevention and detection of crime. It is because of this that HMP CHELMSFORD seek to take positive wherever possible against any offences involving mobile phones within the establishment." 9. But for one matter, to which we will refer, in the judgment of this court, there can be no arguable ground that a starting point of 9 months' imprisonment was manifestly excessive. 10. The matter to which we consider special regard should be had is this. The applicant submitted to an adjudication process at Her Majesty's Prison Chelmsford in respect of this mobile phone. We understand that he pleaded guilty and was sentenced to seven days loss of privileges. 11. Miss Omari told us that that was a matter which was communicated to the sentencing judge in the course of her plea in mitigation. It is not a matter to which the learned judge made any reference in sentencing. In the judgment of this court, it was a matter which should have been taken into account to avoid any suggestion or possibility of double penalty. It is for that reason and that reason only that we are minded to reduce the sentence. We would approach sentence in this way. The sentence of 6 months can be equated to a sentence of 26 weeks from which one week can be deducted to arrive at a sentence of 25 weeks' imprisonment. That is the sentence that this court has in mind. We will give leave to appeal and treat the hearing of the application as the hearing of the appeal and substitute that sentence of 25 weeks for the sentence of 6 months' imprisonment. 12. LORD JUSTICE RIX: To that extent this appeal is allowed, permission having been granted. Miss Omari thank you for your assistance.

```yaml citation: '[2009] EWCA Crim 1773' date: '2009-06-03' judges: - LORD JUSTICE RIX - 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: 201704725/C2 Neutral Citation Number: [2018] EWCA Crim 105 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 23 January 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE SPENCER HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - R E G I N A v IAN JAMES MUNDY - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - Mr J Rees appeared on behalf of the Applicant Mr A Greenwood appeared on behalf of the Respondent - - - - - - - - - - - - - - - - - - - J U D G M E N T PROSECUTION APPLICATION REGARDING CONFISCATION DECISION UNDER SECTION 31 PROCEEDS OF CRIME ACT 2002 This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. LORD JUSTICE SIMON: 1. On 9 September 2008, in the Crown Court at Cardiff, the respondent, Ian Mundy, pleaded guilty to seven counts of supplying Class A drugs, cocaine (counts 1 to 7); two counts of possession of Class A drugs with intent to supply, cocaine (count 8 and 9); two counts of producing a Class C drugs, cannabis (counts 9 and 10) and one count of concealing criminal property (count 11). 2. On 30 September 2008 he was sentenced to an overall term of five years' imprisonment. 3. On 9 December 2008, in confiscation proceedings under the Proceeds of Crime Act 2002 ("POCA"), the benefit figure was assessed at £172,365 and the recoverable amount as £9,275. A confiscation order was made in the sum of £9,275 with six months to pay and a period of six months' imprisonment in default. 4. It followed that the amount of the confiscation order was determined by the available realisable assets at the time of the order. In making the order, the court, having decided that the respondent had a criminal lifestyle, concluded that he had benefited from drug trafficking and general criminal conduct. 5. The respondent paid the entire sum of £9,275 by 19 March 2009. He was released from prison on 17 December 2010 on licence and his sentence expired on 19 June 2013. The shortfall of £163,090 between the benefit figure and the assessed available sum remained outstanding. 6. At some stage in late 2016 on early 2017, it came to the Crown's attention that the equity in a property in Bridgend, which in 2008 had a negative value, now had a value of approximately £17,000, and that in addition the respondent had acquired a number of motor vehicles and had positive balances in his bank accounts. 7. On 21 February 2017 the Crown obtained a restraint order over these assets. On 26 May 2017, it made an application under section 22 of POCA for reconsideration of the amount available. That application was supported by the witness statement of Cheryl Taylor, a financial investigator accredited by the National Crime Agency, dated 10 March 2017. 8. The application was for "Reconsideration of the available amount" and for a variation of the available amount to add the sum of £29,791.77 and fix the time for payment and the time to be served in default. This sum was later amended in the light of further information. 9. Over the course of the summer the parties served documents on each other: the witness statements of Ms Taylor in support of the restraint order and the section 22 application; a response to the application and an abuse of process argument filed on the respondent's behalf on 13 July; a Crown response on 22 July; a defence application of the disclosure on 1 August; a Crown response to that application on 30 August and a final written statement for Ms Taylor dated 8 September. 10. Following these exchanges, the application came on for hearing before His Honour Judge Daniel Williams on 13 September 2017. He refused the application. The prosecution application for leave to appeal against the ruling of His Honour Judge Williams has been referred to the full court by the Registrar. 11. The relevant passages from section 22 of POCA read as follows: 22 Order made: reconsideration of available amount- (1) This section applies if- (a) a court has made a confiscation order. (b) the amount required to be paid was the amount found under section 7(2) ……… (3) In a case where this section applies the court must make the new calculation, and in doing so it must 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 references to the date of the confiscation order were to the date of the new calculation. (4) If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as- (a) it believes is just, but (b) does not exceed the amount found as the defendant’s benefit from the conduct concerned. (5) In deciding what is just the court must have regard in particular to- …….. (7) In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money. (8) The relevant amount is- (a) the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously; (b) the amount last found as the available amount in pursuance of this section, if this section has applied previously. (9) The amount found as the defendant’s benefit from the conduct concerned is- (a) the amount so found when the confiscation order was made, or (b) if one or more new calculations of the defendant’s benefit have been made under section 21 the amount found on the occasion of the last such calculation. 12. The basis for the Crown's application was the disparity between the respondent's criminal benefit and his available assets. The Crown's application was to increase the available amount in the confiscation order to £39,066.77. Allowing for the fact that the respondent had already paid £9,275; this would leave a remaining amount of £29,791.77. This was made up as follows: a Honda CBR 1,000 motorcycle, £1,980; a BMW 320D car, £1,100; a Ford Transit van, £1,440; a KTM 300 EXC motorcycle, £2,040; 100 per cent equity in 11 Brynheulog, Bridgend, £15,000; funds in a Barclays saving account, £5,817.32, funds in the Santander account, £2,414.45, a total of £29,791.77. 13. The respondent accepted ownership of the assets identified by the prosecution but disputed the valuations. In respect of the vehicles, he said that motorcycles were his hobby, one of them had been purchased with a loan which still had a substantial amount owing. The Transit van that was used by him in the course of his employment. A third party had an interest in the BMW and jointly owned in with the respondent. The vehicles were in any event damaged and the valuations were accordingly significantly lower than suggested by the Crown. The valuation of number 11 Brynheulog had been obtained from an advertisement and was not accurate. The evidential basis for the valuation was a hearsay valuation of a comparable property, the property had not been professionally valued. Furthermore, the respondent had been in possession of the property when the confiscation order was originally made. At final time it was deemed to be a property in which the respondent had no equity. He submitted that he was entitled to finality in respect of assets in his possession at the time of the confiscation proceedings. The Santander account was used for the payment of rental money from the property and which the respondent used to pay the interest-only mortgage of the property. The remaining funds were used to pay for the remaining repairs to the property and extensive repairs on the property were required. The Barclays savings account was used exclusively for the preparation of the university education of his daughter. 14. Attached to the respondent's section 22 response, were the various documents in support of his assertions as to valuation. He valued the assets at £2,561.79. 15. In the Crown's response dated 20 July, a number of concessions were made: the Honda CBR motorcycle, £1,900, not £1,980, the BMW car £200 not £1,100, the Ford Transit van £800 not £1,440, the KTM 300 EXC motorcycle, £930 not £2,040, the 100 per cent equity in the house in Bridgend, £10,000 not £15,000, funds in the Barclays saving account and the Santander account as before; the total assessed as £22,061 not £29,791.77. The valuation of the equity in the house was arrived at by deducting the outstanding mortgage of £95,000 from an expected sale price of £105,000 based on a desktop appraisal by Wilsons estate agents. 16. The Crown left it to the court to decide whether it would be unjust, on the one hand, or fair and reasonable on the other to include the funds in the Barclays savings account and the Santander account. From this it was apparent that the Crown had no positive case in relation to the either account. The respondent was put to proof that the Transit van was used for work. 17. The hearing before the judge began with Mr Greenwood for the respondent making two preliminary points. First, that the Crown’s valuation of the house was unreliable since it was based on another property and secondly, that it was simply unjust to bring the proceedings in 2017, nearly nine years after the initial confiscation hearing. 18. Counsel for the Crown, not Mr Rees, submitted that in fact the valuation figures were not substantially in issue. He was not able to develop that submission because the judge identified the principal issue as being whether it would be just to make the order. Counsel accepted that time had passed since the original hearing but submitted that the question of realisable assets was kept under review to see whether defendants come into further assets, and made the point that there was still the sum of £163,000 outstanding. The house was identified as an asset at the time but with a negative value. Since then the property had increased in value and that was the reason why the Crown were making the application. 19. In refusing the Crown's application, the judge set out the history as we have described it and noted that the assets listed in the application stood in the sum of £22,061.77. He observed that section 22(4)A of POCA required him to exercise a discretion to make a just order, not merely an obligation to avoid infringement of Article 1, Protocol 1 of the European Convention on Human Rights, the peaceful enjoyment of possessions. To this end the court could take into account all the relevant circumstances when deciding the issue, for example the amount outstanding, the additional amount that might now be available, the length of time since the original order, the impact on the offender of further payment of any further order and the legislative policy in favour of maximising the recovery from the proceeds of crime, even from legitimately acquired assets. 20. The judge then referred to a passage in Archbold (new Archbold 2018 5-782) which referred to the case of R v Padda [2014] 2 Cr App R(S) 149: The court accordingly held that even though the offender had not concealed his assets at the time of the original order, the passage of time since that order was six and a half years and he had gained the subsequent assets by hard work and legitimate enterprise, a variation under section 22 to increase the amount payable under the confiscation order in the light of the subsequently acquired assets was neither wrong in principle nor manifestly excessive, although the passage of time was important, the proper exercise of discretion must always turn on the particular facts. 21. The judge then continued: It is in respect of the particular facts of this case that I must decide whether it is just to make the order pursuant to section 22 of the 2002 Act. I have read the application and the information in support of the application to make the order. I have also read the detailed response to the section 22 application in which the explanation is provided on behalf of the defendant, firstly, to the circumstances in which he acquired the various vehicles and also the circumstances and the use to which the savings which were gathered were to be put. I have absolutely no doubt that it would not be just in these circumstances to make the order under section 22 and I decline to do so. 22. In his helpful submissions for the Crown, Mr Rees submitted that the appeal was brought under section 31(1) of POCA in relation to a confiscation order and that on such an appeal the court's powers are set out in section 32(1), the court may "confirm, quash or vary the confiscation order". Since it is an appeal under part 2 of POCA, the leave of the court is required - see section 89. He further submitted that the question for this court is whether the decision in the Crown Court is wrong. He did so by reference to CPR 42.20 and the provisions referred to there. 23. In the written grounds in support of the application, it was acknowledged that the judge referred to the legislative policy in favour of maximising the recovery of the proceeds of crime, even from legitimately acquired property. But the complaint was that he treated this simply as one factor to be held in the balance, whereas in fact it was the most important factor. The judge was wrong to conclude that the circumstances in which the respondent acquired the vehicles and the circumstances and the use to which the savings were to be put were dispositive of the issue. The question of what was just involved not merely what was just to a defendant but a broader view of the public interest. 24. In his written submissions, Mr Greenwood for the respondent submitted that there was a logically prior question that should have been addressed in the Crown Court, namely the respondent's abuse application. If the matter had proceeded to a full hearing the respondent would have applied for full disclosure and Mr Greenwood argued that this may have been a factor which the judge took into account. We have to say that we are not very much impressed by that submission. In any event, he submitted that the judge considered the papers and gave a fully reasoned ruling that it would be unjust to make an order and that finding was within the reasonable parameters of his discretion. 25. We have considered then submissions. We would make five preliminary points. First, it is clear from Padda at paragraph 49 and from the words of the statute that section 22(4)(a) of POCA establishes a discretion (the word used is "may") to vary an order by substituting for the relevant amount an amount which the court believes is "just". Logically the court will consider the question of whether it is just to make the order first. 26. Second, on the prosecutor's appeal under section 31(1) against the decision not to make a confiscation order, this court's powers are set out in section 32(1), it will either confirm, quash or vary the decision. In reaching that conclusion the court will bear in mind that it is dealing with the exercise of discretion, it is not a binary question. The Court will consider whether the decision was outside the parameters for the reasonable exercise of a discretion or whether the judge erred in his approach to the question implicit in section 22(4). 27. Third, the passage of time may be relevant to the exercise of the discretion to reconsider the available amount but there is no express time limit as there is for example in the reconsideration of a benefit (see section 21(1)(d), six years from the date of the order). In Padda the order under section 22(4) was made six years later and in the case of In Re Peacock (Secretary of State for the Home Department) [2012] UKSC 5 it was ten years later. 28. Fourth, an assessment of an amount which is "just", extends beyond what is just to a defendant. In Leon John [2014] 2 Cr App R(S) 73, it was held that an award of general damages for personal injuries, made after the initial hearing, was an amount available for the purposes of section 22. Equally, the fact that the available amounts may have been acquired by hard work in a legitimate enterprise does not preclude an order, although that fact is a matter to be taken into account (see Padda at [47]). The word "just" means just in all the circumstances, bearing in mind that the purpose of such orders is the advancement of the public interest in confiscating the proceeds of crime. 29. Fifth, in Leon John at 24, the court said this: We do wish to stress that it is important for judges when determining applications under section 22 of POCA to assess carefully in each case the competing considerations in order to decide what course is truly just. In cases such as the present, not involving a 'windfall' gain the consideration should be particularly anxious. 30. In the present case, the judge held that it would not be just to make the order but his reasoning was so abbreviated that it is hard to see on what basis he reached that conclusion other than that he accepted everything said about the assets in the respondent's statement and rejected everything that was said by the Crown beyond what it had conceded, without inviting any sort of comment on its behalf. 31. However, the fact remains that in view of the concessions made by the Crown, the sums involved were modest. In relation to the value of the house, there was an issue but it was confined to approximately £10,000 which was itself hotly contested on the basis by which that sum had been calculated. There may well be cases where a house appreciates significantly over nine years in the light of market changes but this was not such a case, or at least not strikingly so. There were two bank accounts, one of which (the saver account) was said to be for the respondent's daughter's education. In relation to both these accounts the Crown was prepared to leave it to the judge to decide whether it was unjust to include the sums in the new assessment. Finally, there were two motor bikes and two cars of less value than the prosecution initially thought. 32. If the judge had gone through the list and given brief reasons for rejecting each element in it, and if he had added that there must be an element of proportionality in the disposition of court resources, then we doubt there could have been any proper basis for challenging the order. Judges are entitled summarily to dismiss applications that they regard as being substantially without merit, but the Crown had spent considerable time and effort preparing for the application and both it and the public were entitled to know why the judge rejected the application. 33. However, having considered the material ourselves, we have concluded that it was open to the judge on the material before him to decline to vary the order. In these circumstances, although we consider the judge's reasoning should have been fuller, we consider that the decision was properly open to him on the facts. Accordingly, we grant leave but confirm the decision and dismiss the appeal.

```yaml citation: '[2018] EWCA Crim 105' date: '2018-01-23' judges: - LORD JUSTICE SIMON - MR JUSTICE SPENCER - HIS HONOUR JUDGE PICTON ```

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 1461 No: 201800322/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 7 August 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GOSS MR JUSTICE KNOWLES R E G I N A v MARK ANTHONY JACKSON 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. Non-Counsel Application J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: In January 2012, after a trial in the Crown Court at Sheffield before McCombe J (as he then was) and a jury, this applicant and three others were convicted of the murder of Adam Vincent. The applicant was also convicted of conspiracy to pervert the course of justice. He was acquitted of a charge alleging conspiracy to supply controlled drugs of class A. 2. He was sentenced for the offence of murder to life imprisonment with a minimum term of 29 years. A concurrent sentence of eight years' imprisonment was imposed for the other offence. 3. No appeal against conviction was brought at the time, although the applicant did bring an appeal against sentence which succeeded to the extent that his minimum term was reduced to 25 years. 4. In January 2018 he lodged an application for an extension of time of nearly six years to apply for leave to appeal against his conviction for murder, relying on the decision of the Supreme Court in R v Jogee [2016] UKSC 8 . His application was refused by the single judge. It is now renewed to the full court. 5. The deceased was 33 years old at the date of his death. He was addicted to drugs. He had lived in the same house as the applicant and the other accused. The cause of his death was blunt force trauma to his head. The evidence of a pathologist was that the deceased had been struck with severe force at least three times with a weapon such as an axe or golf club to the head. He had sustained other head and facial injuries, and also broken ribs and contusion to the spleen, probably caused by stamping. Five pellet shot wounds were found which had been inflicted with an air rifle. 6. The prosecution case was that all of the accused had been engaged in the supply of drugs, specifically heroin, and that they had jointly murdered the deceased as part of a joint enterprise to silence him and/or as revenge for their belief that he had provided assistance to the police resulting in the accused being arrested and/or had stolen money or drugs from them. The prosecution case was that the deceased had been subjected to violence and physical abuse, behind the closed doors of the house in which they were all living, for a period of about two weeks before he died. His body was then taken to another location where it was dismembered and the parts disposed of in an attempt to conceal the crime. Two particular vehicles, a Ford Escort and a van had been respectively purchased and hired by some of the accused to assist in disposing of the body. 7. It is unnecessary for present purposes to go into the details of the evidence against this applicant. It is sufficient to say that a number of witnesses gave evidence of things said to them by the applicant which plainly implicated him in the killing of the deceased. There was undoubtedly evidence on which the jury could properly convict if they were satisfied so as to be sure that the evidence was truthful, accurate and reliable. It is to be noted that no submission of no case to answer was or could be made. Neither the applicant nor any of his co-accused gave evidence. 8. In his directions of law to the jury, the learned judge emphasised the need for them to give separate consideration to each of the accused and to each of the different charges. He explained in conventional terms that two or more persons may commit an offence jointly. At page 8A to C of the transcript, he said this: i. "You must ... carefully examine the evidence against and for each defendant separately on this charge and must consider whether or not the prosecution has, indeed, made you sure that the defendant intended to kill or seriously to injure Mr Vincent and that he took some part in the carrying out of that intention either directly by assisting or encouraging the others. If you are not sure of that in the case of any individual defendant, you will acquit that defendant on the charge of murder." 9. In the light of the law as it stood at the time of the trial, the judge went on to add that the direction just quoted was subject to a further point which he explained as follows: i. "As I have said, participation in or encouragement of the fatal attack upon Mr Vincent with the intention to kill or to cause him really serious bodily injury are the elements of the offence of murder in the case of an alleged joint enterprise offence. If you are sure that the defendant whom you are considering participated or encouraged such an attack with the intention that Mr Vincent should be killed, then he is guilty of murder. If you are not sure that the defendant intended that Mr Vincent should be killed but only that he should be really seriously injured, you must ask yourselves whether the use of a lethal instrument -- such as an axe or other heavy, blunt object, such as the head of a golf club -- of the type that you may think inflicted fatal blows was within the scope of the criminal enterprise in which he took part." 10. The judge later summarised his directions by saying at page 9E: i. "So your approach to the matter in respect of each of the five defendants to the murder charge in turn is this: 'Are we sure that this defendant took some part in the fatal attack on Mr Vincent either by: (1) himself unlawfully assaulting Mr Vincent and causing him fatal injuries, intending to kill him or cause him really serious bodily injury; or (2) participating in some way with another or others in a deliberate plan to kill and that Mr Vincent was killed as a result; or (3) participated in a deliberate plan to assault Mr Vincent in which this defendant intended to cause him really serious harm and that Mr Vincent was killed as a result, subject, again, to the one point?' If you sure of any of these three alternatives in respect of any individual defendant, then, subject to this next point, that defendant is guilty of murder." 11. Towards the end of his summing-up, the judge provided the jury with a written route to verdict consistent with the directions which he had given. 12. In his applications for an extension of time and for leave to appeal against conviction, the applicant makes clear that he was advised at the time of his trial that he had no grounds of appeal against conviction. He says however that the law relating to joint enterprise has now been redefined by the Supreme Court in Jogee . In his grounds of appeal, he says: i. "I believe that if I had been tried under the law as it now stands I would not have been convicted. This is on the grounds that there is no evidence that I was present at the time of Adam Vincent's death or that I participated in any way which directly led to his death or that I offered any assistance or encouragement knowing that this might lead to his death. ii. The prosecution put its case saying that I was jointly involved in the drugs and in the murder of Adam Vincent. The not guilty verdict to the drugs charge demonstrates that I was not nearly so heavily involved as they suggested. iii. In the judge's sentencing remarks he found that there was no intention to murder, just to inflict grievous bodily harm and that the motivation for that was the perceived need to exact retribution from Mr Vincent for having damaged the gang's interests and to enforce primitive discipline within it. The jury verdict takes away any motive which the prosecution say I had to punish Adam Vincent." 13. The applicant relies on essentially the same points as being exceptional circumstances justifying the grant of leave to appeal so long out of time. The need for that long extension of time arises, he submits, simply because the appeal is based on a comparatively recent development in the law. 14. The applications are opposed by the Crown in a Respondent's Notice which submits that Jogee does not assist the applicant in the circumstances of this case. 15. The court in Jogee considered cases of what had become known as parasitic accessory liability. In a series of decisions, including the decisions of the House of Lords in Powell, English and Daniels [1999] 1 AC 1 and Rahman [2008] UKHL 45 , it had been held that if D1 and D2 agreed to commit crime A, and in the course of that joint enterprise D1 commits a different crime B, D2 is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. The case law had however recognised an exception to this principle where offence B involved a "fundamental departure" from what had been agreed in relation to offence A. It was in that context that in cases of murder issues arose as to whether D1 had unexpectedly used a much more dangerous weapon than anything which D2 had foreseen as a possibility. Hence the direction which McCombe J gave in this case as to foresight of the possibility that a deadly weapon might be used. 16. In Jogee it was held that the law had previously taken a wrong turning. Although foresight of what might happen could be evidence from which a jury might infer the necessary intention, it could not be the test for the mental element of secondary participation in murder. Murder requires an intention to kill or to cause really serious injury and a secondary party must intend to assist the principal to act with such intent. It will generally be sufficient if the secondary party himself intends to kill or to cause really serious injury. In the light of this restatement of the principles, the Supreme Court indicated that questions of "fundamental departure" will rarely arise for consideration. 17. The Supreme Court went on to state at paragraph 100 that where a court had correctly applied the law as it previously stood, exceptional leave must be sought to appeal out of time against conviction and exceptional leave will only be granted if there would otherwise be a substantial injustice. 18. In Johnson [2016] EWCA Crim. 1613, the Court of Appeal stated that it is for the applicant to demonstrate substantial injustice, which is a high threshold. At paragraph 21 the court said: i. "In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult." 19. In the passages which we have quoted from the learned judge's summing-up, he repeatedly emphasised the need for the jury to be sure that a defendant intended to kill or to cause really serious injury. His direction relating to the use of a heavy weapon was set in the context of the jury being sure that a defendant intended at least to cause really serious injury. The jury's verdicts therefore show that they were sure that the applicant himself intended that the deceased should be killed or seriously injured. The decision in Jogee cannot assist a defendant who has been convicted on that basis. 20. The applicant's submission that there was no evidence that he was present when the deceased met his death cannot assist him either. As a matter of law, his guilt did not depend on whether or not he was present at that time. 21. The applicant submits, as we have said, that he had no motive to harm the deceased and that there was no evidence sufficient to prove that he participated in the killing. But those were issues which the jury had to consider at trial and which they resolved against the applicant. There is, in our judgment, no basis for saying that the jury would have reached any different decision if they had been directed in accordance with Jogee . The only difference would be that if the jury were sure, as they must have been, that the applicant assisted or encouraged the killing of the deceased with the intent that he be killed or seriously injured, then questions as to whether he foresaw the use of a particular type of weapon would be irrelevant. In short, the only effect of Jogee would be to make the applicant's case weaker not stronger. 22. We are therefore satisfied that there is no arguable ground for granting exceptional leave to appeal out of time. The renewed application accordingly fails and is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2019] EWCA Crim 1461' date: '2019-08-07' judges: - LORD JUSTICE HOLROYDE - MR JUSTICE GOSS - MR JUSTICE KNOWLES ```

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Neutral Citation Number: [2018] EWCA Crim 478 No: 201703929 C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 1 March 2018 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE SWEENEY MR JUSTICE WILLIAM DAVIS R E G I N A v GERARD PHILIPPE ANDRE SINGER Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 190 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) Mr R Keogh appeared on behalf of the Appellant Mr D Wilson appeared on behalf of the Crown J U D G M E N T (Approved) If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. MR JUSTICE SWEENEY: This is an appeal against sentence by leave of the single judge. 2. On 11 July 2016, at the conclusion of his trial before His Honour Judge Levett in the Crown Court at Ipswich, the appellant, who is now aged 71, was convicted of 27 sexual offences in relation to seven male victims who were aged between 9 and 13 at the time of the offending. On 9 September 2016, the judge sentenced the appellant, for 26 of the offences, to determinate terms of imprisonment totalling 19 years. On Count 24, an offence of assault with intent to commit buggery, he imposed a consecutive extended sentence of ten years' imprisonment, comprised of a two-year custodial term and an extended licence period of eight years. The appellant was also made the subject of an indefinite Sexual Harm Prevention Order and was automatically subject to statutory notification and barring requirements. 3. There are two grounds of appeal, namely that: (1) an extended sentence was not necessary or appropriate, having regard to the age of the appellant and the combined effect of the length of the sentence, the imposition of the Sexual Harm Prevention Order and the statutory barring order; (2) irrespective of the merits of the finding of dangerousness, the imposition of the extended sentence on Count 24 was unlawful. The respondent concedes that, as imposed, the sentence on Count 24 was indeed unlawful, because the custodial element of the sentence was less than four years, but submits that if an extended sentence was otherwise appropriate, that can be remedied in a number of ways. 4. The provisions of the Sexual Offences (Amendment) Act 1992 apply. No matter relating to any of the victims shall be published in their lifetime if it is likely to lead to their identification as such. We have anonymised our judgment accordingly. 5. The facts of the offences are appalling. Between 1978 and 1981, when he was in his early to mid-30s, the appellant, who is a French national, was employed as a modern language teacher at St George's School in East Anglia. It was a boarding school for boys aged between 9 and 13 and principally catered for those whose parents were in the armed forces. During the appellant's years at the school, the headmaster was a man called Derek Slade, who was a prolific abuser, both physical and sexual, of the boys in his care - employing institutionalised brutality and horrendous physical abuse to ensure that the victims were too frightened to complain. In that, he was joined by two other teachers, Alan Brigden and Alan Williams. 6. The appellant, in deliberate contrast, presented himself to the boys as informal, attentive and kind. But that behaviour was in fact, and in gross breach of trust, nothing other than grooming them for his sexual pleasure. At times the appellant used drugs to subdue victims into performing sexual acts on him or to receive sexual abuse from him. Oftentimes, the abuse would take place with multiple boys present inside the appellant's rooms at the school. At other times he would isolate his victims, inviting them to his room alone. At times the appellant also watched and engaged in sexually abusing pupils with the headteacher. That included an incident involving an 11 year-old boy first performing oral sex on the appellant and then immediately afterwards on the headmaster. Victims were told not to say anything and were too frightened to do so. 7. Counts 1, 2 and 3B involved the victim FD, aged 12, and mutual oral sex, oral sex on the victim, and multiple touching. 8. Counts 4 and 5 involved the victim GD, aged 10 or 11, and involved kissing and performing oral sex on him. 9. Counts 6 to 9 involved the victim MS, aged 10 or 11, and included masturbating him, masturbating another boy in his presence, and masturbating both the victim and another boy at the same time. 10. Counts 10 to 13 involved the victim MH, aged 10 or 11, and kissing, oral sex on the victim, and fondling his genitals and penis. 11. Counts 14 to 16 involved the victim GH, aged 12 to 13, and included inciting him to masturbate the appellant, and the appellant then putting his penis in the victim's mouth; touching the victim whilst masturbating himself; and telling the victim to take a pill which rendered the victim unconscious, after which he woke up to find that he was being anally raped in the presence of a third person. When the victim screamed in pain he was told to shut up, and was slapped by the appellant to stop him screaming any further. 12. Count 17 involved the victim MW, aged 11 or 13, whose genitals the appellant touched. 13. Counts 18 to 22, 22A and 23 to 25 involved the victim PC, aged 9 or 10, who was incited to perform oral sex on the appellant on a number of occasions; was masturbated by the appellant on a number of occasions; was buggered on one occasion after he had been sexually abused first by the headmaster; and on another occasion, was drugged by the appellant and another, tied to a bed whilst unconscious and buggered again. 14. Finally, Counts 26 & 27 involved the victim GR, who was kissed and had his penis touched and fondled. 15. There was also evidence, which the judge found to be true, of sexual misconduct with other boys, including A, in the holidays outside England. Whilst that did not form the basis of any charge, the judge did, as he was entitled to, take it into account when deciding whether the appellant was a dangerous offender. 16. The appellant's offending at the school came to an end in November 1981, when an allegation was made against him and he left the school abruptly. The appellant next surfaced in 1998, when he was convicted at the St Omer Criminal Court in France of offences of sexual aggression on minors under 15 by a person in a position of power. That offending occurred in 1994, 1996 and 1997. In consequence of his conviction the appellant was sentenced to a term of imprisonment. In 2009, following complaints in relation to his conduct at St George's School, efforts began to extradite the appellant from France. They were eventually successful in December 2015. 17. Passing sentence, the judge observed that the appellant's victims had been uniquely vulnerable. They were children who were apart from their families who had been sent, often from overseas, to St George's in the hope and trust that they would have stability in their education and upbringing. However, said the judge, it was clear from the victim impact statements that the appellant's crimes had destroyed both childhoods and families, some seemingly beyond repair, and that the victims, now men in their 40s, some with young families of their own, were put through further trauma by having to relive their experiences at trial. 18. The appellant's crimes, said the judge, had had far-reaching consequences for the victims' outlooks and their relationships in adulthood. They had had difficulty trusting, difficulty with managing anger, and many had had to turn to drink or drugs as a way to cope with what had happened to them as children. For a number of them however, the court process, although unimaginably difficult, had been a cathartic experience. They had been listened to and they had been believed, when the appellant and others like him had gone to such lengths to make them think that they never would be. 19. As to dangerousness, the judge observed that the offences of which the appellant had been convicted, both in this country and in France, involved boys aged between 9 and 14, each in the context of the appellant being a teacher at their school and in a position of authority and trust. The offences demonstrated, said the judge, that the appellant had a predatory nature to select the more vulnerable, the more isolated, and possibly more meek and mild amongst the boys in his care. The appellant had failed, said the judge, to demonstrate any recognition or atonement for what he had done, and the author of the pre-sentence report had concluded that the appellant had an entrenched sexual interest in young boys and that he would continue to seek out opportunities to offend. Indeed that, without interventions, his behaviour was unlikely to change, such that he posed a high risk of serious harm to young boys by the commission of further specified offences against them. 20. It was against that background that the judge concluded that the appellant was a dangerous offender and imposed the sentences to which we have referred. 21. In imposing those sentences, the judge remarked that the appellant would serve at least two thirds of the overall term of 21 years, at which point his sentence would be referred to the Parole Board who would consider when it was safe to release him, if at all, before the expiry of the full term, which would be followed by the extended licence period. That was clearly in error, as the effect of the sentence actually imposed was that the appellant would serve half of the determinate sentence of nineteen years, after which he would serve the custodial element of the extended sentence and be released no more than two years later, followed by the extended licence period. 22. That brings us to the grounds of appeal. On behalf of the applicant, Mr Keogh questions whether the judge was entitled to conclude that the appellant was a dangerous offender, given his age, both now and at the likely time of his release, the existence of the Sexual Harm Prevention Order and the statutory safeguards imposed consequent on his offending. In particular, Mr Keogh points out that the earliest point at which the appellant would be likely to be released would be when aged 80 or more, that that would be on licence, and that in those circumstances it would be highly unlikely that he would present any danger. 23. In any event, Mr Keogh submits that the judge should have exercised his undoubted discretion not to impose an extended sentence and imposed a determinate sentence instead. In so doing, Mr Keogh recognised that absent an extended sentence, but under the provisions of section 236 A of the Criminal Justice Act 2003 , the court would be bound to impose a special sentence in relation to one or more of Counts 1, 16, 18, 23 and 25. The effect of a special sentence is that at the halfway point the offender becomes eligible for consideration of release by the Parole Board, but will not be released unless and until the Parole Board concludes that it is safe for him to be released prior to the end of his overall term. If the Parole Board takes the view that the risk is too great, then the offender will serve the whole of the custodial term, followed by the compulsory year on licence. 24. As to ground 2, and as we have already touched on, we must in any event correct the unlawful sentence imposed on Count 24, but we cannot increase the overall term imposed by the judge, with whom we have every sympathy in what was a difficult sentencing exercise, in relation to which his overall approach was otherwise entirely laudable. 25. Finally, on the appellant's behalf, Mr Keogh stresses that the appellant will have to serve his sentence in this country, and thus a country that is foreign to him. He cannot be repatriated for the purposes of serving his sentence. 26. We have no doubt at all that the judge was right to conclude that the appellant is a dangerous offender. Any other conclusion would have been perverse. That conclusion results in a discretion as to whether to impose an extended sentence or a special sentence. As we have touched on already, given the appellant's age before he can even be considered for parole, the imposition of the Sexual Harm Prevention Order and the automatic application, in particular, of the statutory barring order, it seems to us that a special sentence is more appropriate. 27. We propose to achieve that by quashing the sentences imposed on Counts 24 and 25 and by substituting on Count 24 a determinate sentence of two years' imprisonment concurrent, and on Count 25 a special sentence of 21 years' imprisonment with an additional licence period of one year. The overall effect of the sentence which this court has imposed is therefore broadly similar to, but not more than, that of the sentences that the judge imposed. 28. To that very limited extent, this appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2018] EWCA Crim 478' date: '2018-03-01' judges: - LORD JUSTICE HOLROYDE - MR JUSTICE SWEENEY - MR JUSTICE WILLIAM DAVIS ```

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Case No: 201306115 B5 Neutral Citation Number: [2015] EWCA Crim 353 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BASILDON CROWN COURT His Honour Judge Graham T20137099 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/03/2015 Before : LORD JUSTICE McCOMBE MR JUSTICE NICOL and HIS HONOUR JUDGE KRAMER QC (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : ANTHONY MILES Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Stephen Rose (instructed by Whiskers LLP ) for the Appellant Mr Christopher Paxton (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 20 February 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice McCombe: (A) Introduction 1. On 1 November 2013 in the Crown Court at Basildon, after a trial before HHJ Graham and a jury, the appellant was convicted of four offences of sexual assault on a child (counts 1, 11, 12 and 13 on the indictment), two offences of rape of a child under 13 (counts 2 and 7), one offence of rape (count 3), three offences of assault by penetration (counts 4, 5, and 9), two offences of sexual assault (counts 8 and 10) and one offence of taking indecent photographs of children (count 15). He was acquitted of one charge of anal rape (count 6) and one charge of exposure (count 14). 2. On 25 November 2013 he was sentenced by the learned judge to terms of 4 years imprisonment on each of the counts of sexual assault on a child to be served concurrently, 15 years imprisonment (again to be served concurrently) for each of the offences of rape of a child under 13, 8 years imprisonment (concurrent) for each of the offences of assault by penetration, 4 years imprisonment (concurrent) for each offence of sexual assault and 1 year’s imprisonment (concurrent) for taking indecent photographs. That gave rise to a total sentence of 15 years imprisonment. A Sexual Offences Prevention Order was imposed for a period 18 years. 3. He now appeals against conviction by leave of the Full Court, which gave such leave on limited grounds. (B) Background Facts and the cases of the Crown and Defence 4. The persons against whom the offences were alleged to have been perpetrated were two girls, whom we shall call “X” and “Y”. The appellant had married the girls’ mother C in 2005. The offending in respect of X was alleged to have occurred between December 2008 and May 2012, when X was aged between 11 or 12 and 14 or 15 years old. These matters were the subject of counts 1 to 10 on the indictment. The charges in respect of Y were said to have occurred between April and June 2012 when Y was 12 years old (counts 11 to 14). 5. In June 2012 X said to a school friend that she had been raped by the appellant. That friend told her mother and the matter was reported to the girls’ school and from there to the police. The appellant was arrested and his mobile telephone was seized. On that telephone there were 14 photographs which the Crown alleged were indecent (count 15). Four of the photographs were of X’s exposed breasts. The other ten photographs included images of X naked. Others showed her with her legs apart and her underwear exposed. There were further photos of Y naked in the bath and some pictures of another younger sister (not the subject of any other charges) with legs apart and her underwear exposed. 6. Apart from founding the subject of count 15, the Crown relied upon the photographs as establishing that the appellant took a sexual interest in young girls, but for no other purpose. 7. The defence case was that the sexual activity alleged had not occurred; the photographs had not been taken by the appellant and, in any event, they were not indecent. He was a man of good character hitherto. 8. It is not necessary to say a great deal about the detailed evidence given by X and Y, having regard to the nature of the grounds of appeal. We do so only, for the sake of completeness, to give an overview of the nature of the allegations underlying the bare statement of the charges which we have already set out. 9. X said that the abuse of which she complained occurred at home when her mother was out at work; that was about two or three nights a week. Count 1 alleged oral sex performed by the appellant on her. Count 2 was an allegation of penetration of X’s mouth by the appellant’s penis. The first vaginal rape was said to have occurred when X was 13 years old; she said that it occurred on more than two occasions, the most recent (count 7) being about a month before she reported the matter to her friend in June 2012. The assaults by penetration were said to have consisted of insertion by the appellant of his finger into X’s vagina. One such occasion was in June 2012 when she was taking a bath. On another occasion, X alleged, the appellant penetrated her vagina with a vibrator. The most recent act alleged was the appellant touching her breasts over clothing the day before she was interviewed by the police. She also gave evidence of the appellant taking her photograph on his telephone. X said that she had not reported the events for some time because of threats made by the appellant and her fear of splitting the family. 10. Y’s allegations were of an incident on 1 June 2012 when she said the appellant had touched her vagina, inside and outside her clothing after he had helped her do her hair and before she went to bed. She spoke of other occasions where similar acts had taken place. Y said the appellant had not threatened her but she was worried about the effect any report would have on the family. 11. X’s school friend gave evidence of X’s complaint to her. At first she (the friend) had not believed what she was told. However, she said that it was repeated about two weeks later and she said that X had asked her not to report it because it would ruin X’s family. She said that she had in the end told her own mother who reported the matter to the school. 12. The appellant did not give evidence at the trial, but a number of character references were read to the jury from others stating that the writers had had no concerns when the appellant was with their children. 13. The defence applied to exclude evidence of 10 of the 14 photographs obtained from the appellant’s telephone. Those were the images other than the ones depicting X’s exposed breasts. It was argued that the other photographs were incapable of being indecent and that, in any event, there was no evidence that the appellant had taken them, other than from their presence on his telephone. It was submitted that the photographs would have an unfairly prejudicial effect on the proceedings. 14. The judge refused the application and admitted the images, on the basis that they were capable of being indecent at the lowest level of the categories identified in Oliver [2002] EWCA Crim. 2766 . He held that the photographs were evidence “to do with the alleged facts of the offence with which the defendant is charged” within the meaning of section 98 of the Criminal Justice Act 2003 and were not, therefore, “bad character” evidence for the other purposes of the Act. He tentatively expressed the view that they were also admissible as evidence to correct any false impression that only four photographs of young girls had been found. On the basis that the jury found the photographs to be indecent the judge said they would be “admissible as evidence of propensity in showing a sexual interest in young girls”, which was indeed the Crown’s case. However, the judge’s subsequent direction to the jury on this point went somewhat further than that and that direction forms one of the grounds of appeal before us. We return to it below. (C) The Grounds of Appeal 15. With leave of the Full Court, the appellant (through Mr Rose of counsel, who appears for the appellant, as he did at trial) argues that the convictions are unsafe on two grounds. First, it is submitted that the judge erred in not excluding the ten photographs from the evidence, as being incapable of being held to be indecent. Secondly, it is argued that the judge erred in his direction to the jury as to the relevance of the photographs to the other charges on the indictment. As at trial, Mr Paxton appears for the Crown. At the conclusion of the hearing we complimented counsel on their able submissions and we do so again in this reserved judgment. 16. We take the grounds in the order set out above. 1) Admissibility of the 10 photographs/were they capable of being found to be “indecent”. 17. Mr Rose first refers us to a number of features of the background to the photographs recovered. All the images had been deleted and were inaccessible thereafter to the user of the ‘phone; 178 images, still on the memory card, were innocuous family photographs; hundreds of other innocuous photographs had also been deleted; three adult pornographic films were found which were not alleged to be unlawful; the ‘phone was not “pin-locked” on analysis. Further, there was no child pornography on the family computer and no evidence of searches for such material on that computer. The evidence as to the appellant taking the photographs in issue was merely circumstantial and derived only from the fact of their having been taken with his ‘phone. 18. Mr Rose relies upon the cases of Oliver (supra) and Dodd [2013] EWCA Crim 660 for the proposition that none of the photographs here in issue were capable of being regarded as indecent. He argues that the photographs of Y in the bath were classic examples of naked children in a legitimate setting and that the others appear to have been taken surreptitiously, which is inconsistent with erotic posing, which Mr Rose seeks to identify as a sine qua non of indecency for the purpose of the offences charged. 19. With respect to these arguments, we do not think that the cases cited were intended to re-define how questions of indecency were to be determined in jury trials. As set out in the current edition of Archbold at paragraph 31-108a p. 2937, “…the jury must consider two questions: (a) is it proved that the defendant deliberately and intentionally took the photograph and (b) if so, is it indecent? In deciding (b) the jury have to apply the test stated in R v Stamford [1972] 2 QB 391 at 398…of applying the recognised standards of propriety (… while the jury are representative of the public, it remains essential that they consider the question of indecency by reference to an objective test, rather than applying their subjective views to the matter)” 20. In Oliver the court was concerned to examine the Sentencing Advisory Panel’s advice on sentencing for offences relating to obscene photographs of children. The Panel’s advice had been supported by research from a project known as “the COPINE Project”. The court accepted that the Panel’s adoption of some of the categories of image indentified by the Project were appropriate definitions of levels of indecency for sentencing purposes, but the adoption of other categories were not. 21. In Dodd , which was an appeal against conviction by a jury of offences arising from the downloading of allegedly indecent images, the point in issue was that the jury had been given in their bundle of documents a summary of the photographs in issue which included the assertion that the images were “Level 1” and a schedule of six photographs on which each was described as “Level 1 seriousness”. There was a further document put before them purporting to be the “COPINE scale” and another headed “RESTRICTED MATERIAL. Explanation of the COPINE Categories”. Finally, there was a summary of each of the exhibits, beginning with the words “Level 1 image”. 22. All this material, in the Dodd case, had the tendency to give the jury the impression that the images in issue were indecent at Level 1 as a matter of law and so withdrew from them the question of whether the images were indecent as alleged. The court was critical of the form in which the commentaries on the images had got before the jury in the manner in which they did. Further, the material produced allowed the police’s opinion as to indecency to go before the jury. In this context, Hallett LJ, giving the judgment of the court in that case, said (in paragraph 24), “…most importantly, as far as the criminal justice system is concerned there is at present only one scale of indecency, the Oliver scale. If, therefore, the level referred to in the indictment was, as prosecution counsel asserted, and the judge endorsed, level 1 on the COPINE scale, they were plainly wrong. In so far, therefore, as the prosecuting advocate may have left the jury with the impression that they could get guidance on what constituted an indecent photograph from the COPINE scale, they were in significant error”. 23. Mr Rose argues that this means that it was for the court to assess whether the images here in question fell within one or more of the categories identified in the Oliver case. Obviously, in a clear case, the images may not surmount the obstacle of being capable of sustaining a conviction if left to a jury properly directed. However, in our judgment, of more importance for the conduct of jury trials was what Hallett LJ said in the final sentence of the preceding paragraph (paragraph 23), namely: “It is for the jury to decide whether an image is indecent and only if the jury return a verdict of guilty is the level of seriousness of image relevant to the issue of sentence”. 24. In our judgment, Mr Rose’s submission that the images in this case failed as a matter of law to amount to indecent photographs makes the same error as the Crown made in Dodd , namely it seeks to remove from the jury their important function which is to determine the question of whether the images in issue are indecent or not. That question is to be decided by them and not by any pre-conceived categorisation of images into various levels, which is only useful for sentencing purposes once the jury have convicted the accused. 25. The judge directed the jury on the issue of indecency which they had to decide in the following terms (Summing-up Transcript pp.6C – 7A): “Let me say a few words about how you approach the question of whether they were indecent. I’ve put down there the basic legal formula, which is that “indecent” means contravening the standards of decency of ordinary and right-thinking people. So it is, if you like, an objective standard. It’s not just what you individually thought of those photographs. It’s a wider question of what would a right-thinking person think of those photographs. Would a right-thinking person think that those were indecent photographs? The test applies to the photographs themselves. So, for example, the intention of the photographer is irrelevant; whether they were taken covertly is irrelevant. In cases on photographs that have been considered by the Court of Appeal they have said that indecency or indecent photographs do not include for example nakedness in a legitimate setting, so a child on a beach. Similarly, to underline that, the surreptitious procuring of an image does not make it indecent. You have got to consider what the picture actually shows. Another way of putting it is: are these or are any of them a picture depicting an erotic image of a child, albeit with no actual sexual activity? So it is very much a live issue, an issue for you to consider. In our judgment, that direction is entirely satisfactory and left before the jury the proper question. 26. We would add that we asked Mr Rose whether he was inviting us to examine the photographs so as to make an assessment different to that reached by the judge as to whether the images were capable of being “indecent”. He said he was not asking us to do that. In such circumstances, it is impossible for this court to “second-guess” the judge’s view on the question of whether the issue of “indecency” should be left to the jury. 27. In our judgment, the photographs were properly admitted in evidence and it was for the jury to determine whether they or any of them were indecent or not. We reject the first ground of appeal. 2) The judge’s direction on the relevance of the photographs to the other charges 28. The direction in issue appears at pp. 8F-10A of the summing up, the contentious passage being at p.9A-C. It is as follows, with the passage in issue in our italics: “Now, the other matter is the effect of count 15 in relation to the other counts. A similar kind of principle applies to count 15, but the essential starting point before count 15 can have any influence on the other counts is that you would have to be sure that the defendant was guilty on count 15, in other words of those elements that he took the photographs and that the photographs were indecent. If you’re not sure of either of those elements, then count 15 cannot be used in any way in relation to any other count. So if you are sure that he took the photographs and that they are indecent photographs, then the prosecution argue that this evidence is relevant, because it establishes that the defendant has a propensity or a strong tendency to commit offences of the type with which you are concerned; that is, offences of a sexual nature directed towards young girls and these young girls in particular. If you agree with that, then the prosecution suggests it makes it more likely that the defendant committed the other offences on the indictment. ” The defence submit that even if he did take these photographs and even if they are indecent photographs, the other allegations are substantially different in character from the taking of photographs in that they involve actual physical sexual abuse. It is therefore for you to decide between those two competing arguments and decide whether count 15 does establish a strong tendency towards committing sexual offences against young girls. If it does establish that propensity, it is a matter for you to judge how far that assists you to resolve the question whether the defendant acted as alleged on the other occasions. Evidence of this sort of behaviour, other behaviour than the actual count you are considering, can only ever be part of the evidence in the case and its importance should not be exaggerated. It does not follow that just because a defendant behaved in a certain way on some occasions he did so on other occasions. Bad behaviour in taking those photographs, if that’s what you find, and taking indecent photographs, if that’s what you find, cannot alone prove guilt in relation to the other allegations on this indictment.” 29. As already mentioned, the Crown never contended that the photographs were relevant to show any propensity to commit sexual offences on young girls, only that they might show that the appellant had a sexual interest in young girls. 30. For the appellant, Mr Rose submits that this was a misdirection which renders the convictions unsafe. In this regard, he refers us to this court’s decision in R v D, P and U [2012] 1 Cr. App. R at page 97, a case involving the question whether evidence of possession of indecent photographs of children were admissible in evidence on charges of physical sexual abuse . In particular, he pointed our attention to paragraphs 6 and 7 of the court’s judgment, given by Hughes LJ (Vice President) (as he then was) where one finds this: “6. Evidence that a defendant collects or views child pornography is of course by itself evidence of the commission of a criminal offence. That offence is not itself one involving sexual assault or abuse or indeed any sexual activity which is prohibited. It is obvious that it does not necessarily follow that a person who enjoys viewing such pictures will act out in real life the kind of activity which is depicted in them by abusing children. It follows that the evidence of possession of such photographs is not evidence that the defendant has demonstrated a practice of committing offences of sexual abuse or assault. That, however, is not the question for the purposes of gateway (d). The question under gateway (d) is whether the evidence is relevant to an important matter in issue between the defence and the Crown. Is it relevant to demonstrate that the defendant has exhibited a sexual interest in children? 7. It seems to us that this is a commonsense question which must receive a commonsense answer. The commonsense answer is that such evidence can indeed be relevant. A sexual interest in small children or pre-pubescent girls or boys is a relatively unusual character trait. It may not be quite as unusual as it ought to be, but it is certainly not the norm. The case against a defendant who is charged with sexual abuse of children is that he has such an interest or character trait and then, additionally, that he has translated the interest into active abuse of a child. The evidence of his interest tends to prove the first part of the case. In ordinary language to show that he has a sexual interest in children does make it more likely that the allegation of the child complainant is true, rather than having coincidentally been made against someone who does not have that interest. For those reasons, we are satisfied that evidence of the viewing and/or collection of child pornography is capable of being admissible through gateway (d). ” Hughes LJ also noted that the court must consider whether it is unfair to admit the evidence. He then addressed further the question of how the evidence of the photographs might be relevant in the context of alleged commission of physical contact offences. At paragraph 8, the Vice President said this: “8. The evidence with which we are dealing is evidence of propensity in the true sense of that word, by which we mean evidence of a character trait making it more likely that the defendant did indeed behave as charged. We are conscious that in the shorthand of the criminal courts the word "propensity" is sometimes applied, no doubt conveniently, to the case where there is evidence that the defendant has previously committed an offence similar to that which is now charged. Propensity may of course be proved by evidence of the previous commission of such an offence, and it may well be that that is the kind of propensity evidence most frequently adduced, but it is not limited to that kind of evidence. On the contrary, it may include any evidence that demonstrates that it is more likely that the defendant did indeed behave as he has been charged. It is however important that juries should be reminded that they cannot proceed directly from the possession of photographs to active sexual abuse. They must ask themselves whether this further step is proved so that they are sure. The exact direction will depend on the facts of each individual case. But it may be particularly important to remind the jury that the extra step does not follow and must be proved. ” 31. Mr Paxton for the Crown argues that, in the passage of the direction after the section that we have italicised, the judge did sufficient to caution the jury that the taking of the photographs (if found to have been taken by the appellant) and the other allegations on the indictment were very different in character and that the photographs were only part of the evidence which should not be exaggerated. He had also directed the jury that they must consider each count on the indictment separately and that it did not follow that if the appellant behaved “in a certain way on some occasions he did so on other occasions”. In this manner, Mr Paxton submits, the judge met the essence of the requirements outlined by Hughes LJ in paragraph 8 of the judgment in D & ors. (supra). 32. Mr Rose for the appellant, in contrast, submits that the judge failed to protect the appellant from the potential for the jury to gain the impression that if the appellant had taken the photographs he had a trait or tendency to commit rapes on children. Even with the judge’s additional direction, he argues, that risk still remained. Moreover, Mr Rose reminds us this appellant was entitled to a good character direction, which was inevitably watered down by what the judge had said in the impugned passage in the summing up. Further, without the evidence of the photographs, this was a case of the jury’s assessment of the appellant’s evidence against that of the complainants and nothing else. 33. Mr Paxton agrees that the paragraph of the summing-up about which complaint is made went beyond the case that the Crown was making about the photographs in relation to the other counts in the indictment and to that extent it was an undesirable advance on the submissions made. However, he submits that, even if there was a misdirection, the convictions are nonetheless safe. 34. The most important feature of that submission is that, in contrast to the type of case considered in D & ors . (supra), this was a case where the photographs were not simply indecent pictures of children generally in the appellant’s possession, they were photographs of the same girls who were the subject of the other counts on the indictment. Further, with regard to the four photographs whose admissibility into evidence was not contested, they were of that young girl with her top held up by a hand to expose her breasts. It was X’s evidence that the appellant had taken those photographs. He had done so by holding her down and pulling up her top. So far as the other photographs which were referred to in count 15, we recall that the allegation was that the appellant had taken these as well (not merely that they were in his possession). 35. It is pointed out that the appellant did not give evidence at trial in the face of detailed and consistent evidence from the two complainants. The jury were entitled to draw an adverse inference from that, in accordance with the proper direction that the judge gave on the subject. The jury also returned two verdicts of acquittal (on count 6, anal rape, and on count 14 exposure). Mr Paxton submits, therefore, that they clearly did not rush from finding a propensity to commit offences, if they so found, to a conclusion that the appellant was guilty of all the charges. Moreover, he submits that the photographs were a small and discrete part of the case, calling for very short reference in the summing-up, in contrast to the extensive material arising for the complainant’s evidence in chief and cross-examination. 36. In our judgment, having considered all these matters, these convictions are indeed safe. The judge did misstate the Crown’s case as to the relevance of the photographs to the other charges on the indictment (apart from count 15) and it is unfortunate that this was not noticed and corrected at the time. However, we consider that the judge’s direction as a whole did not distort the jury’s consideration of the relevance of that material, when taken together with the subsequent passage warning them as to the small part it played in the case and that its importance was not to be exaggerated. As we have said, this was a case that was different from the subject of D & ors . Here the jury were faced with photographs of the very children against whom the other offences were said to have been committed, four of these depicted X in circumstances of significant indecency with the top of her clothing being lifted. Far more significant in the evidence were the accounts of the two girls, tested as it was in cross-examination, and in answer to which the appellant gave no evidence. The case against the appellant was a strong one and the most important issue was the jury’s assessment of the veracity of complainants’ account, in the face of the appellant’s denials of the allegations in his police interview. Upon that evidence the jury reached its conclusions. 37. For these reasons, we dismiss the appeal.

```yaml citation: '[2015] EWCA Crim 353' date: '2015-03-11' judges: - LORD JUSTICE McCOMBE - MR JUSTICE NICOL ```

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 The 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. N THE COURT OF APPEAL (CRIMINAL DIVISION) CASE No. 2022 03418 A1 [2023] EWCA Crim 309 Royal Courts of Justice Strand, London, WC2A 2LL Date: 28 February 2023 Before: LADY JUSTICE SIMLER LORD JUSTICE WILLIAM DAVIS HER HONOUR JUDGE DHIR KC (Sitting as a Judge of the CACD REX V CHRISTOPHER CLARK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - JUDGMENT MR A ROXBOROUGH appeared on behalf of the Appellant MR K LAIRD appeared on behalf of the Crown . . Lady Justice Simler: Introduction 1. This is an appeal against sentence with leave of the single judge. 2. In addition, a question has been raised by the Registrar about the lawfulness of the sentence passed in the Crown Court because of apparent irregularities in the committal or sending by the Magistrates’ Court to the Crown Court. We shall describe these in more detail below. For now it is sufficient to record that following his guilty plea on 4 July 2022 in the Magistrates' Court to the offence of breach of a restraining order contrary to section 363(1) and (2) of the Sentencing Act 2020 , the Magistrates' Court nonetheless purported to send Mr Clark for trial in relation to that offence, alongside an offence of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 , to which he had pleaded not guilty. 3. Subsequently, on 18 August 2022, in the Crown Court at Minshull Street in Manchester Mr Clark pleaded guilty to common assault. He was then sentenced on 21 November 2022 in respect of both offences. HHJ Savill imposed a sentence of two years’ immediate imprisonment for the breach offence with a concurrent sentence of three months' imprisonment for the common assault. A further restraining order was made and a statutory victim surcharge order was imposed. 4. We have had the benefit of written and oral submissions from Mr Roxborough for Mr Clark and from Mr Laird for the prosecution. We are grateful to both counsel for the assistance they have provided us with. The facts 5. Mr Clark and the victim, Emma Westwood, had been in an on-off relationship for a period of about four years. In 2019 Mr Clark was convicted of battery against her when he bit her, causing injuries to her face. A restraining order was made against him. Under the terms of the order he was prohibited from contacting Emma Westwood directly or indirectly and prohibited from entering a number of identified named roads including the road on which she lived. He breached that order on six occasions between 2019 and 2021. In addition to serving a number of short custodial sentences for those breaches, the restraining order was extended until 22 December 2023. 6. On 1 July 2022 Mr Clark was released from serving a custodial sentence in respect of breach of that restraining order. He contacted Emma Westwood by email on the same day, asking her if he could come over to her address. She refused. He turned up regardless, asking Emma Westwood for money for a taxi. In the hope that he would leave her alone, she gave him some money. He left but returned to her address some ten minutes later with a bottle of vodka. 7. During the second visit an argument ensued and he questioned her loyalty to him whilst he had been in prison. He struck her to the face with the back of his hand. This caused her to fall to the floor. He pulled her hair extension off and threw a drink over her. During the incident he took her mobile phone and locked the front door so that she could not get out. She ran upstairs to bang on the windows. He followed her. She managed to shout for help out of her son's bedroom window before he dragged her away from the window by her neck and arms. There were photographs of her injuries provided to the judge and we too have seen those. The incident lasted for approximately 20 minutes. 8. Ms Westwood fled the address and contacted 999. Officers attended at the address. Whilst they were taking her statement Mr Clark appeared at the back door of her home address holding a bottle of vodka. He was arrested and cautioned. He was then taken to Pendleton Police Station where he was interviewed. He largely answered “no comment” to questions asked of him but said that the injury to Emma Westwood's eye was already there when he arrived and that the injury to her neck was from having consensual sexual intercourse with her the night before. The procedural irregularities 9. Before addressing the appeal itself it is necessary to consider and address the question raised by the Registrar as to whether there was a valid committal to the Crown Court and whether the sentence that followed was lawful. The chronology of what occurred can be summarised as follows. 10. On 4 July 2022, Mr Clark appeared before the Greater Manchester Magistrates' Court charged with assault occasioning actual bodily harm and breach of a restraining order. Both offences are either-way offences and therefore subject to the procedure contained in section 17 A of the Magistrates' Courts Act 1980 . This procedure is mandatory and contains important safeguards for a person appearing in the Magistrates' Court in relation to an offence that is triable either way. It requires the court to communicate directly with the individual in ordinary language so that it is clear in open court that he or she understands the procedure and the consequences of indicating a guilty plea. The procedure taken as a whole is designed to ensure that the right to trial by jury is not lost through misunderstanding or ignorance. It is important that it is complied with for this reason and also, so that in the event that there is a committal for sentence, the Crown Court knows that the guilty plea was properly taken if any issue should arise about it. 11. As Edis LJ explained, presiding in this court in R v Gould [2021] EWCA Crim 447 , there is no transcript of proceedings before the justices and one purpose of the statute is to achieve a situation where the Crown Court can safely assume that this important procedure has been properly undertaken. A failure to follow the procedure by the Magistrates' Court renders what follows a nullity and liable to be quashed. 12. Despite pleading guilty to breach of a restraining order, the sending sheet for Mr Clark states that both offences were sent for trial pursuant to section 51(1) and (2)(b) of the Crime and Disorder Act 1998 . The case lawyer in the Magistrates' Court has confirmed that the court record shows that a not guilty plea was entered in respect of the assault offence, but no plea is recorded against the breach of a restraining order and both matters were sent for trial. It appears that this error was later identified and there was an attempt to correct the error by amending the paperwork afterwards to give rise to a committal for sentence. However, it remains the case that the sending sheet which is the primary record reflects that the breach offence was sent for trial. We note also that the wrong legislation was referred to, namely section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 and not, as it should have been, section 14 of the Sentencing Act 2020 . (A copy of the memorandum of conviction has been requested but has not yet been received.) The point was not further explored or addressed in the Crown Court. 13. It is common ground, as both counsel have made clear, that when the charges were put to Mr Clark he did in fact plead guilty to the offence of breach of a restraining order. Upon that plea of guilty the proper course would have been for the Magistrates' Court to follow the procedure prescribed by section 17 A(6) of the Magistrates' Court Act 1980 . That would have resulted in the conviction being entered in the Magistrates' Court. It would then have been open to the court to commit Mr Clark to the Crown Court for sentence pursuant to sections 14 , 18 or 20 of the Sentencing Act 2020 . 14. In relation to the assault offence, in respect of which there was a not guilty plea, the Magistrates' Court would have had to determine whether the offence was more suitable for summary trial or trial on indictment (see section 19 of the Magistrates' Court 1980). Instead however the Magistrates' Court record states, as we have indicated, that Mr Clark was sent for trial in respect of both offences pursuant to section 51 of the Crime and Disorder Act 1998 . 15. Under section 66 of the Courts Act 2003 a Crown Court judge and other judges listed in that section may make orders and pass sentence in relation to cases normally reserved to Magistrates' Court when disposing of related cases in the Crown Court. The scope of the section 66 power, as amended in 2013, and the potential perils of Crown Court judges using it, were considered in R v Gould . This court concluded that a judge of the Crown Court, or indeed this court, is vested with all the powers of a DJ(MC) in relation to criminal causes or matters by virtue of holding that office. That includes sitting as a Magistrates' Court and includes any power which a Magistrates' Court can lawfully exercise. However, this court also identified that the important parameters within which the section 66 powers have been used may have been overlooked in some cases. Edis LJ restated them as follows: “80. These important parameters within which the section 66 powers may be used have been overlooked in some of the present cases and perhaps elsewhere. It is worth restating them:- (i) When the Magistrates' Court make an order which gives jurisdiction in the case to the Crown Court, whether by committal for sentence or sending for trial, that is the end of their jurisdiction in the case. In technical language they are functus officio. The Crown Court judge cannot use section 66 to make any order which the Magistrates' Court could no longer make. (ii) There is no power in the Crown Court to quash an irregular order. Where it is plainly bad on its face, the Crown Court may hold that nothing has occurred which is capable of conferring any jurisdiction to deal with it. We shall return to these points. We appreciate that this consequence of the decision in R. v. Sheffield Crown Court limits the power under section 66 to correct errors in committals for sentence, but it is unavoidable. If quashing is required this can only be done by a Divisional Court. We have held above that it is open to the judge in the Crown Court, as a DJ(MC), to lay and commit a new charge in the correct form. The relevant Rules Committees should consider whether an expedited and summary procedure could be adopted for the quashing by consent of unlawful committals and sendings which have been overtaken by events.” 16. Both counsel in this case suggest that the error was simply an administrative error in the failure accurately to record Mr Clark's guilty plea and the correct statutory basis pursuant to which this case was sent to the Crown Court. Mr Roxborough submitted that the evidence, in particular the Better Case Management form, clearly demonstrates that a valid guilty plea was entered in the Magistrates' Court but that the Magistrates' Court failed properly to record that plea. That failure does not however, he submitted, alter the fact of the plea. The Magistrates' Court had the requisite power to commit the matter for sentence either alone or with the assault matter to which Mr Clark had pleaded not guilty. The error was not fundamental but was simply administrative. There was nothing contrary to the interests of Mr Clark and he suffered no injustice or prejudice. 17. Mr Laird emphasised that there can be no doubt that it was the intention of the Magistrates’ Court to commit Mr Clark for sentence in respect of the breach of a restraining order following his guilty plea. In the circumstances this error can be treated as a mere error in recording so that the sentences passed were valid and passed with the jurisdiction to do so. In the alternative, Mr Laird submitted that the most efficient way of dealing with this case, should the court take a different view, would be for the court to quash the sentence imposed by the Crown Court, for one of the members of the constitution to sit as a Crown Court judge, take a plea on indictment if that is necessary, and sentence accordingly. Alternatively, a member of the court could commit the conviction for breach sitting as a DJ(MC). Out of an abundance of caution Mr Laird made clear that a fresh indictment and an application with a draft restraining order have been prepared by the prosecution and served on Mr Clark. 18. Both counsel referred us to R v Duigan [ 2022] EWCA Crim 1452 , where this court held: “14. Unless the sending is obviously invalid, the Crown Court should not be unduly unconcerned about a mistake in recording the statutory basis for the sending. Care must be taken though to ensure that any sentence subsequently imposed falls within the jurisdiction that would have been available if the basis of sending was correctly recorded: see R v Ayhan [2011] EWCA Crim 3184 . 15. If the sending is obviously bad on the face of it, such that the Crown Court concludes that it cannot proceed on the basis of it, the prosecution may have to consider the position carefully. …” They invited us to proceed on the basis identified in paragraph 14. 19. We have considered counsel’s submissions with care, but have concluded, contrary to their submissions, that this is not a case where a mere administrative error occurred. It would have been an administrative error if the committal for sentence was made under the wrong statutory provision. It is that sort of case that the Crown Court need not be unduly concerned by and can proceed with by treating the error as an administrative one. In this case, by contrast, the sending by the Magistrates' Court was a sending for trial. That was obviously invalid because a guilty plea had been entered and there was therefore no jurisdiction in the Magistrates' Court to send the breach offence for trial. The only evidence of what the Magistrates did is the sending sheet itself and this does not support or confirm that the procedure set out in section 17 A of the Magistrates’ Court Act 1980 was followed. Counsel relied on the Better Case Management form but that does not assist us. That form would have reflected a guilty plea if Mr Clark had merely indicated a plea before venue on an either-way offence. As we have said, it is the sending sheet that is the primary record, and it is the sending sheet that matters. 20. Moreover, having made the decision to send for trial and recorded it in the sending sheet, the Magistrates' Court was functus officio and the attempts afterwards (even by the Magistrates' Court itself) to correct the error were a nullity. Any attempt by the Crown Court to exercise the section 66 powers would have been equally invalid since that power does not extend to correcting errors in committals for sentence once the Magistrates’ Court is functus officio and no longer has jurisdiction to act as R v Gould has explained. 21. For those reasons, we have concluded that the sending for trial had to be quashed and a lawful committal effected before the Crown Court could sentence in this case. The quashing order could only be made by the Divisional Court. Once the sending is quashed the case would then in effect never have left the Magistrates' Court and the Magistrates' Court's jurisdiction would remain. The section 66 power could then potentially be exercised subject to the constraints identified so clearly in R v Gould. 22. As counsel have emphasised, a guilty plea was entered by Mr Clark in the Magistrates' Court. That was a lawful plea and conveyed his desire to admit what he had done. The failure was in the sending of that charge for trial when there should have been a committal for sentence. The failure meant, as we have said, there was no valid committal. It seems to us, in those circumstances, that the following steps must and will be taken. We will sit as a Divisional Court. We grant permission to apply for judicial review. We extend all time limits as necessary. We dispense with service requirements. We quash the original sending by the Magistrates' Court in respect of the breach offence. The sending of the assault offence is unaffected. The sentence passed in the Crown Court for the breach offence was without jurisdiction in the circumstances and must fall away. 23. In light of the lawful guilty plea entered in the Magistrates' Court, Mr Roxborough has conceded that the justices would inevitably have committed this case to the Crown Court had the proper procedure been followed. That concession is properly made. On the facts of this case, it is clear to us that the use of the section 66 power could not deprive Mr Clark of any procedural protection or cause him any prejudice. We are satisfied accordingly that the section 66 power can be used in this court to regularise the position. Having quashed the sending of the breach offence as a Divisional Court, I shall now sit as a DJ(MC) to correct what is plainly an error of omission, namely the failure by the Magistrates' Court to take the next step in the committal for sentence process. As already indicated, it is inevitable that the case would have been committed for sentence because of Mr Clark's history and the inevitable conclusion that the Magistrates' Court would not have sufficient power to sentence him for the breach offence. I accordingly commit the breach offence to the Crown Court for sentencing under section 14 of the Sentencing Act 2020 following his guilty plea and acknowledging that the Magistrates' Court powers are insufficient in this case. The breach falls to be sentenced alongside the assault offence to which Mr Clark pleaded guilty in the Crown Court. This court can act under the 1968 Act with all the powers of the Crown Court. 24. At this point, we are therefore in effect sentencing Mr Clark for the first time under the powers of that Act rather than considering this appeal. However, in the course of doing so we will reflect on all the submissions made by Mr Roxborough in support of his ultimate contention that the sentence passed by the judge was manifestly excessive and that a shorter sentence should now be passed. The sentence 25. Mr Clark was aged 37 at the date of sentence (born 27 April 1985). He had nine convictions for 12 offences spanning the period 13 September 2019 to 23 December 2021. Significantly he had convictions in 2019 for battery and for breach of a restraining order. In 2020 he had two convictions for breach of a restraining order and in 2021 three convictions for breach of a restraining order. The convictions all involved the same victim and the same restraining order. 26. There was a pre-sentence report available to the judge and we have read that with care. The report author assessed Mr Clark's risk as not manageable in the community. The updated report maintains that view. The evidence indicates that Mr Clark is unable to comply with court orders and lacks the internal regulation necessary or the insight to do so. He was assessed by his community probation officer and the pre-sentence report author as presenting a very high risk of serious harm to Ms Westwood. If released it was thought highly likely that he would approach her or attend her home and cause her physical or emotional harm of a serious nature. The judge also had a victim personal statement from Emma Westwood dated 2 July 2022. We too have read that statement. 27. In his sentencing remarks the judge said this was a very serious breach of its kind, therefore culpability was A within the Sentencing Council Guideline. In terms of harm, HHJ Savill concluded that this was a category 2 case based on the actual and intended harm. He rejected the submission that harm fell at the bottom end of that category. He said that Mr Clark made Ms Westwood's life a real misery over the years and did so once again with six previous breaches in the background. The judge's conclusion that this was an A2 offence meant a starting point of 12 months. However, he said that the facts of the offence itself justified a starting point at the top of the category, namely 24 months' imprisonment. The judge then went on to consider aggravating and mitigating features. He referred to the high likelihood of reoffending, the serious risk presented by Mr Clark, the fact that he was not manageable in the community and the offender manager's report which said he had really only paid lip service to community orders in the past and was a very manipulative individual. The judge continued: “(iii) The aggravating features in this case are these: this was committed against the background of numerous previous convictions for breach and violence against this victim. I have mentioned that I am taking into account the assault as part and parcel of that as well, and it was committed while you were on licence, the very day that you had been released from custody. Accordingly, it seems to me that I am entitled to on the facts and circumstances of this case to go beyond and I do so deliberately, the upper limit of a Category A2 offence, to a starting point, had you contested the matter, at 36 months. You are entitled to a full one-third reduction. That reduces the sentence to one of 24 months.” 28. The judge went on to explain why the sentence that he passed had to be one of immediate custody and that conclusion is not challenged on this appeal. The appeal and the re-sentence 29. Mr Roxborough contends that the sentence passed by the judge was manifestly excessive. He accepts that there were aggravating features that permitted the judge to increase the sentence from the starting point of 12 months in the agreed category A2 for this offence, but submits that the judge went too far in taking the sentence outside the range for an A2 offence and up to three years. This was well into the category range for an A1 offence. Mr Roxborough invited this court to sentence on an appropriate category A2 basis. 30. He developed those points submitting that the range of a high-level community order to two years' imprisonment for A2 offences was sufficient to reflect the seriousness of the offence, the persistent nature of the breach and the common assault. He submitted that to aggravate in respect of the previous breaches, characterised as persistent by the judge, was in effect to double count. Mr Clark has served sentences for those previous breaches and they should not have been treated as aggravating the sentence to the extent that they were. Moreover, he submitted that the facts of the index offence itself did not indicate any particular persistence. The incident lasted a mere 20 minutes and the question of persistence can only have come from the frequency of the other breaches overall. Moreover, to elevate the starting point to three years was simply not justified on the facts. If the judge felt that this was a category 1 case, he should have made that clear and the matter could then have been ventilated in open court. 31. In his submissions Mr Laird maintains that the sentence was just and proportionate. The offence was both persistent in and of itself and also reflected a very serious breach. The Guideline makes clear that once aggravating features are considered, it may well be appropriate to move outside the category range and that was entirely justified in this case. 32. We have considered the submissions made by Mr Roxborough with care. He has said all that could have been said on behalf of Mr Clark. 33. We start with the Sentencing Council Guidelines for breach of a restraining order. We agree with the judge's assessment that this was a high culpability offence because it was a very serious breach. Having contacted Emma Westwood by email in breach of the restraining order, Mr Clark went to her home address at night. While he was there in her home, where she was entitled to feel safe, he interacted with her and asked her for money. She gave him money no doubt to get rid of him and he left. But he returned a little while later with a bottle of vodka (itself a concerning feature of this case given the apparent link between alcohol and offending by him). On his return, he went into her home once again. He again interacted with Emma Westwood. He sought to humiliate her. It seems to us that this sequence of actions by Mr Clark demonstrates persistence in the offence itself and reflects high culpability with a very serious breach. 34. As for harm, while Mr Clark did not cause very serious physical harm, there can be no doubt that harm of at least category 2 was caused. We are sure, having read the victim impact statement, that there was emotional harm caused not only by the constant anticipation of harm that Ms Westwood no doubt experienced, but also by what he did while he was at her address that night. This was undoubtedly an A2 offence, and the seriousness of the breach and the multiple culpability factors were sufficient to justify movement to the top of the category range. We are sure that the judge was correct to reach those conclusions and they are the conclusions we ourselves have reached. 35. The Guideline makes clear that it is then necessary to consider aggravating and mitigating features. Further, if and to the extent that aggravating features are identified, the Guideline states that it may well be appropriate to make an upward adjustment in the sentence and move outside the category range. Here there were a number of aggravating features. There were the previous convictions reflecting similar behaviour towards this very victim. Significantly there was the commission of this serious offence within a matter of hours of Mr Clark's release on licence. Ms Westwood had barely any respite from Mr Clark's unwelcome attention from 2019 onwards. The assault had also to be reflected. There were no mitigating factors apart from his guilty plea. The judge increased the sentence before discount to three years and was amply entitled to do so. Doing so involved no double counting of the same factor and nor did it involve resentencing for previous breaches as Mr Roxborough suggested. The features identified are all features that the judge was entitled to rely on as increasing the seriousness of the offence. We consider that they are features we should rely on too. In the result, we do not consider that the judge went wrong in any part of this sentencing process and cannot see any basis for departing from the judge's approach. In our judgment, the sentence was not arguably manifestly excessive in light of the facts of the breach offence itself, together with the aggravating features we have identified. 36. The result is that we reject the contentions advanced by Mr Roxborough on this appeal and by way of submissions in relation to the sentencing process we are now conducting. We agree with the judge that the index offence was very serious. It involved not only direct contact on two occasions but a nasty assault, committed on the very day of his release from his last sentence. Not only had previous prison sentences for breaches of the order in relation to the same victim not deterred him, but they were part of an established pattern of complete disregard for orders of the court. This too had to be reflected. After credit, a sentence of two years for the breach offence was entirely justified and proportionate and it is the sentence that I shall invite my lady, HHJ Dhir KC, to pass. 37. HER HONOUR JUDGE DHIR KC: For the reasons given by Simler LJ, the sentence that I pass for the offence of breach of a restraining order contrary to section 363(1) and (2) of the Sentencing Act 2020 is two years’ imprisonment. For the offence of common assault, the sentence is three months’ imprisonment. These sentences are to run concurrently to each other, making a total sentence of two years’ imprisonment. These sentences are to be treated as if they were passed on 21 November 2022 when this case was listed at the Crown Court in Minshull Street Manchester. The restraining order passed by the judge, which was a restraining order made for an indefinite period falls away and is replaced with the new restraining order which shall be treated as if imposed on 21 November 2022. The victim surcharge of £187 applies. Conclusion 38. The result is that the appeal is dismissed for the reasons we have given. We are grateful to both counsel for the assistance they have given us. We invite Mr Roxborough to explain to Mr Clark the effect of the sentence that has now been imposed.

```yaml citation: '[2023] EWCA Crim 309' date: '2023-02-28' judges: - LADY JUSTICE SIMLER - LORD JUSTICE WILLIAM DAVIS ```

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 1 Case No: 2004 02846 C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WINCHESTER CROWN COURT THE HONOURABLE MR JUSTICE SILBER Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/01/2006 Before : THE RIGHT HONOURABLE LORD JUSTICE RIX THE HONOURABLE MR JUSTICE BELL and SIR JOHN ALLIOTT - - - - - - - - - - - - - - - - - - - - - Between : Regina - and - Leslie Gordon Gibson Appellant /Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The Crown were not represented Mr John Lofthouse (instructed by Messrs Peach Grey & Co.) for the Appellant Hearing date : 11 October 2005 - - - - - - - - - - - - - - - - - - - - - Judgment This is the judgment of the court : 1. On 23 July 2004 in the Crown Court at Winchester before Silber J and a jury the applicant Leslie Gibson was convicted of murder and on 30 July 2004 he was sentenced to life imprisonment with a recommended minimum term of 10 years and 9 months imprisonment. He was tried jointly with his son, David Gibson, who was also convicted of the same murder, namely that of the son’s wife, Belinda. We shall refer in this judgment respectively to the applicant, David and Belinda. 2. This judgment contains the reasons for refusing the applicant’s renewed application for permission to appeal against his conviction. The application was refused at the conclusion of the hearing on 11 October 2005, when reasons were reserved. 3. The renewal of the application was filed one day out of time, as a result of the absence through illness of the solicitor responsible for the case. We are prepared to extend time so as to validate the application. 4. The prosecution case at trial was that the applicant and David had murdered Belinda on the night of 15/16 February 2002 and that David, with the applicant’s assistance, had disposed of her body at sea, weighted by a concrete block, later on the afternoon of 16 February. Her body has never been recovered. 5. The applicant and David both gave evidence that they had each seen her walking away from her home in Purvis Gardens, Sholing, wheeling a suitcase, at about 7 am on 16 February. David said that she had decided to leave home. She had suffered from mental health problems. The applicant said that he had seen her from the window of the home, also in Purvis Gardens, of his friend, Annamari Weeks. 6. Annamari Weeks was the principal witness for the prosecution against both defendants. Although the accumulation of circumstantial evidence against David could be described as formidable, the evidence against the applicant depended very largely on Annamari Weeks’ testimony. It was therefore very relevant that she was treated by the judge as an accomplice (as indeed it was common ground that she should be treated). She had in fact been arrested (on 9 May 2002) together with the applicant and David for Belinda’s murder, and was later (on 16 September 2002) arrested again for conspiracy to murder and perverting the course of justice (viz disposing of Belinda’s keys and medication). In the meantime (on 17 July 2002) she had been interviewed under caution, but not arrested, for assisting offenders (viz disposing of some of Belinda’s clothes). She was interviewed many times. She was twice sent a “NFA letter” (first on 27 July 2002 and subsequently on 12 January 2003) telling her that no further action would be taken against her in relation to these matters. Each letter ended, however, with a proviso in case further evidence came to light. She was never charged. Ultimately, however, she became a witness for the prosecution. 7. These circumstances gave rise to an application made on behalf of both defendants to exclude her evidence, “by reason of serious irregularity as to [her] status” and also under section 78 of the Police and Criminal Evidence Act 1984 . There was also subsequently an application on behalf of the applicant to stop the trial against him on the basis that her evidence was so unreliable that there was no case to answer. All these applications failed. 8. In her first statement to the police, on 8 March 2002, at the time when Belinda’s disappearance first came to the attention of the authorities, Annamari Weeks also said (as did David, but not the applicant, both of whom were also spoken to on that day) that she had last seen Belinda in the street with a suitcase early in the morning. On 9 March 2002 the applicant made his own witness statement, this time also saying that his attention had been directed by Annamari Weeks to the sight of Belinda in the street early in the morning. That remained the position of the two defendants respectively down to trial. However, by the time of her arrest on 9 May 2002, Annamari Weeks admitted that she knew Belinda was dead and that David had killed her by smothering her. At that time she said that the applicant had been with her in her home that night and added nothing to implicate him in the murder. In a subsequent statement read by her solicitor on 31 May 2002, however, she spoke of an occasion about Christmas 2001 at Netley Social Club when she had been present and heard the applicant and David discussing a plan to kill Belinda and put her body in the Solent. It was not until 28 August 2002, however, when in a series of interviews without caution or solicitor she said for the first time that the applicant was present at the scene of the murder, when his hand was scratched. 9. At trial Annamari Weeks’ evidence against the applicant was as follows. She spoke of a meeting at McDonald’s restaurant in or near Southampton in January 2002 at which David had planned the killing of Belinda. David did most of the talking, but the applicant also joined in the conversation and was not trying to dissuade David. They were to dispose of the body from a boat at sea. Her impression was that the deed was to be done on the next day. Belinda was not killed on the next day. Annamari also gave evidence as to why that was so, but that evidence was only against David, and not against the applicant. 10. Next, Annamari Weeks spoke of a further meeting in a cricket pavilion in Royal Victoria Park in the early hours of the morning in early February 2002. There was then another conversation about plans to kill Belinda, but she could not say who joined in that conversation. However, the applicant was present and, indeed, had picked her up to meet David there. A fourth person, a young side-kick of David’s, was also present at both meetings. 11. Annamari Weeks also gave confused evidence about a concrete block. She had assumed that the applicant had gone over to David’s house to move it, but had not in fact seen him do so. The judge directed himself that that evidence was not of much value in itself. 12. As for the night of 15/16 February, her account, by the end of her cross-examination, was not clear. She and the applicant had been at her home. She was very drunk. She woke up in the early hours of the morning to find the applicant standing there, but she went back to sleep. She said that she knew that the applicant had been waiting at her house for a text message from David to go over to his home “to go and kill Belinda Gibson”, but she did not remember any conversation nor for sure if the applicant said anything to her at all. She knew, however, seeing the applicant standing there, that Belinda was dead. There came a time when she noticed a scratch on the applicant’s hand between thumb and forefinger, but she did not know how that featured, save that there had been a conversation about it and the scratch stuck in her mind. She said that the applicant did not say that he had killed Belinda. (Subsequently, as she went on to say, David had described to her how he had killed Belinda with the applicant’s assistance: but, as the judge had repeatedly warned the jury, that, and other evidence of a similar status, was not evidence against the applicant.) 13. As for later on 16 February, Annamari Weeks said she was at David’s house. The applicant was there and told her that Belinda’s body was in the shed, but she could not remember exactly what he said, and she did not know why this was not mentioned in her police interviews. She also spoke of seeing the applicant’s boat in David’s garden. The boat, although the applicant’s, was kept at David’s home, but the defendants disputed that it had been moved into the garden and said that it was still parked outside the house. The prosecution case was that it had been moved into the garden so that Belinda’s body could be put into it without attracting attention. Later still that afternoon, she saw a convoy of David’s car and trailer, followed by the applicant’s Cavalier, leaving the house. 14. Towards the close of the trial, the last witnesses called by David for his defence, after the applicant’s own case had been closed, ushered in an extraordinary episode. Two witnesses, Sarah Hughes-Brian and her partner Terence Hutchison, gave evidence that they had seen a woman answering Belinda’s description walking along Purvis Gardens in the early morning of 16 February. Sarah Hughes-Brian was asked in cross-examination whether she had been paid for her evidence, but she reacted indignantly to this and the Crown were asked by the defence to confirm, which they did, that the question was not based on any information. However, these two witnesses were also asked whether they knew the applicant’s daughter (David’s sister) and another person (who were awaiting trial for attempting to pervert the course of justice in respect of this case). They denied knowing them. However, over the weekend adjournment, neighbours came forward, alerted by press coverage, to say that the witnesses were not telling the truth. On the following Monday the judge held a voire-dire in the course of which the witnesses admitted that they had lied. Sarah Hughes-Brian said that she had been paid £1,000, arranged through the applicant’s daughter, for her testimony and Terence Hutchison admitted that he had provided his evidence at his partner’s request. They did not, however, suggest that either defendant had anything to do with their giving evidence. 15. It was then agreed that the witnesses should be called again, this time by the Crown, to give their retraction to the jury, although on this occasion the names of the suborners were withheld. The judge warned the jury at once that they should not hold this development against either defendant, and he repeated his warning in his summing-up. The latter warning was in these terms: “First, I direct you that you must totally disregard the evidence of Sarah Hughes-Brian and Terence Aitchison in so far as they said that they saw anybody walking along Purvis Gardens on Saturday the 16 th of February 2002 as they are self-confessed liars. Second, even if you accept Sarah Hughes-Brian’s account that she was paid £1000 to give false evidence, I direct you that you do not hold either Defendant in any way to blame or to be responsible, directly or indirectly, for the false evidence that both Sarah Hughes-Brian and Terence Aitchison gave you last week. In addition, both Sarah Hughes-Brian and Terence Aitchison made it quite clear that they had not been approached by David Gibson to give false evidence. Third, I direct you that you do not conclude that either David Gibson or Leslie Gibson were responsible in any way for the payment of £1000. Sarah Hughes-Brian accepted that the sum of £1000 she received did not come from either David Gibson or Leslie Gibson. Therefore, I direct you should not consider the behaviour or evidence of Sarah Hughes-Brian and Terence Aitchison as in way supporting the Prosecution case or in any way undermining the case of either Defendant. Misguided motives of others can give rise to situations like this. It would, therefore, be unfair to lay this attempt to bolster the defence at the feet of one or both of the Defendants. Finally, as I have told you earlier, I direct you that you must not speculate about who might have been responsible for the payment, or for the request to give false evidence, or who had requested Sarah Hughes-Brian to give false evidence. The reason for that direction, members of the jury, is that if you were to speculate that would only lead to injustice and so you must not do so.” 16. In the meantime, however, following the retraction of these two witnesses’ original evidence, applications had been made on behalf of both defendants to discharge the jury on the ground that this development had caused severe and irremediable prejudice to each. The judge refused these applications, although he reserved his reasons and gave them on 26 July 2004, after the jury had returned their verdicts. 17. At about this time, following the convictions, in the period pending the judge’s consideration of the minimum sentences to be served by the defendants, the case took another extraordinary turn. David asked to be interviewed by the police and admitted that Belinda was indeed dead and that he had put her body into the sea. We have not been provided with a copy of the transcript of that interview, but we have been informed by Mr Lofthouse, junior counsel for the applicant at trial and counsel pro bono for him on this application, that in it David said that he had gone to sea alone and that he spoke of his father’s role only in terms of helping him dispose of the body. It does not appear, however, that David was accepting responsibility for Belinda’s death. The judge was informed of this development by 28 July 2004, when he added a postscript to his reasons for refusing the applications to discharge the jury. 18. Up to this point and throughout the trial both defendants had strenuously denied any role in Belinda’s disappearance or death. They denied any discussion in advance of her killing. They denied the meetings at McDonald’s or the cricket pavilion of which Annamari spoke. They insisted that they had seen Belinda leaving home on the morning of 16 February. They denied any disposal of her body at sea. 19. On 30 July 2004 the judge ruled on minimum sentences to be served. It seems that on that day, after the hearing, the applicant spoke to his counsel and solicitor and “it was clear that further consideration needed to be given to taking instructions”. Nothing further, however, has been vouchsafed to the court as to the nature of what the applicant said that day to his legal representatives. At any rate, no full instructions were then taken from the applicant and that remained the position down to the time when his notice of appeal was lodged in the latter part of August 2004. 20. That notice was at that time confined to three grounds of appeal. The first was that the judge had erred in admitting the evidence of Annamari Weeks. The second was that the judge had erred in refusing the submission that the applicant had no case to answer. The third was that the judge had erred in refusing to discharge the jury from trying the applicant as a result of the evidence of Sarah Hughes-Brian and Terence Aitchison. There was at that time no application to admit fresh evidence from the applicant. In perfected grounds of appeal dated 15 November 2004 those three grounds remained the only grounds of appeal. However, in a perfected Advice of the same date Mr Lofthouse referred briefly to the post trial developments. He said “some instructions have already been obtained from Leslie, and we expect further instructions. We think it very likely that the result may be an application to adduce fresh evidence from Leslie. If so, such an application will be made as soon as possible.” 21. In a further Note to Registrar dated 24 November 2004 Mr Lofthouse returned to the subject matter of fresh evidence from the applicant. He wrote that, on reflection, senior counsel at trial (Mr Vere-Hodge QC) and he considered that it would be better if this matter were resolved before consideration of the application for leave to appeal by the single judge. He continued – “We consider that Leslie Gibson needs advice so that he can (if he wishes) give full instructions as to what he says about the case now. If there is to be a further proof of evidence, the taking of it would require great care and full knowledge of the case so far. Accordingly, we would respectfully ask for funding to be extended at this stage so that the solicitors who represented Leslie Gibson at trial can see him, advise him, and, if he wishes, prepare a proof of evidence…We have an indication already of what Leslie Gibson may say, but matters need to be very carefully investigated with him. It may be, of course, that in the event no application to adduce fresh evidence is made.” 22. It appears that the matter was nevertheless considered by the single judge before any further evidence was forthcoming. Indeed, no fresh evidence was in existence at the time when the criminal appeal office summary dated 13 May 2005 was brought into existence – that makes no reference to the possibility of fresh evidence – nor at the time of Mr Lofthouse’s skeleton argument for the hearing of the renewed application, which was dated 21 June 2005. That skeleton merely referred again briefly to the possibility of fresh evidence, and to the possibility that the hearing of the renewed application might be adjourned, at least in part, “so as to preserve any appeal on this basis”. 23. It seems that, at an earlier hearing of which we do not have the transcript, the full court did adjourn the renewed application and granted the request for funding. 24. In the event it was not until 7 October 2005, essentially on the eve of the hearing date for this renewed application, that any new evidence was brought into existence. On that date a witness statement by Mr Roger Peach, a partner in the firm of solicitors who have been acting for the applicant at all relevant times, was made and forwarded to the criminal appeal office. That statement said that Mr Peach had seen the applicant and taken instructions from him prior to the service of the notice of appeal (in late August 2004) but had not as yet taken a statement from him. He added: “I may say that we were reluctant to proceed further in any event (a) as we were expecting developments from the further police investigation, involving David Gibson going out with the police on a boat [to locate the body], and (b) because we wished to ensure that final instructions were taken from the Applicant only when he had had a full opportunity to consider his interests.” 25. That was said in response to what seems to have been a query from this court at the previous hearing as to why full instructions were not earlier obtained pursuant to the trial representation order which did not expire until lodging of the notice of appeal. Mr Peach’s witness statement concluded: “Since then I have had a number of meetings with the Applicant, and there is now a statement before the Court. I respectfully invite this Court to grant leave to adduce this evidence.” 26. Attached to Mr Peach’s statement was a statement of the applicant, but that is neither signed nor dated. The applicant begins by referring to it as “my final statement”. In it he essentially adopts a new defence. He now accepts that Belinda died on the night of 15/16 February and that her body was buried at sea by David. He agrees that he helped to dispose of the body by proceeding in convoy with David on the afternoon of 16 February, save that David went to sea in the boat by himself. He continues to deny however that the boat was moved from the tarmac to the garden. He also continues to deny any meeting at which there was planning for the death of Belinda. His account of her death is now essentially an attack on Annamari Weeks. He says that at 03.36 on 16 February, while he was at her house, he received a text from David to say that she had gone over to David’s house. When he went over, suspecting trouble because Annamari had fallen out with Belinda, he found David carrying Belinda in his arms. He tried to revive her, without success. At some point David said “that bloody cow’s killed her”. He, the applicant, wanted to call the police, but it was Annamari Weeks who suggested “Can’t we say she left, that she was always trying to walk off and kill herself.” He wanted no part in this, but he was not sober and was not thinking straight. Fear of what David and Belinda’s children might see come the morning led him and Annamari Weeks to carry Belinda’s body to the shed. “From then on, the course we took seemed settled, as was my role. Because of my Son, I felt I could not change my position.” However, “I just did not know what was going to happen next”, and it was Annamari Weeks (or himself) who suggested the boat. She and he put the body in the boat. “She said something about taking her out fishing. It was obvious what she meant.” As for how the death occurred, he could not be sure: “I do not know to this moment whether that had anything to do with David although I still cannot believe it did…I do not know if either Anna Marie Weeks or David had been involved with whatever caused the death, or both of them had been involved.” 27. With this background, we turn to the grounds of appeal, both those formally before us and the implicit additional ground based on the application to admit the applicant’s new evidence, if his unsigned statement can be so described. 28. At the hearing, Mr Lofthouse began with and placed particular emphasis upon the new evidence, possibly because the three existing grounds had been fully covered in his lengthy Advice as well as in his skeleton, possibly because in many respects the new evidence was a new beginning, superseding much of what had occurred at trial and destroying large amounts of the applicant’s defence. However, it may be that strictly speaking the new evidence remained consistent with the attack at trial on Annamari Weeks’ reliability, although it can hardly be said to be consistent with the application to discharge the jury on the ground of the prejudice caused by David’s false witnesses. In any event we will begin by considering the applicant’s original grounds and end with the new evidence. Ground one: the admission of Annamari Weeks’ evidence 29. Mr Lofthouse acknowledged that in law accomplice evidence can be admitted, provided an adequate warning is given to the jury as to the dangers implicit in the situation, in particular the possibility that Annamari Weeks was seeking to extricate herself from the continuing danger of prosecution by assisting the police with unreliable and tainted evidence: see R v. Pentonville Prison Governor, ex parte Schneider [1981] 73 Cr App R 200 and Chan Wai-keung v. Regina [1995] 2 Cr App R 194 (PC), cases which the judge at trial relied upon in his ruling. At one time it appeared that the burden of Mr Lofthouse’s submission was that in the absence of a totally clear, formal and binding immunity from prosecution such as was described in R v. Turner (1975) 61 Cr App R 67, it was simply not open to the judge to admit Annamari Weeks’ evidence: but ultimately Mr Lofthouse made it clear that his case on this ground was, as he put it in his skeleton, “focused on the exercise of discretion”. Moreover, at the hearing he accepted that there was precedent for the terms of the NFA letters sent to Annamari Weeks, that formal immunity was not necessary, and even that he was unable to say that the judge had arrived at a decision which “no reasonable judge” could have reached. It was simply that a combination of all the circumstances made a conviction based so largely on the admission of her evidence unsafe. 30. As for the circumstances in question, Mr Lofthouse emphasised the convoluted history of Annamari Weeks’ dealings with the police, the gravity of the matters admitted by her, the fact that she had not even been charged, the fact that the police had changed her status “dramatically” three times, the vagueness of the NFA letters, the vagueness and unreliability of her memory, the rerunning of lengthy interviews in January 2003 which Mr Lofthouse characterised as amounting to the coaching of a witness, the reliance by the Crown on legal professional privilege against full disclosure of the circumstances surrounding the CPS and police dealings with her and thus the absence of proper information as to the role and advice of the CPS. 31. In his ruling of 11 June 2004 the judge dealt very fully with all these submissions and the factual background to them. He set out that background, and referred to Schneider and Chan Wai-keung as guiding him in law. In particular he quoted Lord Mustill from the latter authority (at 202D) as follows: “Once the courts have taken the large step, as they undoubtedly have, of recognising that circumstances may justify the calling of a witness who stands to gain by giving false evidence, it becomes impossible to say that what happened in the present case was necessarily contrary to the proper conduct of the murder trial. What was required was that the potential fallibility of [the witness] should be put squarely before the jury, and this is what was done.” 32. So in the present case, the judge repeatedly warned the jury of the dangers implicit in Annamari Weeks’ evidence, treating her as an accomplice. Strong warnings both introduced her evidence and concluded his summing up. No complaint has been made of that or any aspect of the judge’s directions or summing up. 33. The judge also pointed out that Annamari Weeks’ situation was less obviously one in which she had an incentive not to tell the truth than that of an accomplice who had actually been charged with offences and was awaiting trial (contemplated in Schneider ). 34. The judge then dealt with three particular reasons why it had been submitted before him that this case was exceptional. The first was lack of full disclosure based on a claim for privilege. The judge, however, accepted the Crown’s assurance that full disclosure had been given, saying – “At this very early stage of the proceedings I have no reason to believe that there has not been full and proper disclosure given. In any event that matter can be and will no doubt be explored by defence counsel in cross-examination.” 35. Mr Lofthouse repeated before us the submission that there had been lack of disclosure on the ground of privilege. When we asked him to explain to us what disclosure had been lacking he was unable to give us chapter and verse. The court therefore gave him a few days after the end of the hearing to provide the necessary details. We said that we would suspend our refusal of leave for this ground of appeal pending that period. In the event, Mr Lofthouse was unable to assist us further. 36. Secondly, the judge dealt with the complaint of vagueness in the NFA letters. But that, said the judge, was merely reverting to the basic issue of the reliability of Annamari Weeks’s evidence, where all such matters would be before the jury together with the judge’s warnings. 37. Thirdly, the judge rejected as a matter of fact, as totally lacking evidence in support, the submission that Annamari Weeks had been coached by the police. 38. In our judgment, we agree with the single judge that the trial judge had fully considered the arguments raised for excluding Annamari Weeks’ evidence and that his reasoning could not be faulted. This ground of appeal raises no argument for reconsidering the judge’s exercise of discretion on appeal. Ground two: no case to answer 39. This ground of appeal was closely bound up with the same issue of the reliability of Annamari Weeks’ evidence, but for these purposes that evidence had already been given and had been tested in cross-examination. To a large extent, therefore, this ground of appeal traversed the same territory as ground one but for these purposes it was scrutinised under the principles contained in R v. Galbraith [1981] 1 WLR 1039 , 73 Cr App R 124 and R v. Shippey [1988] Crim LR 767. 40. The judge gave another careful and detailed ruling, on this occasion on 2 July 2004. He set out in detail the evidence that Annamari Weeks had given, taking care to confine himself exclusively to that which was relevant and admissible against the applicant (as distinct from David). The essence of that evidence has been set out above. He took into account, in addition to the defence points which had been made in the context of ground one, Mr Vere-Hodge’s submissions that in a number of important respects her evidence in relation to the applicant had changed; and that there was no independent evidence of the applicant’s presence or comments at the meetings at McDonald’s or the cricket pavilion. However, bearing all these points in mind, he nevertheless concluded that the jury could properly be satisfied that there was at least some form of agreement between David and the applicant to deal with killing Belinda and disposing of her body; and that the applicant lent his aid or encouragement to David on the night of 15/16 February pursuant to that agreement; and thus that the applicant was guilty of murder. 41. In our judgment, it is impossible to fault the judge’s ruling. It seems to us that he was right to say that the application was really an attempt to persuade him to usurp the function of the jury which was to determine whether the evidence of Annamari Weeks was reliable. He added that, having listened to her evidence for two and half days, he was left for himself with the clear view that her evidence was capable of belief. The jury should therefore be left to determine which parts of her evidence, if any, they should accept and which parts they should not accept. Finally, he said that he would have reached the same conclusion, that there was a case to answer, simply on the basis of the untruthful accounts given by the applicant when he was charged. 42. Mr Lofthouse also suggested, in a somewhat throw-away submission, that the judge had rejected the application on a mistaken basis of what could amount to complicity in murder: mere presence at a discussion and lack of protest, or mere complicity in the disposal of a body could not amount to murder. However, it is perfectly clear from the directions given to the jury by the judge in his summing-up, about which no complaint is made, that he was very well aware of what was needed for the applicant’s conviction on the charge of murder; and his ruling on the submission of no case to answer, albeit more briefly, reflects that same understanding. 43. In short, there is no arguable basis upon which this ground should go to appeal. Ground three: the evidence of Sarah Hughes-Brian and Terence Aitchison 44. Mr Lofthouse submitted that the retraction of their evidence, especially coming when it did, just before the final speech on behalf of the applicant, was nothing short of catastrophic. He accepted that, for good reasons or bad, the applicant had acquiesced in a joint trial; and that it was another question for the exercise of the judge’s discretion. However, he submitted that the evidence had a wholly unbalancing effect on the trial; the jury may have wrongly thought that, if Belinda was dead, she had been murdered; that it was totally unfair that the applicant, who had not even cross-examined these witnesses, should be tarred with the same brush that blackened David, who had called them; and that this went way beyond one of those risks which have to be suffered in joint trials and amounted to the effective loss of a fair trial for the applicant. There was therefore only one answer open to the judge, and he had come to the wrong one. 45. The judge, in the reasons which he gave on 26 July 2004, delivered a third careful and detailed ruling. It is not suggested that he erred in law or by omission or otherwise, simply that he had come to the wrong answer. He gave four main reasons for his conclusion. First, father and son had been quite properly jointly indicted, and any backlash from a co-defendant’s witness was just one of those things: as where a co-defendant’s alibi witness blows up on cross-examination. Secondly, the two witnesses had been called by David and not the applicant, whose case had already been closed: there was therefore no real danger of prejudice to him. Thirdly, if, which the judge did not accept, the applicant were in danger of being prejudiced by David’s case, then he would already have been gravely prejudiced by the admitted lies which David had had to accept, the detail of which it is unnecessary to set out here, but included fabrications of people being in contact with Belinda after her disappearance. Fourthly, the judge in any event concluded that any prejudice could be removed by a careful direction as to how the jury should regard the two witnesses’ evidence. We have already set out above the strong directions which the judge included in his summing-up. 46. In our judgment, these reasons cannot be faulted. The judge was fully justified in declining in his discretion to discharge the jury. There is no arguable case to the contrary to go to appeal. 47. For good measure, after the judge had heard of David’s post-conviction volte-face on the question of Belinda’s death that night, he added by way of postscript to his ruling a fifth reason: for if Belinda had already died, she could not have been seen walking down Purvis Gardens later that morning. The applicant’s new evidence merely underlines what to our mind is an additional fundamental difficulty with saying that the judge’s failure to discharge the jury on the basis of the witnesses’ truthful retraction of their evidence rendered the applicant’s trial unfair or his conviction unsafe. The new evidence 48. That brings us to the applicant’s new evidence. Mr Lofthouse submits that this is one of those possibly rare cases where a defendant’s own new evidence should be admitted, under the wide provisions of section 23 of the Criminal Appeal Act 1968 . Ultimately, the test under that section for receiving new evidence is if it is “necessary or expedient in the interests of justice to do so”. He cites R v. Criminal Cases Review Commission ex parte Pearson [1999] 3 All ER 498 for the relevant principles. There, an applicant was convicted of murder and her application for leave to appeal against conviction was dismissed. Some years later she asked the Home Office to refer her case to the court of appeal on the ground of diminished responsibility, a ground not put forward earlier but now supported by a psychiatric report. In due course her case was transferred to the CCRC. Under section 9 of the Criminal Appeal Act 1995 , which established the CCRC, it was not permitted to refer a case to the court of appeal unless it considered there was a “real possibility” that the conviction would not be upheld. The CCRC declined to refer on the ground that there was no likelihood of the court of appeal receiving the new evidence. The applicant sought judicial review. The divisional court’s judgment was given by Lord Bingham of Cornhill CJ. He held that the CCRC had rightly sought to anticipate whether there was a real possibility of the court of appeal receiving the new evidence, that there were no grounds for impugning its decision and that the application would therefore be dismissed. In the course of his judgment Lord Bingham referred to previous cases in which fresh evidence from the applicant himself had been considered. 49. Thus in R v. Richardson (1 February and 9 May 1991, unreported, see also R v. Arnold (1996) 31 BMLR 24 ) an applicant had given no evidence at trial and agreed that witnesses who might have assisted him should not be called. He had not been honest with his legal representatives at trial. McCowan LJ said: “On the one hand, this is a case of a man who has advanced an admittedly lying defence and it having failed now wants to try another one. The court is extremely reluctant to lend any assistance to that sort of purpose. Indeed it could only be in an exceptional case that it would do so. On the other hand, we have to consider whether there is a risk that by reason of his own stupid lies a miscarriage of justice may have occurred…” 50. The court there decided to receive the fresh evidence and thus allow the application. In the event a retrial was ordered. 51. In R v. Borthwick [1998] Crim LR 274 the judgment of this court was given by Waller LJ, who said: “The wording of s 23 poses the question right at the outset whether it is necessary or expedient in the interests of justice to admit evidence in this court. We are very much alive to the fact that this court must not allow evidence to be admitted at this stage simply in order to allow the defendant to run a different defence in front of a second jury, particularly a defence that he could well have run the first time around. But equally, if there was overwhelming or clear evidence to demonstrate that a defence of diminished responsibility would have succeeded and there was clear evidence that the mental illness itself was a cause of a decision taken to run such defences as were run, or putting it another way not to run the defence of diminished responsibility, then the interests of justice would seem to require possibly the substitution of a verdict of manslaughter but at least to order a retrial.” 52. Lord Bingham concluded (at 517) as follows: “From that lengthy recital of authority, it is plain that all applications to adduce fresh evidence under s 23 turn on their own peculiar facts…But the cases do identify certain features which are likely to weigh more or less heavily upon the reception of fresh evidence: for example, a deliberate decision by a defendant whose decision-making faculties are unimpaired not to advance before the trial jury a defence known to be available…But even features such as these need not be conclusive objections in every case.” 53. In the present case the applicant could always have presented the case which he now wishes the court to consider on this application. Moreover, such a case would have been consistent with the submissions made on his behalf and his own evidence at trial which were that Annamari Weeks was lying and had her own interests to pursue. Instead he preferred to lie to his legal representatives and to the jury about the charade that Belinda left her home alive that night. When David’s witnesses blew up in his face at the end of the trial and he was convicted, he at any rate recognised the need to admit to Belinda’s death and the disposal of her body. The applicant, however, at that time kept his cards very close to his chest. We do not know what preliminary instructions he gave to his legal representatives: we only know that he was plainly not willing to make a further statement until he had had the opportunity to consider matters in detail together with his legal advisers, including whatever further information might arise out of any possible recovery of Belinda’s body. If, like David, he had been willing to make a further statement at any time before the lodging of his notice of appeal, his trial legal aid would have extended to the representation he might have needed for the purposes of that statement. As it was, his new evidence only emerged at the last moment. The material cited above also makes clear that it was always possible that there would be no application to adduce any new evidence. 54. There is no credible explanation of why the applicant’s new case was not run at trial. It is simply said that a decision had to be made on the spur of the moment as to what to do with Belinda’s body; and that he, the applicant, had to consider what was best to do for his son. However, in circumstances where the new finger of accusation is levelled at Annamari Weeks and the applicant still seeks to exculpate his son, where in any event he did not know that his son was guilty of an attack on Belinda and says he still believes he did not, where he always wanted to call the police and was dissuaded from doing so by Annamari Weeks herself, it does not make sense that he persisted in his false account down to and throughout the trial. Once the body was in the shed, the participants had time to decide what to do. The applicant did not have to participate in the disposal of the body. Even if he did, it was not until 8 March 2002 that the disappearance of Belinda came to the attention of the authorities. There was time for him to consider his position. The obvious inference is that the applicant lied at trial and is lying again. 55. On the other hand the jury clearly thought that the evidence of Annamari Weeks was not only credible and reliable but satisfied them so as to be sure of the applicant’s guilt. While the case against David was the more formidable, the case against the applicant very largely rested on her evidence that there had been prior planning of Belinda’s death. It is submitted that her evidence of a discussion of murder at a McDonald’s restaurant – even though both the applicant and David were hard of hearing (of which there was evidence) – is an exceptional feature casting doubt on her credibility: but that was a typical matter for the jury to consider. 56. In our judgment the new evidence does not appear to be capable of belief and there is no reasonable explanation for the failure to adduce it at trial (see section 23(2)(a) and (d)). There are no exceptional features that lead us to think that, in the light of the applicant’s new case, his conviction may possibly be unsafe. In sum, we do not think that it is necessary or expedient in the interests of justice for the fresh evidence to be received. Therefore the application for leave to appeal based on the possibility that this evidence would be received is refused. Conclusion 57. We have concluded that none of the applicant’s proposed grounds of appeal supports the grant of leave to appeal. It was for these reasons that this application was refused.

```yaml citation: '[2006] EWCA Crim 1' date: '2006-01-11' judges: - THE RIGHT HONOURABLE LORD JUSTICE RIX - SIR JOHN ALLIOTT ```

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 1208 Case No: 202202182 A2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court at Bradford T20210337 Royal Courts of Justice Strand, London, WC2A 2LL Date: 07 September 2022 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE HOLGATE and MR JUSTICE MURRAY - - - - - - - - - - - - - - - - - - - - - IN THE MATTER OF A REFERENCE BY HER MAJESTY'S ATTORNEY GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 STEVEN PRIESTLEY Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Paul Jarvis appeared on behalf of HM Attorney General Adam Lodge appeared on behalf of the Respondent Hearing date : 1 September 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely by circulation to the parties’ representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2pm on 07 September 2022. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences with which we are concerned. No matter relating to those against whom the offences were committed shall, during their lifetime, be included in any publication if it is likely to lead members of the public to identify them as victims of the offences. There are two individuals to whom these provisions apply in this case. We shall refer to them as AB and CD. Introduction 1. On 23 March 2022 in the Crown Court at Bradford before HH Judge Rose and a jury Steven Priestley was convicted as follows: Count Offence 1 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 1.9.89 and 1.2.90 - AB 2 Indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960 – between 1.9.89 and 1.2.90 - AB 3 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 1.9.90 and 1.2.91 - AB 4 Indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960 – between 1.9.90 and 1.2.91 - AB 5 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - AB 6 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - AB 7 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - CD 8 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - CD 9 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.93 - CD 10 Indecent assault on a male person, contrary to section 15(1) of the Sexual Offences Act 1956 – between 5.4.92 and 25.9.94 - CD 11 Indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960 – between 5.4.92 and 25.9.94 – CD 2. On 13 June 2022 the offender was sentenced By HH Judge Rose to concurrent terms of imprisonment totalling 32 months. In relation to Counts 1, 3 and 6 to 10, the sentence on each count was 32 months’ imprisonment. In relation to Counts 2, 4, 5 and 11, the sentence on each count was 15 months’ imprisonment. 3. HM Attorney General seeks leave pursuant to Section 36 of the Criminal Justice Act 1998 to refer the sentence to this court as unduly lenient. At the conclusion of the hearing on 1 September 2022 we announced that we refused leave with written reasons to follow. These are the reasons for our decision. The Facts and the Indictment 4. AB was born in February 1985. CD was born in September 1984. They are cousins. When AB was aged between 4 and 8, he was sexually abused by the offender on occasions when he was at a house (not his own home) at which the offender was present. On at least three occasions, the abuse occurred in the presence of CD who was also at the house. CD was sexually abused by the offender when he was aged between 7 and 9 when he was at the same house at which the offender had abused AB. The offender was born on 25 March 1975. He was about 10 years older than AB and CD. 5. AB first made allegations of sexual abuse against the offender in 2003, namely about 10 years after the events about which he complained. The offender was arrested and interviewed. The offender denied the allegations. No further action was taken at that point. In 2019 CD made similar allegations against the offender. In January and February 2020 AB and CD provided ABE interviews to the police which formed the basis of the indictment against the offender. 6. Counts 1 and 2 referred to an occasion when the offender and AB were in the living room of the house. The offender took the penis of AB and put it into his mouth (Count 1). The offender also put his own penis into AB’s mouth (Count 2). AB recalled that this occurred when he was due to go to school on the following day. AB first went to school in September 1989. Thus, the count was framed to cover the first few months AB went to school up to his 5 th birthday. 7. Counts 3 and 4 referred to an occasion some months after the first occasion. AB recalled that he was 5 years old. The offender took AB to a bedroom in the house after he had played pornographic material on the television in the living room. Again, he took AB’s penis in his mouth (Count 3) and put his penis into AB’s mouth (Count 4). 8. Counts 5 to 7 related to four occasions on which the offender sucked the penis of AB when CD was present and when AB and CD were both at the house at which the offender was present. CD recalled that these occasions were after his grandfather had died, the date of the grandfather’s death being 6 April 1992, and before his 9 th birthday in September 1993. 9. On one of those occasions the offender also sucked the penis of CD (Count 9). There were two other occasions on which the offender sucked the penis of CD (Counts 7 and 8). AB was not present on those occasions. 10. Counts 10 and 11 reflected a specific incident which occurred in a bedroom at the house where CD was staying. The offender removed his own clothes. He stood in front of the door to the bedroom so that CD could not leave. He then forced CD onto the bed and touched his penis. The offender tried to get CD to touch his penis, but CD refused. 11. In the course of his ABE interview CD said that he stopped going to the house “after two years of (the offender) doing this”. Counts 10 and 11 were framed to cover a period of something over two years from the point at which CD’s grandfather died. 12. Save for Count 6 all of the Counts were single incident counts. Count 6 referred to two separate instances of sucking AB’s penis. There was no incident which could be said to have occurred on a particular day or date. The Sentence 13. The judge considered victim impact statements from AB and CD. CD read out his statement at the sentencing hearing. AB said that he had turned to drugs in his teenage years as a way of helping him block out the memories of being abused by the offender. He said that he has struggled to form relationships and that he felt internal anger. CD explained that the sexual abuse had had a massive impact on him. He remained traumatised by the memories of it. He had trouble connecting with friends and family. He had suffered depression and had had suicidal thoughts. 14. The pre-sentence report set out the offender’s account of his involvement with AB and CD. The offender continued to deny any sexual abuse of either of them and any sexual interest in children. Nonetheless, the author of the report did recommend participation by the offender in a sexual offender programme. The report assessed the offender as presenting a medium risk of re-offending. Were he to re-offend the risk of serious harm would be high. 15. The judge had a number of statements and letters from friends and acquaintances of the offender which spoke of his trustworthiness and of his care for others. The offender had been in employment for almost all of his adult life and had had at least two long term relationships. The offender had been convicted in 1998 of indecent exposure. He was otherwise of good character. He had suffered considerable trauma in his adult life. It is not necessary for us to set this out in any detail. The judge properly took it into account as a mitigating factor. 16. The judge made specific reference to the following when considering the appropriate overall sentence: • The offender’s age when he committed the offences, the offending having ceased in 1994. • The offender’s blame free and largely untroubled life since then, apart from two minor offences in 1998 for which he received a fine. • The principle of totality. • Annex B of the Sentencing Council Definitive Guideline for Sexual Offences and Forbes [2016] EWCA Crim 1388 . 17. The judge found that the offending did not involve significant planning and that there was no breach of trust in relation to either victim. However, both victims were vulnerable by reason of their extreme youth and both had suffered severe psychological harm. In relation to Count 1 he said that, by reference to the equivalent offence in the Sexual Offences Act 2003 (sexual assault of a child under 13), the offending fell into Category 1B in the Sentencing Council guideline. For an adult offender the starting point would be 4 years with a category range of 3 to 7 years. Noting that there were two victims and taking into account the number of offences committed over a period of time, the judge concluded that the appropriate sentence for an adult would have been 54 months. He reduced the sentence to 32 months to take account of the offender’s age imposing the same sentence concurrently on Count 3 and Counts 6 to 10, with concurrent sentences of 15 months on the remaining counts. The submissions of the parties 18. On behalf of the Attorney-General Mr Jarvis argued that the proper sentence for an adult who had committed these offences would have been significantly greater than 54 months. The proper sentence in relation to an adult for a single offence of indecent assault by reference to the equivalent offence in the Sexual Offences Act 2003 and the guideline for that offence had to fall in the range 3 to 7 years’ custody. Whilst the starting point in the guideline was 4 years’ custody, some account had to be taken of the fact that the maximum sentence for the offence of indecent assault in the 1956 Act was 10 years as opposed to 14 years for the offence to which the current guideline referred. Thus, it properly could be said that the least sentence for a single offence would have been 3 years. The overall sentence necessarily had to reflect that there had been multiple offences over a period of years committed against two different victims. An uplift of 18 months from the sentence appropriate for a single offence (which is what the notional adult sentence adopted by the judge involved) did not adequately reflect those factors. The adult starting point used by the judge based on the totality of the offending was outside the range of sentences reasonably open to him. Thus, the eventual sentence was unduly lenient. It is not submitted that the judge erred in discounting the sentence by around 40% to take account of the age of the offender when he committed the offences. However, the discount should have been applied to a much longer custodial sentence. 19. It is noted on behalf of the Attorney-General that the judge was not referred to and did not mention the case of Limon [2022] EWCA Crim 39 . It is argued that, insofar as there is tension between what was said in Limon and the principles set out in Forbes , the latter is to be preferred. Thus, any judge sentencing an adult for offences committed when they were a child needs only to conduct two historical inquiries. First, what was the maximum sentence for the offences committed by the defendant? Second, could the defendant have been made the subject of any form of custodial sentence if he had been convicted and sentenced at the time the offences were committed? So long as the defendant could have been sent to custody had he been sentenced as a child, the court would be free to impose any custodial sentence up to the maximum for the offence. 20. Mr Jarvis in oral submissions acknowledged that the absence of any reference to Limon by the judge in this case meant that the apparent tension between that decision and Forbes may not need to be resolved for the purposes of our determination of the Attorney-General’s application. Were it to remain a live issue and were there to be any departure from the reasoning in Forbes , a constitution of this court similar to that assembled in Forbes ought to consider the issue. 21. On behalf of the offender, it is submitted that, as the trial judge, HH Judge Rose was best placed to assess the level of harm and culpability. Whilst another judge might have taken a higher starting point for an adult who had committed these offences, the figure adopted by the judge in this case could not be described as so far outside the reasonable range as to render the eventual sentence unduly lenient. Discussion 22. In considering the appropriateness of the sentence imposed in this case we note first that the indictment (with one limited exception which referred to two incidents) charged single offences. Moreover, Counts 1 and 2 concerned a single incident as did Counts 3 and 4 and Counts 10 and 11. Thus, the judge in accordance with the jury’s verdicts on the indictment had to reflect 9 occasions of sexual abuse over a period which, by reference to the dates of the indictment, spanned the years between 1989 and 1994. In the final Reference, it was said that the offending “went on for years”. Insofar as this was intended to indicate that there was repeated and regular offending over the years, this is not a conclusion properly to be drawn from the jury’s verdicts. On the basis of the evidence of AB and CD it would have been possible to take one of two courses. First, the indictment could have charged additional counts e.g. two or more offences in each calendar year. Second, the indictment could have included multiple incident counts charging (for instance) at least 5 incidents in any given period. Neither course was adopted. The consequence of this in terms of sentencing was explained clearly at [30] to [34] in Forbes . Although this is not an instance of the court being prevented from any consideration of multiple offences, the way in which the indictment was framed means that we cannot consider the application on the basis of a regular course of conduct repeated month after month. 23. The second point to be made in relation to the indictment is that there was and is no proper basis upon which the judge could have concluded that the offender committed any offence after his 18 th birthday. In the final Reference it was said that in relation to Counts 7 to 11 the period of offending began in April 1992 when the offender was 18. Had that been correct we observe that the same argument would have applied in relation to Counts 5 and 6. In fact the argument is based on an arithmetical error. The offender was born on 25 March 1975. He did not reach his 18 th birthday until March 1993. Thus, for about 11 months of the indictment period in relation to Counts 5 to 11, the offender was 17. It is impossible to conclude from the jury’s verdicts on those counts that any of the offences charged had been committed at any particular point during the indictment period. By way of example the verdict in relation to Count 9 meant that on a day between April 1992 and September 1993 CD had been indecently assaulted. No further conclusion could be drawn from the jury’s verdict. 24. In his oral submissions Mr Jarvis accepted that the final Reference contained the arithmetical error to which we have referred. He drew our attention to the judge’s reference to “the fact that the last of those offences was committed in 1994”. Mr Jarvis tentatively suggested that this could be read as a finding of fact that at least one offence had been committed in 1994 when the offender was at least 18. The suggestion was only tentative and rightly so. The judge was referring to the last date on the indictment and no more. He made no finding of fact. He could not have done so given the way in which the indictment was framed and the evidence called in the trial. It follows that all of the offences could have been committed before the offender achieved the age of 18. In those circumstances, the only proper basis on which his sentence could and should have been imposed was that he was at all times under the age of 18. 25. By reference to these matters relating to the structure and nature of the indictment, we are not satisfied that the sentence of the judge was so far outside the reasonable range as to require us to interfere with it. It is accepted on behalf of the Attorney General that the judge was correct when he used the current guideline for sexual assault of a child under the age of 13 as the proper benchmark for the sentence to be imposed. Given that there were two victims and multiple offences, there had to be an uplift from whatever sentence after trial was appropriate for a single offence within that guideline. For the reasons advanced by Mr Jarvis, it is accepted that a single offence committed by an adult properly could have attracted a sentence of 3 years’ custody. Whatever overall period could be justified by the fact that there were nine separate incidents involving two different victims, there were mitigating factors to be considered before any allowance for the offender’s age at the time of the offences. The judge considered that they were of substantial effect. So do we. As submitted on behalf of the offender, another judge might have concluded that a longer overall sentence was required to reflect all of the offences. But we do not consider that the adult sentence identified by this judge fell outside the range of sentences reasonably open to him on the facts of the case. 26. The Attorney-General does not criticise the overall discount of 40% from the adult sentence to take account of the offender’s age at the time of the offences. We understand why that view is taken. Although the offending from April 1992 onwards occurred when the offender was 17 (in which event discounting the sentence for age by 40% would be very generous), what might be regarded as the most serious offending occurred when the offender was 14 or 15. Since we are not persuaded that the judge erred in setting the notional adult sentence at 54 months’ custody, it must follow that the eventual sentence of 32 months’ custody was not unduly lenient. So it was that we refused leave to bring the application pursuant to Section 36 of the 1998 Act. 27. Given this conclusion any tension there might be between Forbes and Limon falls away. It is not suggested that the judge in this case took an inappropriate approach to the issue of the offender’s age at the time of the offence. He made a significant reduction by reason of the offender’s age because the youth of the offender reduced his culpability to a substantial degree. That approach was in line with Forbes at [19] to [22]. 28. However, the Attorney-General has put forward the argument that Limon invites a different approach which is wrong in law and should not be adopted. Whilst we do not need to consider whether that is in fact the case, we have heard full argument on the point. Therefore, we propose to offer our observations albeit that they will be obiter. Should the issue arise in another case where the facts of the case mean that the issue is of real significance, it may be necessary to assemble a special court to consider the point. 29. In Limon the offender, when he was aged 14 to 17, had committed offences of indecent assault against a girl aged between 6 and 9. The offences had been committed between September 1993 and September 1996 though, on the evidence, it could not be shown that any offence had occurred after January 1995. At all material times the offence of indecent assault contrary to Section 14 of the 1956 Act was not one to which the grave crime provisions applied. Thus, a sentence of long term detention could not have been imposed on the offender had he been convicted at the time of the offences. Moreover, at the relevant time, the maximum period of detention in a young offender institution to which a person under 18 could be subject for an offence to which the grave crime provisions did not apply was 12 months. By reference to paragraphs 6.1 to 6.3 of the Sentencing Children and Young Persons Guideline (introduced with effect from 1 June 2017) the court in Limon concluded that it was not appropriate for the sentence in his case to exceed 12 months i.e. the maximum period of detention which could have been imposed at the time of the offending. The court referred in particular to paragraph 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. The court in Limon observed that this guideline had not been published at the time of the judgment in Forbes . The court in Forbes could not have applied the principles set out in the guideline. 30. The Attorney-General submits that this proposition is contradicted by a consideration of the Sentencing Guidelines Council Definitive Guideline entitled Overarching Principles – Sentencing Youths published in November 2009. Paragraph 5 of that guideline is not identical to paragraphs 6.1 to 6.3 of the 2017 guideline but the effect of the guidance given is precisely the same, in particular in the third and fourth bullet points of paragraph 5.2. Therefore, the rationale adopted by the court in Limon is not sustainable. Moreover, reference was made to the November 2009 guideline in Forbes at [22]. When sentencing an adult offender, the Youth Guidelines ….will not be generally applicable as they are predicated on the basis that the offender is still a youth. Their relevance in these circumstances is confined to the emphasis placed in each on the significance of immaturity at the time of the offending to the assessment of culpability. They are not relevant for any other purpose. It is argued that it was entirely open to the court in Forbes to apply the principles in paragraph 6.3 of the 2017 guideline because precisely the same principles appeared in the 2009 guideline to which the court referred. The court in Forbes deliberately chose not to do so. The question to be asked related to the maximum sentence for the offence at the time of its commission, not for the offender. 31. We accept that the relevant part of the earlier guideline would support the approach adopted in Limon . This point was made by the commentary on the decision in the Criminal Law Review: Crim LR [2022] 419. But the relevant part of the earlier youth guideline was not referred to in Forbes . The court said that the youth guideline when sentencing an adult offender would not generally be applicable “as they are predicated on the basis that the offender is still a youth”. This cannot be correct in relation to paragraph 5. It refers in terms to an offender attaining the age of 18 and the approach to be taken to such an offender. Thus, that part of the guideline is not “predicated on the basis that the offender is still a youth”. Paragraph 5 was relevant to the issues which arise when sentencing an adult for something they did as a child. 32. As was explained in Limon , whilst the principles set out in the guideline (whether the SGC guideline or the current youth guideline) usually will apply when the offender is a young adult who has recently crossed the relevant age boundary, there is no reason in logic why they should not apply when many years have passed between the offending and the date of sentence. Mr Jarvis accepted that logic did not require a distinction between a young adult and a much older person. He argued that it was an issue of pragmatic sentencing policy. He pointed to the potential difficulties in identifying maximum sentences for a young offender when the legislative regime changed more than once in 1980s and 1990s. We observe that similar difficulties arise by reference to the not infrequent changes to maximum sentences for sexual offences over the same period. Those are difficulties with which, by reference to Forbes , judges in the Crown Court have to grapple on a regular basis. There is no reason why they should not do so in relation to sentences available for those under 18 at different times. 33. In our view as a general rule logic should prevail over pragmatism unless there are compelling reasons to the contrary. Changes to the legislative regime may introduce complications which are acute in particular cases. Where the complications are intractable, it may be that a pragmatic solution has to be adopted. That is no reason to abandon logic for all cases. 34. Consideration of the second enquiry sanctioned as appropriate by Forbes supports the argument based on logic. This enquiry involves asking whether the offender at the relevant time could have been made the subject of any kind of custodial sentence. The particular example in Forbes is BD at [102] to [124]. It is clear that the court when considering BD had to investigate whether at the time of the offending (1968 to 1971) an offender under 14 could be subject to any form of custodial sentence. 35. We reject the view advanced by Mr Jarvis that Limon was per incuriam because of its departure from Forbes . In Forbes the reference to the youth guideline indicates that the court had not considered paragraph 5.2 of that guideline. Had the court done so, it could not have said that the guideline was predicated on the basis identified. We consider that the guidance in Forbes was designed to prevent a court dealing with historic sexual offences being required to consider the general level of sentencing current at the time of the commission of offences many years before. That is not the exercise in which the court engaged in Limon . The agreed position in that case was that the maximum sentence which could have been imposed on the offender by reference to the provisions of Section 1 B of the Criminal Justice Act 1982 (had he been sentenced at the time of the offences) would have been 12 months’ detention. Taking account of that legislative position did not involve any qualitative departure from the principles in Forbes . 36. It is not for us to speculate what the position would have been had the judge in this case taken the approach suggested in Limon . There has been no appeal against the sentence. What is certain is that the provisions which led to the reduction of the sentence in that case did not apply until October 1992. Thus, the legislative position in relation to this offender was significantly different to that which applied to the appellant in Limon .

```yaml citation: '[2022] EWCA Crim 1208' date: '2022-09-07' judges: - LORD JUSTICE WILLIAM DAVIS ```

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: 200701667 C3 Neutral Citation Number: [2007] EWCA Crim 2247 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 7th September 2007 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE DAVIS MR JUSTICE UNDERHILL - - - - - - - - - - - - - - - - - - - - - R E G I N A v S - - - - - - - - - - - - - - - - - - - - - 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 OWEN appeared on behalf of the Appellant The Crown was not represented - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: David Shaw renews an application for permission to appeal following refusal by the single judge. In November 2006 he and a co-accused, Luke Hutchison, stood trial at Nottingham Crown Court before His Honour Judge Head and a jury on an indictment containing two alternative counts of arson. The first count charged them with arson being reckless as to whether life was endangered. 2. The particulars were that on 14th April 2006 without lawful excuse they damaged by fire a dwelling house belonging to Anthony Wright, intending to destroy or damage such property or being reckless as to whether such property was destroyed or damaged, and being reckless as to whether the life of another would thereby be endangered. Count 2 charged them with simple arson in relation to the same property. Both defendants pleaded not guilty to both counts. 3. At the end of the trial the jury by a majority found Hutchison guilty on count 1 and no issue arises in relation to him. The jury also found this applicant guilty by a similar majority on count 1, but they took longer to reach their verdict and before doing so they returned an unanimous verdict that he was guilty on count 2. How this came about will shortly be described. The judge treated the jury's verdict on the lesser alternative as subsumed within its verdict on the greater one and sentenced him for a single offence, namely reckless arson. 4. The applicant does not seek to challenge his conviction or sentence on count 1. However, he does seek leave to appeal after refusal by the single judge on the basis that there has been an irregularity in that he has received a double conviction on alternative counts, although no penalty was imposed on count 2. This has given rise to an interesting argument, but first the course of events at the trial needs to be explained in a little more detail to understand how the situation arose. 5. The facts giving rise to the charges are immaterial. No criticism is made of the summing up. The judge began by explaining the ingredients of count 2. He went on to explain that count 1 was a greater charge because it contained an important additional ingredient. If the jury was, in the case of a particular defendant, unsure that he was guilty on count 2, then he would automatically be not guilty on count 1, because count 2 was a necessary part of count 1. If, however, the jury found a particular defendant guilty on count 2, then they would have to go on and consider whether he was guilty of the graver offence under count 1. All of this was spelled out for the jury with great clarity. The judge also explained that they would be asked first to deliver their verdicts on count 1. If the verdict on count 1 in respect of a particular defendant was guilty, then because, in the judge's words, count 2 was "part of count 1" they would not be asked for a separate verdict on count 2. If they were sure of guilt on count 2 but not count 1, then the verdict would be not guilty on count 1 but guilty on count 2. The judge suggested that in their deliberations they should approach the counts in reverse order. 6. The jury retired on Thursday 9th November 2006 at 11.34. The trial had begun on the previous Monday morning. They were still deliberating at the end of the day. At 15.50 the jury were given a majority direction. At 16.19 they were sent home overnight. They resumed their deliberations on the Friday morning at 10.24. The jury returned at 13.12. In the case of Luke Hutchison, who was the first defendant on the indictment, they announced that they found him guilty on count 1 by a majority. The following exchange then took place: "CLERK: In respect of David Shaw on count 1 of arson being reckless as to whether life was endangered, has a verdict been reached on which at least ten of you are agreed? FOREMAN: No. JUDGE: Put count 2. CLERK: In respect of David Shaw on count 2 of arson, has a verdict been reached on which at least ten of you are agreed? FOREMAN: Yes." 7. Mr Owen who appeared for the applicant before this court, as he appeared at the trial, makes no criticism of what took place up to that point. He accepted that it was reasonable for the judge to try and find out how far the jury had reached in their deliberations, given that they had now been considering the matter for a lengthy time. If matters had stopped there it would, of course, have been obvious to everybody concerned that the jury must have decided that the applicant was guilty on count 2, because if they had reached a verdict of not guilty on count 2, following the judge's directions they would automatically have concluded that he was not guilty on count 1. 8. The problem arises from the next question. The proceedings continued as follows: "CLERK: Do you find the defendant guilty or not guilty on count 2? FOREMAN: Guilty. CLERK: Guilty. Is that the verdict of you all or by majority? FOREMAN: All of us." The judge then went on to address the jury as follows: "I shall not ask you in respect of Luke Hutchison to produce a verdict on count 2 because, as you have appreciated, it is, as it were, within count 1. I address myself to you as chairing this jury. As you know, you have had 7 hours 22 minutes of deliberation. In respect of David Shaw on count 1, is it your sense that given some refreshments now and some more time that there is any reasonable prospect of you reaching a verdict, albeit a majority verdict, on count 1 in respect of David Shaw? FOREMAN: Yes." The judge therefore invited the jury to retire and continue their deliberations. At 14.26 the jury returned to find the applicant guilty on count 1 by a majority of 10 to 2. 9. The case was adjourned for sentencing to 21st January 2007. At the end of his sentencing remarks the judge said: "In respect of David Shaw on count 2 there is no separate penalty. That is clearly not a separate matter. It has been subsumed into the later conviction by the jury on count 1." The court log in relation to count 2 records the applicant's plea as not guilty, the verdict as guilty, and in the column recording the court's sentence or order the log records: "No separate penalty. This count to be subsumed into count 1 and the defendant be regarded as having only one specified count for this offence". 10. Mr Owen submits that there has been an irregularity which this court should now correct. The irregularity arises from the jury being asked specifically whether they found the applicant guilty on count 2 and their answer that they did. He submits that this has now given rise to a conviction on two alternative counts and that the conviction for the lesser count remains on the record. It ought therefore to be quashed. 11. The single judge refusing leave to appeal said: "You were convicted of two offences arising out of the same incident. Count 2 is, as stated by the judge, subsumed in count 1, the more serious offence. The convictions must therefore rank as only one for any future consideration of 'specified violent offences'. No separate penalty was imposed nor could it have been. The 'double conviction' by the jury does not render either unsafe." Mr Owen submits that the double conviction on alternative counts is in itself an irregularity that should be corrected. His practical, as distinct from his academic, concern is that the applicant's printed antecedents now show him as having been convicted of two offences of arson. 12. We were referred by Mr Owen in his written and oral submissions to a number of authorities, including Cummerson [1968] 2 QB 534, Hill [1992] 96 Cr.App.R 456 and Fernandez [1997] 1 Cr.App.R 123 . It is well established that where a defendant is charged with alternative counts he should not be convicted of both. That principle applies not only where the alternatives are mutually exclusive but also where the more serious offence necessarily includes the lesser alternative. It not infrequently happens, of course, that a defendant charged with alternative offences may plead guilty to the lesser alternative. The prosecution and the judge are not bound to accept that plea as determinative of the full extent of the offending. If the prosecution proceeds on the greater charge, the unaccepted plea to the lesser offence is treated in the meantime as not amounting to a conviction. If the defendant is in due course found guilty of the greater offence, he will therefore be convicted on that count alone, notwithstanding his earlier entry of a plea of guilty to the lesser offence. If the defendant pleads not guilty to both the greater and the lesser counts, the proper course is not to ask the jury to announce whether they find the defendant guilty on the lesser count until they have announced their verdict on the greater. If the jury finds him guilty on the more serious count, the alternative becomes redundant. 13. But what happens if, for some reason, the jury does announce its verdict on the lesser count before doing so on the greater charge? That question was addressed by this court in Fernandez . In that case the defendant was charged with a number of offences, including robbery on count 3 and handling stolen goods on count 5, the latter count being an alternative to count 3. After the jury had been out for a number of hours, they were asked whether they had reached verdicts on which they were all agreed on any counts. They answered that they had reached unanimous verdicts on all counts except counts 3 and 4. They were then asked, without anybody objecting, to deliver their verdicts on the counts where they had reached decisions. These included a guilty verdict on count 5, the count of handling stolen goods. Overnight, counsel for the prosecution realised that this had been an irregularity because the jury had yet to reach a verdict on the more serious alternative contained in the robbery count. The judge in those circumstances directed the jury that as a matter of law he could not accept their verdict on count 5 until he had received their verdicts on count 3. In due course, the jury convicted the defendant of robbery. 14. He appealed to this court on the ground that once the jury had convicted him of the lesser alternative on count 5, the judge ought to have discharged the jury from giving a verdict on the more serious charge. That argument was rejected. Giving judgment, Hobhouse LJ said at page 133: "Where a jury is allowed inappropriately to return a verdict on a count in the indictment which has only been included in the indictment as an alternative to other more serious counts, the verdict in respect of the alternative is irregular. The judge is under a duty to take from the jury, and the jury entitled to give, their verdicts upon the more serious counts. If a verdict is prematurely returned on an alternative count before the jury have given their verdict or been discharged from giving their verdict upon a more serious count, the judge should decline to accept the verdict on the alternative count. If he accepts it, it should ordinarily be quashed on appeal as occurred in Hill and Sinnott , unreported December 16th 1994." 15. An important point which emerges from that decision is that this court did not regard there as having been a conviction on count 5 merely because the jury had returned a verdict of guilty on count 5, anymore than there would have automatically been a conviction on the lesser count merely because the defendant entered a plea of guilty to the lesser count. Accordingly, in this case the proper course for the judge would have been to make it clear to the parties that he was not accepting the jury's verdict on count 2 as itself constituting a conviction on count 2 pending their decision on count 1. It may indeed be that that is what the judge intended. We do not suggest that it would have been necessary for the judge to have explained the technicalities of the matter to the jury. That would merely have held up their deliberations on count 1. But the formal position ought to have been made explicitly clear so that the parties and court officials responsible for recording the proceedings knew exactly where matters stood. 16. Although it may well be that the judge did not intend there to be a conviction accepted by the court by reason of the jury's verdict on count 2 until the entire proceedings had been concluded (and that is certainly one reading of his subsequent remarks about the verdict on count 2 being subsumed within count 1), we have to accept that there is at least an ambiguity in what occurred. Certainly the single judge, in the comments to which we have referred, understood there to have been what she referred to as a "double conviction". It would be unfortunate for the matter to be left in a state of confusion. 17. During the course of this hearing the case lawyer contacted the Crown Prosecution Service. They have indicated in writing that there is no Crown objection to the quashing of count 2. In all the circumstances, we think that the safe course is to treat there as having been formally a conviction on count 2, whether the judge actually intended that or not. In those circumstances, we give leave to appeal and quash the conviction on count 2. That will leave the matter free of any possible doubt. 18. Thank you very much, Mr Owen. It follows also from the granting of leave that you should have a representation order. 19. MR OWEN: I am grateful.

```yaml citation: '[2007] EWCA Crim 2247' date: '2007-09-07' judges: - LORD JUSTICE TOULSON - MR JUSTICE DAVIS - MR JUSTICE UNDERHILL ```

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: 201101614 A8 Neutral Citation Number: [2011] EWCA Crim 1975 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 22nd July 2011 B e f o r e : MR JUSTICE CALVERT-SMITH HIS HONOUR JUDGE STEPHENS QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - R E G I N A v KISHOR DOSHI - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr A Rutter appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T 1. JUDGE STEPHENS: On 7th February 2011 at the Crown Court at Newcastle upon Tyne, the appellant pleaded guilty to count 2 of an indictment charging him with failing to register with a supervisory body or approved professional accountancy body. On 9th February, he was convicted on count 1 of the same indictment, namely of an offence of prejudicing an investigation contrary to section 342(2) of the Proceeds of Crime Act 2002 . 2. On 11th March 2011, he was sentenced by Mr Recorder Kershaw to 18 months' imprisonment on count 1. On count 2 he was disqualified from being a director of a company for six years and no further penalty was imposed. He appeals against sentence by leave of the Single Judge. 3. Dealing first with count 2, the facts may be stated in this way. The appellant was director of a company providing accountancy and taxation services based in Sunderland. Under the Money Laundering Regulations, he was obliged to register the company with Her Majesty's Revenue and Customs on something called the Accountancy Services Providers' Register, which was established in April 2008 and brought into force in October of that year, when notices were published allowing business an extension to register by 31st December 2008. In March 2010, the intention of imposing financial penalties was announced. The appellant had been providing accountancy services for many years but did not attempt to register until the day he was charged. He said that he was ignorant of the requirements. 4. Turning to count 1, the appellant was acting as a tax adviser to one Bewick. In 2011, Mr Bewick was prosecuted for cheating the Revenue and his tax affairs were under investigation from December 2007 to early 2010. An agreement was reached as to unpaid tax in February 2011. 5. In September 2009, the Economic Crime Unit began an investigation into Mr Bewick. They suspected that he had contravened the Private Security Industry Act 2001 and that he had also committed money laundering offences. 6. On 2nd November 2009, the police obtained a production order under the Proceeds of Crime Act 2002 . The order required this appellant's company to produce all business records, accounts and correspondence concerning Mr Bewick's financial transactions. 7. On 3rd November 2009, the appellant went into his office. The production order was on his desk. He read the order. He then telephoned Mr Bewick and a legal adviser of Mr Bewick informing them of the making of the order; subsequently telephone billing records showed that he had spoken to Mr Bewick for 20 minutes on that day. 8. At half past eight the following morning, the appellant himself rang the police and told them what he had done and that he had informed Mr Bewick about the production order. The police attended his office and he produced all relevant paperwork. In interview, he said he had not fully read the order. He said he believed that it related to ongoing negotiations with Her Majesty's Revenue and Customs and did not know they related to a police investigation. That apparently was his defence when he pleaded not guilty to this charge, but the jury understandably took little time to convict him. 9. The appellant is 60 years of age. In 1981 he had been fined for handling stolen goods. In 1985 he went to prison for 18 months for offences of handling and forgery. He told the writer of the pre-sentence report that was before the court that these current offences were committed in ignorance of his legal obligations. He had several medical conditions that required regular treatment. 10. The pre-sentence report writer proposed a suspended sentence in view of what was said to be a low risk of re-offending. 11. A letter from the appellant's doctor set out several conditions from which he was suffering, including kidney disease, type 2 diabetes and hypertension. 12. The Recorder, in sentencing, referred to the appellant's long term dealings with Mr Bewick, who he described as a determined and persistent tax cheat, a fact well-known to the appellant, he said. He observed that the appellant, knowing of his client's previous crimes, had chosen to involve himself deeper in his activities. The Recorder concluded that, by tipping off his client about the production order, the appellant was likely to have caused substantial prejudice to the inquiry. He said this in passing sentence: "The object of the sentence is to protect the public from serious crime by doing what is necessary to ensure that production orders are treated seriously as confidential between the police and the subject of the order." The Recorder said he took into account the appellant's age and the long period of time since his earlier convictions, but he considered that he had shown no remorse. 13. Counsel on behalf of the appellant submits that the prosecution did not point to any actual prejudice caused by the appellant's actions, nor was there any contention by the prosecution that the appellant's relationship with Bewick was generally corrupt. A report from Durham Prison by a doctor, dated 30th June of this year, states that the appellant's various medical conditions are in fact being managed perfectly satisfactorily in the normal way and that the appellant is compliant with treatment. Nevertheless, says Mr Rutter, both the 18 month prison sentence and the six year disqualification are excessive. 14. So far as the prison sentence is concerned, we agree. The point that needed to be made is that production orders made by the court must be respected and the requirements imposed upon recipients of such orders must be faithfully carried out without disclosing to potential launderers the details of what investigations are underway. 15. The point is made in our judgment by the severe punishment of a prison sentence. We do not, however, consider that a sentence as long as 18 months was necessary in the circumstances of this case. In our judgment, a sentence of 12 months' imprisonment would meet the requirements of justice and due punishment for this offence. 16. So far as disqualification is concerned, we are also persuaded that a period of six years is manifestly excessive in the circumstances of this appellant's wrongdoing. He is 60 years of age and his failures in the field of company law do not merit such a long period. In our judgment, again, the justice of the case would be met by a period of four years disqualification and to that extent his appeal succeeds.

```yaml citation: '[2011] EWCA Crim 1975' date: '2011-07-22' judges: - MR JUSTICE CALVERT-SMITH - HIS HONOUR JUDGE STEPHENS 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: 200401993 A2 Neutral Citation Number: [2004] EWCA Crim 2099 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 22nd July 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE NELSON MR JUSTICE MCCOMBE - - - - - - - R E G I N A -v- DANIEL LEE ROGERSON - - - - - - - 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 K THOMAS appeared on behalf of the APPELLANT MISS J TAYLOR appeared on behalf of the CROWN - - - - - - - J U D G M E N T Thursday, 22nd July 2004 1. LORD JUSTICE ROSE: On 9th October 2003, at Lancaster Magistrates' Court, this appellant pleaded guilty and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 and also under section 6 of the same Act in relation to certain motoring offences. 2. On 24th February 2004, at Preston Crown Court, the appellant pleaded guilty before Morland J to an offence of manslaughter in relation to the motiveless killing of an elderly man in his own garden. In relation to that offence, the judge made a hospital order under section 37 of the Mental Health Act 1983 , together with a restriction order, unlimited in time, under section 41 of the same Act. 3. The other offences in relation to which the appellant had been committed to the Crown Court by the magistrates for sentence were of dangerous driving, driving with excess alcohol and failing to stop after an accident. 4. In relation to dangerous driving, the learned judge passed a sentence of 21 months' detention in a young offender institution. In relation to driving with excess alcohol, he passed a concurrent sentence of five months' detention in a young offender institution. In relation to failing to stop after an accident, he imposed no separate penalty. The learned judge also, in relation to the driving offences, disqualified the appellant from driving for a period of five years, and further ordered that, before he drove again, he undertake a driving test. On 19th March the last of those orders was amended so that the appellant should take an extended driving test. 5. He appeals against sentence by leave of the single judge. 6. It is unnecessary to rehearse the facts in relation to any of these offences. The reason for the appeal is this. Although it is conceded that it was lawfully open to the learned judge to pass, as he did, sentences of detention on the same occasion that he made the hospital order to which we have referred, it is a matter of obvious impracticability for an order made under the Mental Health Act and a sentence of custody to be simultaneously carried out. A sentence of custody takes effect from the day on which it is passed, and that clearly, in practical terms, was inconsistent with the terms of the order that the defendant should be transferred to a mental hospital forthwith. 7. So, despite the lawfulness of the sentences which were passed, this court has no doubt that it was, in practical terms, an inappropriate course for the judge to pass the sentence of detention which he did. Accordingly, the sentences of 21 months and 5 months' detention are quashed and no separate penalty is imposed in relation to the offences of dangerous driving and driving with excess alcohol, save that the orders made by the learned judge in relation to disqualification and for an extended driving test will remain. To that extent this appeal is allowed. 8. MR THOMAS: My Lord, I am expressly asked to mention the question of defence recovery costs. 9. LORD JUSTICE ROSE: Who are you hoping to recover them from, Mr Thomas? 10. MR THOMAS: I am not, my Lord, but the Registrar sent a direction to that effect to chambers. I cannot see that it can possibly have any effect at all because it cannot be recovered from -- 11. LORD JUSTICE ROSE: Had you not mentioned it, Mr Thomas, we had no intention of making a recovery of defence costs order, and, despite the fact you have mentioned it, we still do not make any such order. 12. MR THOMAS: I am grateful my Lord. I had to do it, I am sorry.

```yaml citation: '[2004] EWCA Crim 2099' date: '2004-07-22' judges: - LORD JUSTICE ROSE - MR JUSTICE NELSON - MR JUSTICE MCCOMBE ```

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 1575 No: 201901404/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 12 September 2019 B e f o r e : LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE MARTIN SPENCER R E G I N A v HARRY GOODMAN Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Miss A Byrnes appeared on behalf of the Appellant J U D G M E N T (Approved) MR JUSTICE MARTIN SPENCER: 1. This is an appeal brought with the leave of the single judge against a sentence of 32 months' imprisonment imposed by His Honour Judge Spragg in the Crown Court at Newcastle-upon-Tyne on 15 March 2019 for a single offence of being concerned in the supply of a controlled drug of class A, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant, born on 5 April 1998, pleaded guilty at the first opportunity on 11 July 2018. The reason for the delay between the date of conviction and the date of sentence was because the appellant's case awaited the outcome in relation to co-defendants. 2. The basis of this appeal is that the sentence reached by the learned sentencing judge before credit for plea was applied, namely four years' imprisonment, was too high and failed adequately to distinguish between the role of this appellant and the role of his co-defendants and that the learned judge was wrong in effectively treating all the three defendants (to whom we shall refer in due course) in the same way. It is submitted that the learned judge should have alighted on a sentence of two years or less and having done so the sentence should have been suspended. 3. The facts of this matter are that in the second half of 2017 undercover officers were engaged in the investigation of the supply of class A controlled drugs in Newcastle City Centre. Drugs were being supplied in association with the night life of the city which revolved around clubs and other licensed premises in the vicinity of the Cathedral. These clubs were supported by promotion companies which organised theme nights held throughout the week and the events were publicised by the promotion companies through social media, targeting in particular the young student population of the city. There were apparently seven such companies operating in Newcastle and the promoters had invitation lists for particular individuals, so as to ensure that the venues were busy and to encourage a feeling of exclusivity. 4. The appellant was a junior manager for one of these promotion companies. He was also a student at the university. His job was to stand outside one of the clubs on a Monday night and persuade customers to come in. 5. The undercover operation was a lengthy one involving many other defendants apart from the appellant. On Monday 18 September 2017, two undercover officers known as 'Kim' and 'Sarah' went to a club called Florita's. Outside the club they spoke with the appellant who was working there and asked him if he knew anyone from whom they could purchase drugs and he provided a phone number which was listed in his contacts as "coke". He asked them to take a screen shot of another number which was listed in his phone as "coke 2". He told them to ring the coke number and they would be met at the bus stop around the corner. 6. At 11.50 pm that night the undercover officer Sarah rang the number provided by the appellant and ordered two bags of cocaine which she was told would be £50 each and there would be a 15-minute wait before the drugs would be delivered in a black Vauxhall Corsa. The drugs were then delivered by one of the co-defendants, Sean Moulding, who called himself 'John'. He told Sarah to get into the car, saying he was conscious of the CCTV in the area. She got into the back of the car which drove off for about 100 yards, while Sean Moulding told the officers he was available to supply drugs up to 2 am on weekdays and 4 am on weekends. He supplied them with two bags of cocaine containing respectively 353 and 392 milligrams. 7. There were further exchanges of messages between the undercover officers and Paul Moulding on 24 and 26 September, and further drugs were supplied. Then on 2 October at 9.20~pm, the officers again went to Florita's where the appellant again was working. There was a conversation about the phone numbers of cocaine dealers previously supplied by the appellant to the officers and the appellant stated that the first number was the more reliable one; the second one was for a different dealer. The appellant told the officers that he was getting sorted from a mate who offered cheaper rates but he gave no further details at that stage. The undercover officer Sarah then contacted Paul Moulding and he supplied her with £50 worth of cocaine, again using the black Vauxhall Corsa motorcar. 8. There was a further supply of drugs on 11 October 2017 on which occasion the officers were met in a blue Nissan Qashqai driven by another co-defendant, Daniel Young. He told them he was a mate of Paul Moulding and that he might be working on Saturday. He supplied two plastic bags containing cocaine in exchange for £100. 9. On 17 October Sean Moulding supplied the undercover officers with £50 worth of cocaine from a white Fiesta motorcar. 10. On 25 October 2017 the officers tried the "coke 2" number but the call was diverted to voice-mail. Officer Sarah then received a text message asking who it was. She explained she got the number from Harry, whereupon "coke 2" replied asking her to get Harry to confirm that he gave her the number. So on 30 October the officers went back to Florita's and spoke to the appellant asking him to contact "coke 2", but he declined saying that "coke 2" often did not answer and he suggested that Sarah take down another number stored in his phone as "DD Kev". They were then later supplied with two bags of cocaine by Kevin Ashong who told them that he was available any time. There were further supplies of cocaine to the officers through Kevin Ashong through November and December 2017. 11. In addition, Paul Moulding sent out advertising messages so that on 22 September he texted "Charlie, MDMA and pingers let me know if anyone needs" and that was sent out to 21 different telephone numbers. This instigated over 400 drugs related messages exchanged between the Mouldings, Young and others on 30 September and 1 October 2017. 12. The appellant was arrested on 18 December 2017. In addition search warrants were executed at the homes of Paul and Sean Moulding. Paul Moulding was found in possession of eight packages of MDMA, two mobile phones and £1,300 in cash. Sean Moulding had a bag containing 339 milligrams of cocaine, a mobile phone and £310 in cash. A co-defendant, Kamar Hussain was arrested at the same time as Sean Moulding and a plastic pot containing five packages of skunk cannabis were found in his bedroom. A search warrant executed at a third address frequented by the Mouldings yielded 17 Ecstasy tablets, skunk cannabis, a quantity of MDMA, cocaine and other drug dealing paraphernalia. 13. The appellant was interviewed after his arrest and he immediately admitted passing the drug dealer numbers to the undercover officers. He did not ask for legal representation when interviewed by the police and he submitted his phone for analysis. 14. At the hearing the role of the appellant was characterised very differently by the prosecution and the defence in the course of their submissions to the learned sentencing judge. Counsel for the prosecution submitted the appellant was playing a leading role, asserting that he was "directing, organising, buying and selling on a commercial scale". Counsel said: "He has substantial links to and influence on others in the chain and he used his business as a cover. He provided facilitated contact between the undercover officers and the co-accused street dealers in the autumn of 2017." 15. Counsel for the appellant below submitted that the appellant was himself a purchaser of drugs, but also supplied the undercover officers with the numbers of those from whom he purchased. It was not accepted that the club was simply being used by the appellant as a cover for the supply of drugs. It was submitted that it was obvious from the undercover recordings and the statements of the undercover officers that the appellant played no part in how much was ordered, what the price was, where the location was and in any future contact. Those submissions have been renewed before us by Miss Byrnes. 16. He was portrayed below as a naive young man who in the drugs culture prevalent in Newcastle at the time did not appear to think that he would even be doing anything wrong. He asserted in interview that he was not a dealer. It was submitted that his role was a lesser one, or alternatively straddled the border between a lesser role and a significant role for the purposes of the definitive guideline on sentencing in drugs cases. It was submitted he was certainly not in a leading role as had been submitted by the prosecution. 17. In sentencing the appellant the learned judge accepted the submissions on behalf of the appellant in part but not wholly. He said: i. "I do not accept that the Crown have shown me enough to suggest that you were in a leading role, as you were not directing or buying and selling on a commercial scale and there is no evidence that you have substantial links to others in the chain, or for example that you were making substantial financial gain. You have, however, clearly played a significant role in this street dealing, providing numbers for those who wished to purchase Class A drugs and facilitating contact. There is no doubt that that is an operational role putting you squarely in the significant role category. You must have had some awareness of the scale of the operation and you were motivated by other advantage, if not financially in your role as a promoter for the club." 18. The learned judge thus placed the appellant within Category 3 of the definitive guideline with a starting point of four-and-a-half years' custody and a range from three-and-a-half to seven years' custody. 19. In sentencing the appellant, the learned judge said that in his view there was little reason to distinguish the appellant from the dealers as "without you they would not have had the customers." He said that: i. "... weighing up all the aggravating and mitigating features, the sentence [after a trial] would have been four years ... " 20. This was reduced to 32 months as the appellant was entitled to full credit having indicated a guilty plea at the earliest stage. 21. So far as the co-accused Sean Moulding was concerned, the learned judge also reached a sentence of four years' custody had there been a trial and after taking into account the aggravating and mitigating features in his case. He was entitled to only 25 per cent credit, thereby reducing the sentence in his case to three years' imprisonment. 22. The learned judge adopted the same approach in relation to Paul Moulding, but as Paul Moulding faced a cannabis charge which merited a consecutive sentence, the sentence for count 1 was reduced in his case to reflect the principle of totality. His overall sentence was three years and four months' imprisonment. 23. So far as Daniel Young was concerned, he pleaded guilty to count 1, conspiracy to supply class A drugs, namely cocaine, with Sean and Paul Moulding. His basis of plea was that he accepted supplying the undercover officers on one occasion only on 11 October 2017, and although he accepted sending messages to Paul Moulding on 30 September and 1 October he had not in fact supplied any drugs, but had simply, he said, sent the messages in the hope of impressing Paul Moulding. He was at home at the time and accepted supplying friends who were at home with him on 30 September. On the basis of that plea the learned judge considered that the sentence after trial for him would have been 33 months' imprisonment, which was reduced to 22 months after credit for plea. That sentence being less than two years was suspended by reference to the imposition guideline. 24. It is submitted by Miss Byrnes on behalf of the appellant that the learned judge was wrong in effect to treat him on a par with Sean and Paul Moulding. Thus in contradistinction to Sean and Paul Moulding the learned judge accepted that the appellant had not gained financially from his actions whilst it was clear that Sean and Paul Moulding were involved in an enterprise of supplying and selling class A drugs, as well as cannabis, on a commercial basis. 25. In written submissions on behalf of the appellant made by counsel who appeared below, it had also been submitted that the learned judge had failed to apply the sentencing guideline in relation to the reduction in sentence for a guilty plea. That guidelines state as follows: i. " Factors such as admissions at interview, co-operation with the investigation and demonstrations of remorse should not be taken into account in determining the level of reduction. Rather, they should be considered separately and prior to any guilty plea reduction, as potential mitigating factors." 26. It was submitted that the appellant's good character is one such factor but in addition, and distinguishing him from the co-accused, he should have had additional mitigation taken into account in relation to his co-operation with the police. Again, these submissions have been renewed attractively by Miss Byrnes in her submissions. 27. Thus it is said that in December 2017 this appellant travelled from the family home in Hertfordshire to attend as a voluntary attendant for interview in Newcastle. In the course of that interview he made admissions and cooperated with the investigation, answering all the questions put to him and voluntarily surrendering his phone so that it could be interrogated by the police. In contrast neither Paul nor Sean Moulding answered any questions in interview. 28. In granting leave to appeal, the single judge stated as follows: i. "It is arguable that in sentencing the judge erred in regarding you as, in effect, a co-conspirator with your co-defendants. You were not charged with conspiracy. Your offence was in supplying two undercover officers, at their request, with telephone numbers of dealers from whom they could buy cocaine. The undercover officers used those numbers to buy cocaine on a number of occasions, the drugs being sold and delivered to them by your co-defendants. You had no part in the actual sale or delivery of any drugs. ii. It is arguable that, in those circumstances, the judge should have placed your offending at a lower point in the Guideline. It is also unclear what allowance he made for your mitigation (youth, previous good character, remorse, assistance to police) prior to applying the full one-third discount for plea." 29. It is effectively upon those grounds that this appeal has been presented by Miss Byrnes. 30. We agree with the single judge and with the submissions that have been made to us that the learned sentencing judge erred in reaching the same sentence for this appellant as for Sean and Paul Moulding before applying the appropriate discounts for plea. In our judgment, insufficient regard was had not only to the actual role of the appellant as submitted to the learned judge on behalf of the appellant and as accepted by him, but also to the mitigating factors. Nevertheless, we consider that the learned judge was right to place this appellant in the significant role category and therefore within the sentencing range that he did. 31. In our judgment the appropriate sentence before reduction, taking into account the starting point which the learned judge reached for Sean and Paul Moulding, should have been at the very bottom of the category range, namely three-and-a-half years rather than four years. Reducing that by one-third to give credit for the guilty plea, that would have reduced the sentence of one of 28 months' imprisonment. To that extent therefore we set aside the sentence that was imposed of 32 months. We allow this appeal and we impose alternatively the sentence of 28 months' imprisonment. To that extent, this appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2019] EWCA Crim 1575' date: '2019-09-12' judges: - LORD JUSTICE SINGH - MR JUSTICE FRASER - MR JUSTICE MARTIN 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} ======

Case No: 201505676 B1 Neutral Citation Number: [2017] EWCA Crim 33 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROYDON CROWN COURT HH Judge Gower QC T 2013 0042 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10 February 2017 Before: LORD JUSTICE SIMON MR JUSTICE BLAKE and HH JUDGE LEONARD QC (sitting as a Judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - Between: Regina Appellant and Akim Halim Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Mark Mullins for the prosecution Ms Lisa Freeman for the defence - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Simon: 1. This is a prosecution application under s.31(2) of the Proceeds of Crime Act 2002 (‘POCA’) for leave to appeal against a ruling by HH Judge Gower QC, sitting at Croydon Crown Court, made on 12 November 2015, in which he refused to find retrospectively that there were ‘exceptional circumstances’ within the meaning of s.14(4) of POCA, and dismissed the prosecution application for a confiscation order. The application has been referred to the full court by the Registrar. 2. On 25 February 2013, the respondent (whom we shall refer to as the defendant) pleaded guilty to possession of a controlled class A drug with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. 3. The police had executed a search warrant at the defendant’s home on 13 December 2012. Various items were seized including several packages containing cocaine, mixing agents, a drugs press and approximately £16,000 cash. In interview he accepted that the drugs and other items were his, but said that he mixed the drugs himself, sold them irregularly to about 20 builders at his work place and used the profit to pay for his own drug use. It was on that basis that he entered his plea. This was not accepted by the prosecution, and a trial of the issue was directed. 4. On 19 September 2013, 7 months later, the Court found that the supply was on a commercial basis; and on the same day the defendant was sentenced to a term of 42 months imprisonment, with orders for forfeiture and destruction of the drugs. 5. A timetable for confiscation proceedings was set, which required the provision of information from the defendant (under s.18 of POCA) by 29 November 2013, a s.16 statement of information by the prosecution on 31 January 2014 (9 weeks later), and a defence s.17 response to the statement of information by 30 April 2014 (3 months or so thereafter). Any final answer from the prosecution was to be served by 14 May 2014, and a date for mention was fixed for 28 May 2014. 6. The period of 2 years from the date of conviction was 24 February 2015; and if this timetable had been adhered to, the confiscation application could have been easily dealt with within the 2-year period from the date of conviction as required by s.14(5). 7. However, the provision of information under s.11 was not given by the defence on 29 November 2013, but on the 2 February 2014, over 10 weeks late. Notwithstanding this delay, the prosecution served its s.16 statement of information on 3 March, within 18 days, rather than the 9 weeks allowed under the directions. 8. Following the timetable, the defence response should have been served 3 months later, at the beginning of June 2014. In fact, the defendant changed his solicitors, and on 28 May 2014 the new solicitors proposed a revised timetable with a defence response by 9 July 2014, the prosecution answer on 13 August, any further response from the defence by 27 August, and a mention hearing on 19 December 2014. 9. The mention hearing was brought forward to 12 September 2014, due to a failure by the defence to serve the s.17 response; and on that date a further timetable was set with the s.17 defence response by 7 November, the prosecution answer by 5 December and a mention hearing fixed for 19 December 2014. 10. The mention hearing on 19 December 2014 was concerned with the continuing failure of the defence to serve its response; and a yet further timetable was set with the s.17 defence response by 30 January 2015, the prosecution answer by 27 February and a hearing fixed for 15 May. 11. As we have noted, the 2-year period following conviction expired 25 February 2015, although nobody appears to have picked up the point. 12. No hearing took place on 15 May 2015, because the defence applied to adjourn the hearing. The case was taken out of the list administratively and HHJ Tanzer gave directions setting a new timetable. The defence was to provide evidence of value under the transfer assumption, together with an up-to-date assessment of realisable assets by 12 June 2015. Any further s.16 statement was to be provided by the prosecution by 10 July, and the confiscation hearing was set for 17 August 2015. As we understand it, the Judge indicated that the hearing ‘must’ go ahead on that date. 13. On Monday 17 August 2015, the confiscation proceedings were listed for hearing before Mr Recorder Bruce. 14. Two committal cases were also listed prior to the confiscation proceedings. Counsel (not Mr Mullins) was instructed for the prosecution in both these cases as well as in the POCA hearing. These took longer than expected; and it was not until shortly before the midday adjournment, at about 12.40, that the parties were called into court. 15. Counsel for the prosecution applied for an adjournment. She had been instructed late, and informed the court that she had not had sufficient time to absorb the content of the bulky confiscation documentation, which filled several lever arch files. It appears that the CPS had failed to send the papers to counsel’s chambers. Counsel pointed out that, given the complexity of the matter and that it was intended to hear from four witnesses, the time estimate for the hearing was a full day, which was no longer available. She noted that the matter ought to have gone ahead on 15 May 2015, but that the proceedings had then been adjourned due to a lack of information provided by the defence. She submitted (wrongly, as it is now acknowledged) that the 2-year time limit had not yet expired, since the time ran from the date of the Newton hearing (namely 19 September 2013) and thus the time limit did not expire until 19 September 2015. 16. Defence counsel, then as now, Ms Freeman, opposed the application to adjourn. She submitted that the only reason the prosecution was not in a position to proceed was that the CPS had not properly instructed counsel to attend and represent it. She observed that prosecuting counsel had been instructed in other matters before the court during the morning, and this was the reason why, at 12.40, there was insufficient time remaining for the confiscation proceedings to proceed. She also submitted that, notwithstanding the earlier acceptance that 19 September 2015 was the expiry date, the 2-year time limit had actually expired on 25 February 2015. For these reasons, the hearing should not be further postponed. 17. The Recorder noted that the issue of whether time had already expired had not been flagged up until the hearing. Prosecuting counsel had been faced with bulky additional papers and the information that there were four potential witnesses at a very late stage. This was the first time the prosecution had requested an adjournment, and the defence had been responsible for a considerable amount of delay within the confiscation timeframe. The two committals that had been listed in court earlier in the day had taken considerably longer than anticipated and it was clear that there was insufficient time to complete the confiscation hearing. In these circumstances, he ruled that the proceedings would be adjourned so that all matters could be dealt with at the same time in a proper manner. 18. It was in these circumstances that the confiscation proceedings came before HHJ Gower on 12 November 2015. The Judge found that the relevant period had expired on 25 February 2015, and refused to extend the two-year time limit in which to make a confiscation order. He recorded Mr Mullins’s submission that the Court should find that there were exceptional circumstances for extending the two-year time limit under section 14 of POCA. He referred to the chronology and the judgment of this court in Johal [2014] 1WLR 146 . In his view, it was clear that the prosecution had laboured for a long time under the mistaken belief that the two-year time limit ran from the date of sentence rather than the date of conviction. Neither on 15 May 2015 nor at the hearing on 17 August 2015 had it been realised that the two-year time period had already expired. It was clear that the hearing could not take place on 17 August 2015 because counsel had not been in a position to conduct the case and no argument had been put forward for a finding of exceptional circumstances such as would have justified an extension under section 14. He noted the defence concession that if the matter had proceeded on 17 August 2015, they would have accepted that exceptional circumstances existed in view of the delays by the defendant, but that by 17 August 2015, the prosecution had had sufficient time to prepare and ensure that counsel was properly instructed with all the relevant papers. The defence submitted that the prosecution failures and the circumstances of what occurred on 17 August could not amount to exceptional circumstances. The Judge also recorded the further defence submission that, although prejudice to the defendant did not become relevant unless exceptional circumstances were found, there would be prejudice to the defendant who was paying privately for his representation and would incur the costs of an additional hearing. 19. We have set out these arguments because they were broadly replicated in the submissions before us. 20. The Judge recognised that a broad approach should be taken as to what constituted ‘exceptional circumstances’ in s.14 of POCA and that, although adherence to the timetable was an obligation, the approach to failure to comply should reflect the intention of Parliament, which was that confiscation proceedings should go ahead without technical problems of timing and timetabling acting as a bar to recovery. The court should not be deprived of its duty to make an order by a breach which did not prejudice the defendant. 21. In view of what happened in the lead up to the August 2015 hearing, the Judge was wholly unpersuaded that there were any exceptional circumstances that applied to the case, such as would enable him to allow an extension. Although in the light of this finding, it was not necessary for the defence to prove they had been prejudiced, he concluded that the defendant had inevitably been prejudiced by the fact he had to pay for two hearings instead of one. He concluded that he was not entitled, nor would it be right, to extend the time limit, and the confiscation proceedings would therefore be dismissed. 22. On this appeal the prosecution advances a number of criticisms of the ruling. First, it was inconsistent with the finding made by the Recorder at the 17 August hearing that the need for an adjournment was ‘nobody’s fault’ and that, even if the hearing had started at 10.30, it would not have been accommodated within a day. 23. Secondly, the Judge’s conclusion that, if the prosecution had properly had the time limits in mind, the court’s timetabling would have been structured so as to ensure that the hearing would have taken place within the two-year period did not take into account the numerous breaches by the defence of all five sets of timetabling directions set by the court. 24. Thirdly, the consequence of the Judge’s approach would be that a defendant would not have any incentive to comply with timetabling directions since, if the defence could push the timetable beyond the two-year point then any single mistake by the prosecution could bring the confiscation proceedings to an end. This could not have been Parliament’s intent. In any event, the defence suffered no real prejudice from the adjournment on 17 August, which could not be met by an adverse order for costs. 25. In answer, Ms Freeman submitted that the prosecution was trying to blame the Court for there being insufficient time to hear the case, and that this was impermissible. The only issue was whether a failure by the prosecution properly to instruct competent counsel in the three months following Judge Tanzer’s order on 15 May 2015 established ‘exceptional circumstances.’ She submitted that it did not. If prejudice were required (which she did not accept) it was clearly demonstrated, since even if a costs order were made (and it had been refused at the conclusion of the 17 August hearing) it would not eliminate the prejudice suffered. 26. We have considered these submissions and the Judge’s ruling. 27. Section 6 of POCA provides for the making of a confiscation order; and s.14, headed ‘Postponement’, provides: (1) The Court may – (a) Proceed under section 6 before it sentences the defendant for the offences (or any of the offences) concerned, or (b) Postpone proceedings under section 6 for a specified period. (2) A period of postponement may be extended. (3) A period of postponement (including one as extended) must not end after the permitted period ends. (4) But subsection (3) does not apply if there are exceptional circumstances (5) The permitted period is the period of two years starting with the date of conviction. 28. The cases concerning the operation of s.14 recognise the tension between the prompt resolution of confiscation proceedings (within 2 years of conviction) and the practical difficulties that this may cause. They also recognise the imprecision of the statutory phrase, ‘exceptional circumstances’. 29. Soneji [2006] 1 AC 340 was a case which was concerned with the previous statutory provision dealing with ‘exceptional circumstances’: s.72A of the Criminal Justice Act 1988 (as amended). At [24] Lord Steyn highlighted the ‘public interest in not allowing a convicted offender to escape confiscation for what were no more than bona fide errors of the judicial process.’ 30. In Guraj [2017] 1 WLR 22 (SC), Lord Hughes JSC commented on the possibility of a review of the statutory sequencing of sentencing and confiscation, and the status of the procedural requirements in POCA. 36. Enough has been said to show that Lord Steyn's prediction in Soneji (see para 1 above) was sadly entirely accurate. The Law Commission has expressed interest in reviewing the confiscation legislation. It may be that amongst the topics which would merit review are (1) the best way of providing realistically for the sequencing of sentencing and confiscation and (2) the status of procedural requirements in the Act. 37. The Act must, however, be obeyed as it stands. Confiscation proceedings are particularly susceptible to drift. They must not be allowed to suffer it. They need not always be complicated, and efforts should be made by the Crown, as well as the courts, to simplify them. It will often be in the interests of defendants to delay. In overstretched police and CPS offices it may often be tempting to give priority to something other than confiscation. Courts have got to be alive to these realities. It may help to echo the useful practical guidance offered by Irwin J, giving the judgment of the Court of Appeal (Criminal Division) in Johal : 48. ... We re-emphasise the message given at para 13 by this court in R v T [2010] EWCA Crim 2703 . The fact that the courts will not wish to see the intention of Parliament defeated by technical points taken to stave off meritorious confiscation orders, does not mean that the obligations under the Act can be taken lightly. It is essential that listing officers, acting as they do on behalf of judges and discharging a judicial function delegated to them for day-to-day administration, pay close regard to the procedural steps laid down in section 14. Listing officers should be aware of the necessity to adhere to the two-year limit. They should be alive to the risk that the parties may not alert them to such a problem. They should be aware of the requirement to consider whether there are exceptional circumstances before a postponement beyond two years is granted. They should be aware of the obligation not to postpone generally but to specify a date when there is to be a postponement. It would be wise for listing officers to consult the resident judge when any such problem is likely to arise. It would also be wise to keep a record of what was taken into consideration at the time, and in particular whether any exceptional circumstances arose which justified postponement. 31. The passage in Johal highlights that the hearing of POCA applications will engage a duty on the prosecution, the defence, and Court listing officers (who act on behalf of Judges in listing applications) to pay close regard to the procedural requirements of s.14. We would add that those duties reflect the duties set out in the overriding objective in CPR Part 1. 32. In Johal the Court posed three questions. The first of these questions was: what is the proper approach to the application of the requirement in s.14(4) of exceptional circumstances? Having reviewed a number of authorities, the Court said this: 39. Standing back from all the authorities, it is clear in our judgment that the intention of Parliament was that a broad approach should be taken to what constitutes ‘exceptional circumstances’. Indeed, in the approach to section 14 generally, Parliament's intention must be taken to be to ensure that confiscation proceedings go ahead and are effective without technical problems of timing and timetabling acting as a bar to recovery. Adherence to the timetable is an obligation, as we shall re-emphasise later in this judgment, but the approach to strict failures to comply should reflect that intention of Parliament. 33. This passage indicates that Courts should adopt an approach which keeps in balance the importance of the prompt resolution of the confiscation proceedings (within 2 years of conviction) and the practical difficulties of timing and timetabling that this may involve. 34. It is also clear from Johal , at [38], that where the court adjourns a case before the expiry of the permitted time, without a consideration of whether there were exceptional circumstances, it is permissible for the court subsequently to conclude that there had been exceptional circumstances at the time of the adjournment, see also R v. T [2010] EWCA Crim 2703 . 35. We doubt that it is either possible or desirable to provide an all-embracing definition of what may amount ‘exceptional circumstances’, but a consideration of the circumstances will plainly involve looking at the entire history of the proceedings to see whether circumstances exist which may exceptionally justify a postponement. 36. It is clear in the present case that there were circumstances which justified postponing the proceedings on 19 December 2014 and 15 May 2015; and it follows, as Ms Freeman accepted, that if the hearing had proceeded on 17 August 2015 exceptional circumstances could have been relied on retrospectively to postpone the period from February to August 2015. 37. If it were otherwise, a defendant would be able to contrive delays beyond the two-year period which could result in the confiscation proceedings being dismissed thereafter. 38. To see why the hearing did not proceed on 17 August it is necessary to consider another passage in the ruling of Mr Recorder Bruce: On the 9 July this year, the Crown Prosecution Service wrote to say that the addendum to the section 17 response, which had been ordered on the 15 May and which was due by the 12 June, had not then been served. That left, they said, the prosecution with insufficient time for the investigator to produce his report by the 10 July. That response was submitted on the last working day of last week, Friday, the 14 of August, and I have considered that response. It is self-evident that the parties are very substantially apart as to the benefit enjoyed. The defendant has produced a mass of paper including, on my preliminary perusal, some limited detail in respect of rental income. The Crown criticise the disclosure, suggesting that figures are unsupported by evidence and at variance with other documents. I have also looked, very briefly, at the short addendum, indicating that the total pages now run to no fewer than 268 pages. In addition, in the judge’s file, I find 104 pages of spreadsheet analysis. My consideration of the papers has been limited in time, but I have to say candidly that I am presently at a loss to understand how this quantity of complex paperwork in what has been described - and I think rightly described - as an intricate and complicated investigation could ever be dealt with within the timescale originally provided. 39. The evidence that the confiscation could not have been heard on 17 August is clear. Even if the prosecution had been properly prepared for the hearing, there was insufficient time to conclude the hearing as a result of the listing of prior cases and a time estimate of 1 day which was plainly an underestimate. 40. There were a number of reasons why Judge Gower did not regard the circumstances as exceptional. (1) The prosecution should know when the relevant period starts and when it will expire, so that the court can be kept informed. (2) As at 17 August 2015, there had been considerable delay: ‘the blame being fairly and squarely’ due to the defence. Nevertheless, (3) this did not absolve the prosecution from ensuring that they had their own case in order. (4) The longer the delay, the more imperative it is that the prosecution is in a position to go ahead. (5) The Prosecution should have been in a position to go ahead on 17 August and they were not. (6) It followed that there were no exceptional circumstances which could justify postponing the hearing. (7) It was not necessary to show prejudice to a defendant, but if it were, the fact that the defence was privately funded inevitably gave rise to prejudice. 41. As to these points, we agree with points (1)-(3) and (5). So far as (4) is concerned, if the Judge had said that delays should be minimised and that it is the task of the court and the parties to ensure that this is so, then we would agree, although we see no proper basis for placing an additional burden on the prosecution to make up for delays caused by the defence. 42. It is with points (6) and (7) that we disagree. In our view the Judge paid insufficient regard to the delays caused by the defence before 17 August 2015. On the basis of what was said in Johal , it was necessary for the Judge to have regard to all the circumstances; and these included the fact that if the court’s timetabling directions had been complied with by the defence the confiscation hearing could have been heard within the two-year period. 43. The Judge was rightly critical of the prosecution for instructing inexperienced counsel who would have found herself in difficulties if the application had gone ahead; and we would emphasise that those who are instructed in confiscation hearings are competent to do so. Nevertheless, at least some difficulties had been caused by the late lodging of defence papers (as Mr Recorder Bruce had recognised); and he had concluded that the hearing should not begin in view of the late start and the necessary adjournment at the end of the day, with all the listing difficulties of re-fixing before a part-time judge that this might involve. The parties recognised on 17 August that the hearing would last two days, and it was fixed on that basis. 44. We would add, that there was no unfairness to the defence in adjourning the application. Seven months of the 24-month period (from February to September 2013) had been spent in dealing with the defendant’s dishonest explanation for his possession of the drugs; and every breach of court orders during the period of 19 months (from November 2013 to May 2015) was caused by the defence. In short, the prosecution was not at fault during any period up to the expiry of the 2-year time limit. Furthermore, any prejudice to the defence from the adjournment could have been met with a costs order or an abatement of any sums which were ultimately found to be payable in the confiscation proceedings, if that were justified. 45. Without repeating what was said in Johal at [39], we would again emphasise that confiscation hearings are an important part of the Crown Court’s function; and should be given the proper focus and priority that are called for in the light of the statutory time limits. We would add that it is good practice for courts to schedule readiness hearings a week or so before the date fixed so as to ensure that the parties are ready to go ahead, and, if necessary, direct that skeleton arguments be exchanged in good time so as to identify the matters in issue at the hearing. 46. Section 32 of POCA sets out the Court’s power on appeal. In relation to an application under s.31(2) of POCA, as this is, s.32(2)(b) provides that the Court may direct that the Crown Court should proceed afresh under s.6 if it considers that the decision of the Crown Court was wrong. 47. For the reasons we have given we consider that the ruling made on 12 November 2015 was wrong and we direct that the Crown Court proceeds afresh.

```yaml citation: '[2017] EWCA Crim 33' date: '2017-02-10' judges: - LORD JUSTICE SIMON - MR JUSTICE BLAKE ```

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No: 2008/1855/A1 Neutral Citation Number: [2008] EWCA Crim 1328 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 10 June 2008 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE ANDREW SMITH HIS HONOUR JUDGE LORAINE-SMITH (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DYLAN RUSSELL - - - - - - - - - - - - - - - - - - - - - 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 Turton appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE ANDREW SMITH: This application for leave to appeal against sentence has been referred to the court by the Registrar. The offences for which the applicant was convicted on 15th February 2008 and sentenced on 12th March 2008 were committed on 24th October 2007. That evening the applicant, then aged 15, went drinking with a group including his brother Michael Russell, who was then aged 19 or 20. During the evening the applicant had a fight with another youngster in a group called Whitworth and after that they went off to the house of a girl called Natasha Lee. There was more trouble between the applicant and Whitworth before the applicant left. 2. Before long the applicant returned with a machete. His brother Michael was there too. A number of the group came out of the house and the applicant struck one of them called Wayne Rogan across the back with the machete. No injury was caused and Wayne Rogan returned to the house and slammed the door. A glass panel of the door was smashed, but things then seemed to calm down. 3. After that Wayne Rogan came out of the house again and went up to Michael Russell, who by now had the machete. The applicant had a large knife. He slashed Rogan across the back of the neck with it, leaving a six inch gash. The Recorder of Middlesbrough who tried the case said when passing sentence that Rogan could have died but for the wonders of modern science and the wound "could so easily have severed his head from his body". 4. The applicant and his brother were tried for wounding with intent, affray and having a weapon in a public place - the weapon being the knife in the case of the applicant and the machete in the case of the brother. The applicant was convicted of all three offences and his brother of the latter two but not the wounding. 5. The Recorder of Middlesbrough sentenced the applicant for the wounding offence to detention for public protection with a minimum term of three years, less 32 days spent on remand, and did not impose separate penalties for the other offences. Michael Russell was sentenced to concurrent terms of 12 months' detention for the affray and having a weapon in a public place. 6. The Recorder concluded that there was a significant risk of harm to members of the public. In considering this he had had under the relevant statutory provisions to take into account all the information available about the nature and circumstances of the offence and might also take into account information about any pattern of behaviour of which the offence forms part and also any information about the applicant. It has been said that the court must be particularly rigorous before reaching this conclusion in the case of an offender who is not yet eighteen years of age, bearing in mind the hope that maturity will reduce the risk. 7. We have described the offending on 24th October 2007. The applicant had previous convictions but had not previously had a custodial sentence. The three previous convictions to which the Recorder referred when passing sentence are these. In October 2006 the applicant was convicted in respect of having a lock knife with him in a public place. In 2007 he had two convictions for assault occasioning actual bodily harm. One occasion was when, after a controversial incident on a football pitch, the applicant headbutted the victim and then having gone home returned to threaten others. The prosecution told the Recorder that the applicant had gone and collected a hammer and when sentencing the applicant the Recorder referred to the applicant using the hammer. It was disputed on behalf of the applicant whether in fact there was a hammer involved in that incident. The other occasion was when the applicant smashed a coffee table with a dumbbell and when told to leave the house he inflicted on his victim several blows to the head fracturing a cheekbone, as well as causing severe swelling and bruising. The point is taken on behalf of the applicant that in the sentencing remarks there is reference to the applicant beginning his attack with a dumbbell, but we have set out the facts more fully as we understand them to be. 8. There was a pre-sentence report which we commend for its clarity and straightforward language. The writer reported that the applicant still did not admit the offences for which he was to be sentenced, expressing the opinion that he was too scared to do so. She goes on to say that it appears that "at his young age he is totally incapable of understanding the enormity of the situation he faces" and that he is "a young man with little concept of how his behaviour causes and presents a risk to others". She observed: " ... a pattern of escalating offending in terms of frequency and violence used. His offending is often fuelled by alcohol and his lack of comprehension of the risk he presents and his behaviour causes concern." She writes this in relation to whether the applicant presents a significant risk of serious harm, that whilst he: "... may be viewed as presenting a 'significant risk' given his convictions for violence, in terms of whether he meets the 'serious harm' criteria is, I believe, hard to ascertain". In fairness we observe that the writer recognises that the applicant has a supportive family, which is borne out by his parents' attendance at court today, and that he has a good work ethic. The work ethic also is borne out by the references that we have seen. This shows another, much better, side to the applicant than is displayed in these offences. 9. In sentencing the applicant the judge said this: "I have no choice whatever, even making every allowance for your years of 16, that you pose not only a significant but a serious and in my judgment very serious risk to the public, so far as one can presently say looking into the future, and it is for that reason that, as I interpret the ever increasing complex legislation which touches upon this area of the law, it is not only my duty but my judgment that you must go to detention for an indefinite period." Although the Recorder does not recite in full the statutory language, we understand what he says as a clear conclusion that the dangerousness of the applicant was such that the statutory regime under sections 224 and following of the Criminal Justice Act 2003 was engaged. There was certainly material before the Recorder that justified this conclusion. We cannot accept that any misunderstanding with regard to previous offending vitiates that conclusion in any way and we refer to the observations in the pre-sentence report about an escalating pattern of offending as well as the horrific nature of the offence of wounding for which the applicant was being sentenced. 10. That conclusion leads to this question: whether an extended sentence under section 228 of the Act would be adequate for the purpose of protecting the public from serious harm occasioned by the commission by the offender of further relevant offences. It is not clear whether the Recorder did consider this. We are told by Mr Turton, who represents the applicant today, that the Recorder was led by prosecuting counsel to understand that having reached the conclusion as to dangerousness an indefinite sentence was obligatory. If that is what the Recorder was told it was wrong. At all events we must consider whether a sentence under section 228 would be adequate for dealing with the risk that the applicant presents. 11. There is a different regime laid down in these sections of the 2003 Act for offenders under the age of 18. The court will be cautious before being driven to conclude even in the case of a serious offence that it is necessary to crush the hopes of those so young. The applicant is clearly young and immature. He is potentially dangerous, as this offending demonstrates, but we cannot accept that an extended sentence under section 228 would not be adequate to manage the risk that he presents. Mr Turton, to whom we are grateful for his straightforward and realistic submissions, does not challenge the notional determinate sentence of six years that the Recorder rightly recognised would be appropriate in this case. We have to consider what is the appropriate extension period to afford additional protection to the public in the case of this applicant. It is our view that the appropriate extension period would be one of three years. 12. Accordingly we conclude that the appropriate sentence for the wounding in this case is an extended period under section 228, the custodial term being six years and the extension period being three years. In view of our conclusion of the adequacy of that sentence to deal with the risk that the applicant presents, we conclude that the sentence of detention for public protection was wrong in principle in failing to recognise the alternative sentence available. 13. There is a further minor point to which we should refer. The offence of affray of which the applicant was also convicted is a specified offence under the 2003 Act and it was therefore not open to the Recorder, having decided that the applicant does present the risk to the public that the statute specifies, not to pass either an extended sentence or an indefinite sentence. That matter should be corrected. The appropriate way of doing so, it seems to us, is to pass an extended sentence for that offence too, the custodial period being 12 months and the extension period being two years. That should be a concurrent sentence and does not affect the totality of the sentence passed upon the applicant. 14. Mr Turton recognises that we should deal with the appeal today. We therefore grant the application for leave to appeal against sentence. We allow the appeal to the extent of substituting for the sentence passed by the Recorder on the offence of wounding a sentence under section 228, the custodial term being six years and the extension period being three years, and passing on the affray offence a concurrent extended sentence, the custodial period being 12 months and the extension period being two years. To that extent we allow the appeal. 15. LORD JUSTICE HUGHES: Mt Turton, it was a Registrar's reference. Did he grant a representation order? 16. MR TURTON: My Lord, yes.

```yaml citation: '[2008] EWCA Crim 1328' date: '2008-06-10' judges: - LORD JUSTICE HUGHES - MR JUSTICE ANDREW SMITH - 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} ======

WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraph 1 of the judgment, because the case concerned sexual offences and involved children. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202103352/A3 NCN [2022] EWCA Crim 1206 Royal Courts of Justice Strand London WC2A 2LL Wednesday 3 August 2022 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE HOLROYDE MRS JUSTICE MAY DBE MR JUSTICE GOOSE REGINA v HARRY BOWMAN __________ 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 ENGLISH and MISS R COOPER appeared on behalf of the Appellant MR R WYN JONES appeared on behalf of the Crown _________ J U D G M E N T (Approved) 1. THE VICE-PRESIDENT: This is an appeal by leave of the single judge against a total sentence of 14 years' detention in a young offender institution for a total of 25 sexual offences. Each of the seven victims of those offences is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during their respective lifetimes no matter shall be included in any publication if it is likely to lead members of the public to identify any of them as a victim of these offences. We shall simply refer to the victims as C1, C2, etcetera. 2. The offences began when the appellant was very young. His victims were even younger. He pleaded guilty to the majority of the offences in January 2021 and to the remainder of them in April 2021. His sentencing was delayed because he was awaiting a trial on other matters, of which he was acquitted and about which we say no more. 3. We shall briefly summarise the offending, so far as possible in chronological sequence. We will refer to relevant provisions of the Sexual Offences Act 2003 simply by the section number, and we will indicate in relation to each offence the term of detention imposed by the judge. 4. Between December 2015 and September 2017, when the appellant was aged 14 to 16, he committed four offences against C2, a girl two years his junior with whom he is said to have had an on/off relationship. We summarise those offences: 5. Count 9, inciting a child under 13 to engage in sexual activity, contrary to section 8. When C2 was 12 the appellant required her to send him indecent images of herself, threatening to commit suicide if she did not do so. C2 naively believed that the threats were serious. She sent him an image of her breasts. Sentence: five years, consecutive to other sentences. 6. Count 10, causing a child to engage in sexual activity, contrary to sections 10 and 13. The appellant required C2 to send further indecent images when she was aged 13. Sentence: two years, concurrent. 7. Count 12, sexual activity with a child, contrary to sections 9 and 13. When C2 was 13, and the appellant 15 or 16, he penetrated her mouth with his penis. Sentence: five years, concurrent. 8. Count 13, inciting a child to engage in sexual activity, contrary to sections 10 and 13. When C2 was 14, and the appellant 15 or 16, he encouraged her to allow him to penetrate her anus with his penis. Sentence: five years, concurrent. 9. Between May and September 2017, when he was aged 16, the appellant committed an offence against C1 of causing a child to watch a sexual act, contrary to sections 12 and 13. This was count 7. C1 had entered into a relationship with the appellant in about February 2017, when she was only 12 years old. When she was 13 he caused her to watch a video showing himself masturbating. Sentence: two years, consecutive to other sentences. 10. In the autumn of 2017 the appellant, aged 16, began a relationship with C3, who was 15. He made an indecent photograph of her, contrary to section 1 of the Protection of Children Act 1978 and sent it to C5. This was count 24. He also committed an offence (count 18) of sexual activity with a child, contrary to sections 9 and 13, by penetrating C3's vagina with his penis. The sentences, concurrent with one another and with other sentences, were one year and five years respectively. 11. In late 2017 or early 2018 the appellant met C4 over the internet. They were both 16. C4 was at a low point in her young life, and the appellant initially appeared to be kind and reassuring to her. That appearance soon changed. The appellant persuaded her to take her clothes off for him on camera, which she felt she should do because he had been kind. Unbeknown to her, the appellant took screen shots. That was count 19, making an indecent photograph contrary to section 1 of the 1978 Act. He then demanded more images. This was count 20, inciting C4 to engage in child pornography, contrary to section 48. He threatened to send the images he had already recorded to her family if she did not comply. When C4 tried to block him from further communications he did indeed send the images to her mother and sister, telling the mother to teach C4 some manners. This was count 21, distributing indecent photographs of a child, contrary to section 1 of the 1978 Act. He then threatened C4 that if she did not comply with his wishes he would come to her home, the address of which she had given him, petrol bomb the house and kill her. This was charged in count 22, threatening to damage or destroy property, contrary to section 2 of the Criminal Damage Act 1971. He falsely told C4 that he was only 14 and therefore "a minor" against whom the police would not be able to take any action. The judge imposed sentences of one year for each of those offences. Two of the four were concurrent but the sentences on counts 19 and 21 were consecutive. 12. In October 2017 the appellant began a relationship with C5. He was 16, she was 15. He persuaded her to video herself performing sexual acts for him and he secretly took screen shots: count 23, making indecent photographs of a child, contrary to section 1 of the 1978 Act. Sentence: one year, concurrent. At a later date, when she refused his request to visit his house, he threatened to send those screen shots to her mother. C4 therefore went to his house, where he took her to his room and asked her for sex. He persisted in that request despite her refusal, took off her clothes and penetrated her vagina with his penis: count 25, sexual activity with a child, contrary to sections 9 and 13. Sentence: five years, concurrent. Subsequently, the appellant sent one of the screen shots to C2. This was count 26, distributing an indecent photograph of a child, contrary to section 1 of the 1978 Act. Sentence: one year, concurrent. 13. In the summer of 2018 the appellant, by now aged 17, met C6, aged 15, over the internet. He told her he was 18 and lived in Scotland. He persuaded her to send him a nude photograph of herself: count 27, making an indecent photograph of a child, contrary to section 1 of the 1978 Act. Sentence: one year. He then demanded more images, threatening that if C6 did not do what he wanted he would send the image he had already received to her mother or to Facebook. C6 felt she had no choice but to comply. This was charged in count 28, inciting child pornography, contrary to section 48. Sentence: one year. The appellant caused her to penetrate her own vagina: count 29, inciting a child to engage in sexual activity, contrary to sections 10 and 13. Sentence: two years, concurrent. The appellant became increasingly controlling, encouraging C6 to show him scars from her self-harming and telling her she should make the cuts deeper. He pleaded guilty to sending an electronic communication with intent to cause distress or anxiety, contrary to section 1 of the Malicious Communications Act 1988. Sentence: one year. 14. Those offences against C6 were committed during a period both before and after the time when the appellant was first arrested, which was in August 2018. He was not immediately charged with any offences, but must have known he would be. He nonetheless went on to commit further offences, not only against C6 but also against his final victim, C7. 15. C7 was only 13 when the appellant befriended her over the internet. He told her he was 14, but in fact he turned 18 soon after they came into contact. He gave her the impression that he was someone she had met whilst in care, and initially seemed kind. He then quickly changed and demanded indecent images of her, threatening to put personal information about her on social media if she did not do so. She felt she had no choice and therefore complied: count 21, inciting child pornography, contrary to section 48. Sentence: one year. He went on to demand increasingly explicit images. When she told him that she was distressed and felt like self-harming, he encouraged her to cut herself. He caused her to engage in sexual activity by touching her clitoris, penetrating her anus with a hairbrush and touching her vagina: counts 32 to 34, inciting a child to engage in sexual activity contrary to section 10. Sentences: two years, concurrent, on each. 16. When the appellant's electronic devices were seized by the police and examined, a large number of indecent images of children, some as young as two and three, were found. There were 364 images at Category A, 245 at Category B and 613 at Category C. These were charged in counts 35 to 37, making indecent photographs of children, contrary to section 1 of the 1978 Act. Sentences: one year, concurrent, on each. 17. At the sentencing hearing on 24 September 2021, as in this court, the prosecution were represented by Mr Wyn Jones and the appellant by Mr English and Miss Cooper. They made submissions as to the relevant sentencing guidelines. These included, as the judge recognised, not only the relevant offence-specific guidelines but also the over-arching principles guidelines relating to totality, to sentencing children and young people and to sentencing those with mental disorders. 18. Unfortunately no victim personal statements had been obtained. The victims understandably had nonetheless wanted the sentencing hearing to proceed. The absence of any victim personal statement did not, of course, mean that these offences had not caused serious harm to the victims. 19. The judge was assisted by a pre-sentence report and by a psychologist's report. The former reported the appellant as having limited social skills and difficulty in recognising the emotions of others, with consequently limited empathy with his victims. The latter was prepared primarily in relation to the appellant's fitness to plead and to stand trial, but it provided helpful information as to his mental health problems, namely dyslexia, anxiety, depression and autism. Autistic disorder syndrome had been diagnosed in May 2019, when a follow-up appointment was to be arranged, but it appears that that did not happen. The judge also read a letter from the appellant's parents, which showed the much better side of the appellant and described the difficulties he had had in forming friendships because of his mental health problems. 20. In his sentencing remarks, the judge regarded the offending as falling into three groups: the contact offences against girls whom the appellant had met; the non-contact offences against those he met over the internet; and the further offences which were committed to satisfy the appellant's own gratification, such as sending images to a girl's family as an act of revenge when he could not get his own way. 21. The judge identified a number of mitigating factors: youth, the remorse indicated by the guilty pleas, a long period of remand in custody in difficult conditions whilst awaiting sentence, the counselling which the appellant had undertaken in custody, the absence of previous good convictions and the mental health issues. The judge assessed the appellant as dangerous, but did not think it necessary or appropriate to impose an extended determinate sentence. 22. Looking at the most serious of the offences, the judge assessed counts 12, 13, 18 and 25 as Category 1A offences under the relevant guideline, with a starting point for each of five years' custody and a range from four to 10 years and count 9 as a Category 3A offence under the applicable guideline, again with a starting point of five years. He allowed credit of 25 per cent for the pleas entered in January 2021 and 20 per cent for those entered at a later hearing. He imposed the sentences to which we have referred. He made ancillary orders, which are not challenged and about which we need say no more. 23. It can be seen at once that the judge faced a difficult sentencing process. On the one hand the offending was very serious and was committed over a lengthy period against a number of young, vulnerable victims. On the other hand, the offender was himself very young when the offending began and only just into adulthood when it ended, and he has mental health problems. 24. Unfortunately, there appears to have been a collective oversight by the judge and counsel in relation to counts 12, 13, 18 and 25, the offences of sexual activity with a child contrary to sections 9 or 10 and 13. The maximum sentence for such an offence is 14 years' custody in the case of an adult offender, but only five years if at the time of the offence the offender was aged under 18, as this appellant was. It follows that in imposing five years’ detention for each of those offences, the judge was imposing the maximum sentence even though the appellant was entitled to credit for his guilty pleas. This point has been identified by the vigilance of the Criminal Appeal Office lawyer, to whom we are grateful, and it is common ground that those sentences must at the very least be adjusted to reflect the guilty pleas. 25. In addition to that point, Mr English, assisted by Miss Cooper who has been good enough to appear in this court pro bono , advances a number of grounds of appeal. He submits that the judge failed sufficiently to reflect the important factor of the appellant's youth, in particular by failing explicitly to consider what sentence was likely to have been imposed as at the dates of the offences. It is further submitted that insufficient weight was given to the appellant's mental health difficulties, which were relevant in assessing the appellant's culpability. Relying on the medical report to which we have referred, Mr English submits that those mental health issues did limit the appellant's understanding of the seriousness of what he was doing. Although it is not suggested that he had no idea that what he was doing was wrong, Mr English submits that his condition did impair his ability to understand the nature and consequences of his actions. 26. Mr English also submits that the judge's starting points in relation to at least some of these sentences are difficult to discern, and that the judge failed to make any reference either to the long delay before sentencing (which was not attributable to any fault on the appellant's part) or to the particular difficulties of serving time in custody during the Covid pandemic. 27. We are very grateful for the submissions on behalf of the appellant. 28. The single judge directed that a prison report be obtained. It showed that the appellant had displayed a poor attitude to his detention and it referred to an adverse adjudication and other issues relating to the appellant's behaviour. Those critical observations related, however, to dates before the appellant was sentenced and Mr English makes the point that the sentencing process has brought with it an increased understanding by the appellant of the seriousness of what he has done. In any event, those matters occurring whilst in custody cannot and do not make the offending any more serious than it already is. 29. The single judge also directed that prosecution counsel should attend this hearing. We are grateful to Mr Wyn Jones for doing so. 30. The appellant was sentenced some months before the decision of this court in R v Limon [2022] EWCA Crim 39 which emphasised the need to follow the principles in the children guideline where an adult is being sentenced for offences committed as a child. The key point is that if the offender's culpability was reduced by his youth and immaturity at the time of the offending, that level of culpability is not increased by the intervening passing of time. It is therefore necessary to consider what was the maximum sentence which could have been imposed at the time of the offending and what sentence was likely to have been imposed. 31. Viewed as a whole, this was serious sexual offending against victims who were vulnerable by reason of their age and, in some instances, also by reason of their personal circumstances. Over a significant period of time the appellant moved from one victim to the next, sometimes playing them off against each other for his own gratification. In some instances he used lies and deceptions to form an initial relationship with his victim. Once he had acquired a degree of control over his victims he determinedly pursued his sexual aims, quickly resorting to nasty threats and blackmail when it suited him to do so. It has to be said that there is a troubling air of malice and vindictiveness about some of his conduct, going beyond what he perceived to be necessary to achieve his aims. 32. The appellant was under the age of 18 at the time of all the offences except those against C7. His young age was of course an important mitigating factor. It is however necessary to bear in mind the following: he was 16 or 17 at the time of many of the offences, and therefore not a very young child; it is not in our view realistic to regard these offences as youthful sexual experimentation; the last six offences were committed after he had been arrested; and he was an adult when he committed the offences against C7. 33. The appellant's mental health difficulties are also an important mitigating factor. They certainly do not remove all culpability, but we accept that his autistic condition did limit his ability to recognise the emotions of others and perhaps also the seriousness of the harm he was causing. 34. Balancing those considerations we have no doubt that if the appellant had been sentenced as a 17 year old for all the offences which he had committed up to that point, he would have received a substantial period of detention, pursuant to what is now section 250 of the Sentencing Act 2020, for one or more of the offences for which such a sentence was available. His further offending against C7 when he was a young adult, despite having been arrested, makes an even longer period of custody inevitable. 35. At this stage of proceedings, our principal concern must be with the totality of the sentencing, not with its precise structure. We have concluded that, in a difficult sentencing process, the judge failed to give sufficient weight to the important combination of the appellant's youth and mental health difficulties. Having reflected on the sentencing guidelines applicable to adult offenders, and on the appropriate reductions to be made in accordance with the over-arching principles guidelines to which we have referred, we have concluded that a total term of 10 years' detention was appropriate. The total sentence of 14 years' detention was therefore manifestly excessive. 36. For those reasons we allow the appeal to this extent. We do not alter the terms of detention imposed below on counts 7, 10, 19, 20, 21, 22, 23, 24, 26, 27, 28, 30, 31, 32, 34, 35, 36 and 37. However, we order that all those sentences shall run concurrently, making a total of two years. We quash the sentences imposed on counts 9, 12, 13 and 18 and substitute for each of them a term of two years' detention. They too will be concurrent with other sentences. We quash the sentence on count 25 and substitute two years' detention, consecutive to other sentences. We order that the sentence of two years on count 29, which was previously a concurrent sentence, should run consecutively to other sentences. Finally, we quash the sentence on count 33 and substitute four years' detention, again consecutive to other sentences. 37. Thus the total sentence becomes one of 10 years' detention in a young offender institution. We leave as before the ancillary orders made below. 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 1206' date: '2022-08-03' judges: - LORD JUSTICE HOLROYDE - MRS JUSTICE MAY DBE - 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} ======

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 [2023] EWCA Crim 1080 No. 202302184 A2 Royal Courts of Justice Wednesday, 30 August 2023 Before: LORD JUSTICE POPPLEWELL MRS JUSTICE TIPPLES REX V JAMIE MALCOLM MARTIN RUSSELL __________ Transcript prepared from digital audio by Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MR J ALLCHURCH appeared on behalf of the Applicant. MS S CUTTER appeared on behalf of the Respondent. _________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 On 8 June 2023, in the Crown Court at Swansea, the applicant pleaded guilty to the common law offence of preventing a decent and lawful burial of a dead body, having indicated his intention to do so at the first opportunity before the magistrates. 2 On 16 June, he was sentenced to two years’ imprisonment. The application for leave to appeal against sentence has been referred to this court by the registrar. We grant leave. 3 The applicant is 45. He has a history of alcohol and drugs abuse. He had had a diagnosis of anxiety and depression for which he had been prescribed medication, which, unfortunately, he had stopped taking at the time of the offence. He had had lengthy periods of homelessness, which was how some years ago he had met the deceased, Matthew Scott, who, when he died, was aged 42. By that time, the applicant was living in a flat in Neath, which he allowed to be used as what he described as a dosshouse for others who were drug users. 4 Mr Scott was reported missing by his family on 9 June 2022. His ex-partner was Elizabeth Dean and they had two children together, then aged 22 and 19. 5 CCTV was reviewed by police in their efforts to locate Mr Scott. Footage showed that he had last left his flat on 4 June and had not returned. On 17 June, a witness told officers that he had seen Mr Scott and another male outside the door to a flat on Windsor Road in Neath, near to a betting shop. He believed this had been between 7 and 9 June. 6 On 28 June, officers attended the betting shop and were told by an employee that since the previous week they had noticed maggots coming through the ceiling into the shop. It was established that the applicant was the tenant of the flat immediately above the shop and officers attended there just after 3 p.m. that afternoon. They knocked but got no reply. They noticed a bad smell coming from the flat and flies emerged from the doorframe, when they knocked. Officers entered the flat. 7 The applicant was there and said that he had been sleeping. When asked if there was anything in the flat that should not be, he replied, “Yes, my mate, Matthew” and directed them towards a bedroom. When asked if he was still alive, the applicant shook his head. 8 Mr Soctt’s body was found in the room lying on a mattress. It was clear that he had been dead for some time. He was wearing the same clothes which he had been wearing when seen leaving his home on 4 June on the CCTV. 9 The applicant told officers that he and Mr Scott had taken heroin in the flat; that he had left Mr Scott there with a blanket over him to sleep and gone into another room; and that, when he woke up, he realised Mr Scott was still under the blanket, had not moved and was now unresponsive. He said that he had tried mouth-to-mouth resuscitation but that it had not worked. Officers observed that there was various drugs paraphernalia in the flat. They also saw that the applicant had placed candles in front of the bedroom door and had a tee-shirt rolled up underneath it in an attempt to block the smell. 10 The applicant was originally arrested for supply of Class A drugs and taken into custody. The pathologist examined Mr Scott and confirmed that there were no physical injuries or evidence of any significant natural diseases. It would not have been possible to establish with any certainty whether there were drugs in his system due to the condition of his body at the time. 11 An entomologist concluded, as a result of examination of the fly larvae found on Mr Scott’s body, that it was likely that they would have been present from as early as 10 June. It was the prosecution case that Mr Scott died at the flat sometime between 7 and 10 June and had therefore been there for 18 to 21 days before the police discovered the body. 12 CCTV footage from the vicinity of the applicant’s flat was obtained for the period from 8 June onwards. It showed the applicant coming and going on his daily business to and from the flat on a regular basis from that date up to and including the day of his arrest. 13 A volunteer at a local night shelter, who knew the applicant from her work there, saw the applicant out in Neath one evening between 22 and 25 June and said that it was clear to her at that point that the applicant was back on drugs. According to her, he seemed to be withdrawn and shaky and told her that he wanted to talk about something terrible which had happened and did not know what to do, but needed someone to speak to. He did not, however, reveal to her what the issue was. 14 In interview, the applicant gave a prepared statement, stating that he had been friends with Matthew Scott for about ten years. In June, they had met in town, on a date which he could not specify, and had gone back to the applicant’s home and taken heroin. Mr Scott had said that he wanted to sleep so the applicant left him where he was and went to watch a film. When the applicant checked on Mr Scott later, he saw he was unresponsive. The applicant tried to resuscitate him by using a Narcon spray but that had not worked. As a result, the applicant said that he had had a panic attack and was in denial. He said that he had slept very little since the event. His memory was unclear about the timescale involved, because of his drug and alcohol addiction. Following that prepared statement, he made no comment to further questions put in interview. 15 In recounting his recollection of events to the author of the pre-sentence report, he was asked why he had not contacted emergency services, when he was unable to rouse Mr Scott. He was unable to answer this question other than to say that he was scared. He explained that his response to Mr Scott’s dead body lying in his flat was to take more drugs “in order to block things out”. 16 When sentencing, the judge had a short format pre-sentence report, which revealed that prior to the offence, the applicant had ceased to engage with alcohol and drugs agencies and had stopped taking his medication. Since the offence, his life had changed for the better. From October 2022, he had been living in supported accommodation and had re-engaged with the community drug and alcohol team. He was reportedly testing negative for substances. He was also engaging with the mental health team where his medication was under review. The author of the report considered that a custodial sentence might mean that he would lose his place in supported housing upon release. That would be a considerable backward step in the author’s view, in his returning to temporary accommodation in local hostels, where, without the current support, he would be far more vulnerable. The author suggested that a suitable community sentence could include a curfew as a punitive element and a rehabilitative activity requirement to continue his rehabilitation. 17 The judge also had a statement from the team leader managing the applicant’s new supported housing, attesting to the progress he had made, and expressing the view that it would be devastating to see the applicant lose his tenancy as a result of going to prison, given the positive changes he had been making. 18 The applicant had a few minor and irrelevant convictions, the last of which occurred in 2003 and had given rise to a drug treatment and testing order. 19 There was a statement from Mr Scott’s ex-partner speaking to the impact of the offence for herself, for the two sons and for wider family members. There was also a statement from the two sons. Those statements testified to the very considerable distress caused when Mr Scott was missing and the harrowing consequences for the family of the subsequent discovery of what had happened. They also spoke of the misery of being unable to view the body due to the extent of decomposition; and to the smell emanating from the coffin which had ruined the funeral. 20 The prosecution provided the judge with a schedule of nine reported cases. These were: R v Hunter, Atkinson and Mackinder (1973) 57 Cr App R 772 ; R v Swindell (1981) 3 Cr App R (S) 255 ; R v Parry and McLean (1986) 8 Cr App R (S) 470 ; R v Skinner (Patrick and Ian) (1993) 14 Cr App R (S) 115 ; R v Godward [1998] 1 Cr App R (S) 385 ; R v Lang (Jack Thomas) [2001] EWCA Crim 2690 , [2002] 2 Cr App R (S) 15 ; R v Sullivan (Frank) [2003] EWCA Crim 806 , [2003] 2 Cr App R (S) 91 ; R v Gale (Colin) [2018] EWCA Crim 120 , [2018] 4 WLR 132 ; and Attorney-General’s Reference (R v Tarbox) [2021] EWCA Crim 224 , [2021] Cr App R (S) 36. 21 The judge treated the most helpful of these as R v. Parry and McLean . In that case, the deceased, a drug addict, died whilst staying the night at the flat of the two appellants. They decided to hide the body to avoid attracting attention to themselves and for fear of going to prison. They tied the hands behind the back, wrapped the body in a carpet and plastic, and drove it to a remote location near a disused quarry where they rolled it down a wooded slope. They initially told the police that they had no idea of the location of the deceased or what had happened. However, the body was discovered some four or five weeks later, as a result of McLean eventually telling the police what had happened, and leading them to the location. The sentences of three years for Parry and two and a half years for McLean were upheld on appeal. The six-month difference reflected the fact that McLean had led the police to the body. 22 The judge referred to the harrowing consequences for Mr Scott’s family and to the personal mitigation involved in the applicant’s vulnerability, his genuine remorse and his steps to re-engage with his alcohol and drugs problem. The judge treated an appropriate sentence after trial as one of three years’ imprisonment, which he reduced to two years, giving full credit for the guilty plea. He rejected a submission that the sentence should be suspended, saying that the seriousness of the offence was such that appropriate punishment could only be achieved by immediate custody. 23 Mr Allchurch, who represented the applicant below and in this court, argues that the length of the sentence was manifestly excessive and that the sentence should have been suspended. With a respondent’s notice prepared by Ms Cutter, who also appeared below, the Crown has drawn our attention to two further cases, which were not before the judge when sentencing: R v. King (Diane Susan) (1990) 12 Cr App R (S) 76 and R v. Peddar [2002] Cr App R (S) 36. 24 We have considered each of the 11 cases to which we have been referred. A number of principles emerge from them. (1) The offence of preventing a lawful and decent burial, like the similar common law offence of obstructing the coroner in the execution of their duty, is a serious one, which, save in exceptional circumstances, requires a custodial sentence. The harm involved usually includes the indignity and degradation caused to the deceased; the misery caused to the deceased’s family and friends, resulting from anxiety whilst the person is missing, subsequent knowledge of the degrading circumstances following death, and the impact on the ability to have a decent funeral and burial; risks to health; and the prevention of an appropriate and timely investigation into the circumstances and cause of death. The offence involves a serious affront to public standards of decency. (2) Where the crime has been committed with the intention of preventing an investigation into the cause of an unnatural death, for example, where the death is one for which the offender or another is responsible, the offence will fall at the more serious end of the scale, because it involves a deliberate obstruction of the course of justice and justifies a deterrent element ( Godward ). In such cases, sentences of the order of five to six years may be appropriate to mark the gravity of the offending before considering other aggravating and mitigating factors ( Skinner, Lang ). (3) Where there is no such intention, but the body has been deliberately concealed and the police misled, sentences of about three years will be appropriate to mark the gravity of the offending before considering other aggravating and mitigating factors ( Hunter, Swindale, Parry and McLean, Godward, Sullivan ). Where there is no deliberate concealment, but merely a passive failure to report the death, the starting point will be in the range of 18 months to two years ( King, Peddar ). Other relevant factors relating to the offending will include the length of time for which the body remains undiscovered; conduct which assists or delays the discovery of the body; and the impact on the deceased’s friends and family. 25 The cases which we have found of most assistance on their facts are King and Peddar . In K ing , a drug addict had permitted another older addict to stay at her property, where he died during the night. She panicked when she found him dead and did not contact the police, because there was an outstanding warrant for her arrest, as a result of her being in breach of an existing community order. She put the body, wrapped in a duvet, in a back bedroom, where it remained for some six weeks before she confessed to a friend what had happened, as a result of which the body was discovered. She pleaded guilty. She showed deep regret. Her sentence of 21 months was reduced to one of 12 months. This suggests that the starting point is likely to have been in the range of 18 months to two years. 26 In Peddar , the appellant and the deceased had been taking heroin at the appellant’s flat. The appellant woke up the next morning to find the deceased dead. He became frightened and stayed away from the body because his wife had died from a heroin overdose. The body remained undiscovered for some six weeks. This court treated the sentence of 18 months, which had been imposed following a guilty plea, as appropriate for the offending, but reduced it to 12 months to reflect the offender’s particular personal mitigation. 27 In this case, the applicant did not intend to obstruct an investigation into the circumstances or cause of an unnatural death for which he or another was responsible; there was no intention to obstruct the course of justice; and he did not take any active steps to conceal the body. When the police arrived, he did not seek to mislead them. 28 There are a number of aggravating features. It is not clear whether Mr Scott was already dead when he was first found by the applicant to be unresponsive and, therefore, it is impossible to say that the applicant’s failure to call for emergency assistance played any part in Mr Scott’s death. Nevertheless, that failure is a feature which aggravates his culpability. His reported attempts at resuscitation indicate that, at the lowest, he was not sure that Mr Scott was dead when he discovered him to be unresponsive. Moreover, he failed to take the opportunity to alert the police or others to the fact of Mr Scott’s death and the location of the body on the many occasions on which he left the flat going about his daily business. He had the opportunity to do so, when he saw the worker, and was clearly agitated and wanted to speak about it but failed to take that opportunity. His initial reaction may have been one of shock or panic, but that cannot have lasted over the period of weeks in which he was living his normal life. His explanation to the author of the pre-sentence report that he was in fear lacked the coherence of being able to say of what it was that he was afraid. The impact on the victim’s family was considerable. There was also an unpleasant health risk to those in the betting shop below. The body might have remained undiscovered for much longer had it not been for the police enquiries. 29 There was also significant personal mitigation. The applicant was himself vulnerable as a result of his lifestyle. He expressed himself to be devastated and showed genuine remorse. Since the offence, he had re-engaged with the community drug and alcohol team and engaged with the mental health team, where his medication was under review. What we have been told today about his time in prison confirms that that progress has continued. He has been, by all accounts, a model prisoner and has continued his engagement with his former drug and alcohol difficulties with success. 30 Taking all those matters into account, in our view, an appropriate custodial sentence after a trial would have been one of 18 months’ imprisonment, which with full credit for the guilty plea becomes one of 12 months’ imprisonment . The judge was led into error in taking what must have been a figure in excess of three years as his starting point, before allowance for personal mitigation, by not having had cited to him the cases of Peddar and King , which we have found of most assistance. This is not a case like Parry and McLean, on which the judge principally relied, in which there had been a concealment by removal of the body to a remote place, where it was intended to remain undiscovered, and an initial misleading of the police in their enquiries; rather this case involves a passive failure to report the death. 31 Mr Allchurch renewed the argument before us that the sentence should have been suspended, emphasising the positive steps taken by the applicant to turn his life around in the period since the offence, suggesting a real prospect of rehabilitation. 32 Although those arguments were attractively presented, we agree with the judge that the seriousness of the offending is such that only an immediate period of imprisonment could be justified. Custody has no effect on any family members, and the considerations which were prayed in aid in respect of the applicant himself are all matters which we have taken into account by way of mitigation in relation to the length of sentence. 33 Accordingly, we quash the sentence of two years and substitute a sentence of 12 months’ imprisonment. To that extent, the appeal is allowed. ________________

```yaml citation: '[2023] EWCA Crim 1080' date: '2023-08-30' judges: - LORD JUSTICE POPPLEWELL - MRS JUSTICE TIPPLES ```

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 202203652/A2 [2023] EWCA Crim 645 Royal Courts of Justice Strand London WC2A 2LL Wednesday 24 May 2023 Before: LORD JUSTICE COULSON MRS JUSTICE FARBEY DBE MR JUSTICE CONSTABLE REX V DANIEL WATSON __________ 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 CALDER appeared on behalf of the Appellant. _________ J U D G M E N T LORD JUSTICE COULSON : Introduction 1. The appellant is now aged 31. On 2 November 2022, at the Crown Court at Manchester, he pleaded guilty upon re-arraignment to one count of unlawful wounding contrary to section 20. On 2 December 2022 he was sentenced by Mr Recorder Shafi KC to 28 months' imprisonment. He appeals against that sentence with leave of the single judge. The Facts 2. The appellant and Bianca Carroll had previously been in a relationship for over 8 years. They had a 4-year-old son together. They separated in the summer of 2021. In June 2022 they rekindled their friendship. On the evening of 28 June 2022, the appellant and two friends were spending the evening drinking at Ms Carroll's house. 3. At around 10.30 that night the appellant suddenly became angry. He threw his drink in Ms Carroll's face. As she put up her hand to swipe away the liquid, she was struck on the right side of her face by a glass thrown by the appellant. This caused a significant cut in the area of her right ear. When Ms Carroll asked why the appellant had thrown the glass, he told her: “You deserve it”. 4. In the days thereafter, the appellant told Ms Carroll that she had "better not" call the police. However, she did report the incident to the police. The appellant then sent her a number of offensive messages, calling her "a slag" and "a scumbag". One message ended with the words: "Why what if a few stitches can't heal it. Behave." In fact, the 3cm laceration on the side of Ms Carroll's face was the subject of surgery and has left a permanent scar. 5. The appellant pleaded guilty pursuant to a basis of plea. That stated that he did not intend the glass to make contact with Ms Carroll and did not therefore intend to cause her injury. The Sentencing Exercise 6. The learned Recorder said in terms that he sentenced the appellant by reference to his basis of plea. By reference to the Sentencing Guidelines, he said that this was a medium culpability offence with harm in category 2. That gave a starting point of 2 years' custody and a range from 1 to 3 years' custody. The learned Recorder then identified various aggravating factors, such as the appellant's previous convictions for violence and a recent offence of sending malicious communications to Ms Carroll. There was also the domestic setting of the incident. 7. In all the circumstances, the Recorder identified the notional sentence after trial of 3 years. Giving credit for the plea, that reduced the term to one of 28 months' custody. The Appeal 8. Mr Calder's written advice takes a variety of points about the sentencing exercise. However, in his clear and crisp submissions this morning, Mr Calder's principal criticism was that the judge failed to have proper regard to the basis of plea. In particular, Mr Calder pointed out that the judge was wrong to say: "I am told there was no intent to cause injury although that is inherent within an offence contrary to section 20". 9. Mr Calder rightly makes the point that the section 20 offence involves a lack of intent to cause really serious injury but, in this case, there was not only a lack of intent to cause really serious harm, but a lack of intent to cause any harm at all . We accept that the judge's observation was wrong. The question for us is whether the starting point that the judge took, whether for that or for any other reason, was too high in consequence. 10. When giving leave to appeal, the single judge said this: "The appellant should understand that granting permission has not been an easy decision: this was a highly dangerous act on his part which has had long-term consequences, and the Full Court may well say that the sentence is not to be faulted." For reasons which we shall explain, the single judge's prediction has proved entirely accurate. Analysis 11. In our view, there is no doubt that this was a category B2 case. Category B medium culpability arose because, in accordance with the Guidelines, there was the use of a weapon (in this case, the glass). We do not accept Mr Calder's submission that, because the basis of plea indicated a lack of intent, the categorisation should instead have been category C. That is not what the Guidelines say. Category C is only applicable if no weapon had been used. In addition, it is doubtful whether this assault could be described as impulsive or spontaneous, which is another indication of category C, because the assault with the glass followed the initial throwing of the drink. In this way, to the extent that lack of intent is relevant at all, it will be reflected by way of a possible downward adjustment within the recommended range. 12. There is no dispute that harm was plainly within category 2, because of the permanent scarring to Ms Carroll's face. 13. The recommended range for a category B2 offence is 1 to 3 years with a starting point of 2 years. The next thing to do is consider the aggravating and mitigating factors. There were numerous aggravating factors. In our view, those took this case to the top of the recommended range, if not beyond that top limit of 3 years. Those aggravating factors were that this was an offence aggravated by alcohol; it took place in a domestic setting; and the appellant had previous convictions for violence. More significantly, he had a previous conviction for sending malicious communications to Ms Carroll. Moreover, at the time that he threw the glass, he was the subject of a community order for the offence of sending Ms Carroll those malicious communications. He had, it is accepted, a poor record of compliance with previous court orders. 14. In our view, a further significant aggravating factor can be found in the appellant's reactions after the assault. He told Ms Carroll that she deserved the injury that led to the permanent scarring. He tried to get her not to report the matter to the police and even after she had done so, he sent her offensive messages and told her that it was nothing that a few stitches would not heal. 15. In all those circumstances, a notional term before considering the mitigating factors of 3 years (and probably more) would have been amply justified. 16. Turning to the mitigating factors, we deal first with the lack of intent. We accept Mr Calder's submission that, depending on the circumstances, that can make a significant difference to the sentencing exercise, because it can reduce culpability within the category of the Guidelines. Of course, the extent to which it makes a difference will always turn on the facts. In our view, in this case, it did not make a significant difference. This was a relatively small room with a number of people in. The appellant had just deliberately thrown a drink at Ms Carroll. To then throw a glass in her direction, even if he did not intend to hit her was, as the judge correctly said, "an incredibly reckless thing to do". Thus, the fact that the applicant's action here was "incredibly reckless" rather than deliberate, did not, in our view, justify any or any significant downward adjustment in the notional starting point. 17. As to the other mitigating factors, although it was suggested to the sentencing judge that the appellant had wanted to apologise to Ms Carroll and that he was ashamed, there is no evidence of any of that and we are bound to say that the appellant's post-incident communications paint a very different picture. 18. Accordingly, in our view, this was a case with numerous and serious aggravating factors and very little by way of mitigation. Such cases tend to find themselves at the top of or beyond the recommended range. We consider that such was the case here. Accordingly, we consider that the judge's 3 year starting point was justified. It was not manifestly excessive. Since Mr Calder's measured attack on the sentence is limited to the criticism of the starting point, it follows that for the reasons that we have given, this appeal against sentence is refused. However, we would not want to end this case without again expressing our gratitude to Mr Calder and his extremely clear and concise submissions. 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 645' date: '2023-05-24' judges: - LORD JUSTICE COULSON - 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} ======

Neutral Citation Number: [2016] EWCA Crim 850 Case No: 201504565/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 15th June 2016 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE HOLROYDE MRS JUSTICE MAY DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v JAMES STARK - - - - - - - - - - - - - - - - - - - - - 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 S Reid appeared on behalf of the Appellant Mr G Gelbart appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 4th September 2015, in the Crown Court at Kingston-upon-Thames before Mr Recorder Purchas QC and a jury, this appellant, who is now aged 26 years, was convicted of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861 . He was sentenced to 18 months' imprisonment for that offence. A co-accused was convicted of assault occasioning actual bodily harm and received a sentence of imprisonment of 6 months which was suspended for 18 months with other ancillary orders being made. 2. This appellant now appeals against conviction by limited leave of Sir John Royce. He also seeks to renew his application in respect of three other grounds and for leave to appeal against sentence. 3. The facts can be summarised quite shortly. From about 8.00 pm on 15th November 2014 Ryan Smith, the complainant, had been drinking at various locations including, finally, in the Teddington Arms public house. He accepted that he had drunk far too much and was indeed intoxicated. 4. The co-accused, Daniel Wilson, was also in the Teddington Arms with his pregnant girlfriend. At some stage during the evening there was an incident inside the public house involving the complainant, the co-accused and his girlfriend, after which the complainant was seen with a swelling over his left eye. This was not the subject of an allegation of crime. 5. Shortly after, the complainant went outside the public house and was involved in another altercation with the co-accused. Thereafter, the appellant punched the complainant once. He fell to the pavement. On the pavement it was clear that he had, at least at some stage during the course of that evening, sustained serious injury. An ambulance was called. He was taken to hospital and found to have suffered head injuries including a fracture to the left frontal bone of the skull, an extradural haematoma and a suspected fracture of the left eye socket. It was accepted that he had suffered really serious body injury. 6. The appellant was subsequently arrested and interviewed. He did not require the attendance of a solicitor. He told the police that he had punched the complainant who had fallen to the ground and hit his head. 7. The prosecution case in relation to this appellant was that the punch had caused the complainant to fall to the ground and hit his head on the pavement. The count of assault occasioning actual bodily harm was available to the jury both in relation to the co-defendant and this appellant if they were not sure which blow had caused the really serious harm. 8. The appellant's case was that although he accepted he had struck the complainant he had done so using lawful force to protect the pregnant girlfriend of the co-defendant and prevent further offending by the complainant. Furthermore, in any event, in respect of the count of inflicting grievous bodily harm the prosecution could not establish that it was the blow of this appellant that had caused ultimately the serious bodily injury. Thus, the issues for the jury were: whether really serious injuries had been caused when the appellant struck the complainant causing him to fall and hit his head onto the pavement; whether he had lawful justification or excuse for striking the complainant; whether the degree of force used by the appellant was reasonable in all the circumstances for the prevention of crime or in defence of himself or another; whether the appellant honestly thought at the time it was necessary to use force to defend himself or prevent further crime or, in the alternative, if the jury were not satisfied in relation to the principal count, whether the punch had caused some injury. 9. The evidence flowed from the allegations that had been made. The complainant recalled that he had been involved in an incident inside the public house during which punches had been thrown. He said that he later went outside the public house, saw the co-defendant and recalled saying something like: "Come on, shake hands" but was then head-butted on the bridge of the nose. He had no recollection of what had happened thereafter. 10. More significant, the supervisor of the public house, Polly Wattridge, said she had seen the complainant being calmed down by others inside the public house and had later seen him with a swelling over his left eye. She said that at some time after, he had gone outside the public house and she had seen him fall and hit the concrete pavement. She described his fall as having “fallen like a tree trunk" and having spun round 180 degrees. There was a large amount of blood and he was unconscious. She had remained with him until he regained consciousness and the police had arrived. 11. Evidence was given by Dr Robert Chapman, a consultant forensic pathologist, who expressed the opinion was that, because of their severity, the fractures to the complainant's skull were caused by a heavy fall onto a hard surface. They could not have been caused by the complainant having received a punch and a head-butt. He said that the injuries to the nose were very unlikely to be caused by just pushing but if they had been caused by a punch there was a very low probability (also expressed as only a very slight chance) that it would have caused really serious harm. 12. In cross-examination he was asked about statements from Dr Shackleton (who had advised the defence) in terms that what Dr Shackleton had expressed by way of an opinion was put to him. In our judgment, that is not an appropriate way to cross examine, if Dr Shackleton was not to give evidence, because the questions appear to rely upon the stated but unproved evidence of another doctor, and the jury could then be influenced by the fact that there was an opinion from a doctor which was not adduced in evidence but which supported a particular contention as to the cause of the injuries. 13. Putting that point to one side Dr Chapman agreed that it was not possible to be completely sure whether the injuries were caused by the fall to the ground or the earlier punch to the left eye and that a previous injury causing some degree of stunning in combination with alcohol intoxication would have made the complainant more vulnerable to any later episode of trauma. His opinion was quite clear: i. "Q. So finally, what caused the really serious injuries to Ryan Smith? A. In my opinion it was a heavy and unprotected fall to the ground." 14. Notwithstanding that clear expression of opinion Dr Chapman accepted that in medical science certainty was never possible and when asked to express the percentage of certainty of his opinion spoke in terms of 95%. He thought it unlikely that the complainant would have been able to stand up, walk about and engage in a fight after he had suffered a serious injury. 15. In his defence the appellant gave evidence and said that he had been one of those who had assisted in separating the co-accused and the complainant following the first incident inside the public house. He accepted that in the second incident he had hit the complainant but said that he had done instinctively as a reaction as to what was happening and because he wanted to bring it all to the end to stop further fighting. He said he had acted reasonably in the circumstances and had not had the opportunity to weigh up precisely how much force would be necessary for him to be used. He did not accept he was responsible for causing the serious skull fracture and haematoma. He said that when he was interviewed by the police he had given a clear account of what he recalled had happened. 16. The co-accused also gave evidence in accordance with what he had said to the police. He said that he had not taken part in any joint enterprise with the appellant and neither punched nor head-butted the complainant. His girlfriend spoke of the insulting remarks that she had received in the public house and the altercation which her boyfriend had with the complainant. She also said, as indeed was common ground, that the co-accused had pushed the complainant in the face. 17. The grounds upon which this appeal is mounted revolved to no small extent around the evidence of the cause of the serious injuries suffered by the complainant. An application was made to dismiss the charge at a time when the appellant was charged with only grievous bodily harm. The Recorder observed that there was evidence on which the jury properly directed could be sure that some of the injuries were caused by the complainant's forehead hitting the pavement which was an immediate effect of the appellant's blow. 18. Now challenging that conclusion Mr Reid argues that at the time the appellant only faced a charge of grievous bodily harm and there was no sufficient evidence as to causation so the jury properly directed could not be sure the relevant injury was inflicted during the part of the incident in which the applicant was involved as opposed to an earlier incident. This of course involves the conclusions based upon what had happened in the absence of the evidence of Dr Chapman. 19. The single judge observed that on the papers there was evidence after the attack in the public house that the complainant was able to get up and walk about. There was evidence from which it could be concluded that the blow from the applicant was of such force as to cause him to go to the ground without protecting himself so he hit himself on the pavement with considerable force and as a result lost consciousness as a result of the blow. A permissible inference would be that serious harm was caused directly or indirectly by the blow, such the Recorder was entitled to reject the application. We agree with that conclusion. 20. The second ground of appeal, which is also a renewed application, is that the trial should have been stopped at the close of the prosecution because Dr Chapman had accepted that when the really serious injuries had been inflicted could not exactly be determined with a likelihood of only 95% that they had resulted from an incident outside the public house. The small chance that they did not result from the punch was too large to allow for a safe conviction. 21. The single judge rejected that submission, observing that the jury would be entitled to take into account all the evidence as to the circumstances of this injury. The fact that the doctor put forward a figure of 95% did not lead to the conclusion that the count should be withdrawn. In particular the jury had to take into account the evidence of Polly Wattridge that he fell like a tree trunk and then was rendered unconscious. 22. In our judgment, again, the learned single judge was correct to reject this ground of appeal. The opinion of the doctor, which is a fact upon which the jury were entitled to rely, was that the heavy and unprotected fall to the ground had caused those serious injuries to argue that the that his differentiation between his opinion and medical certainty justifies a submission of no case to answer is not tenable. 23. The third ground of appeal concerns the structure and nature of the summing-up in which it is said that the applicant's primary defence was confused with the defence of self-defence, which had not been relied upon by the applicant. Suffice it to say that we agree with the observations of the single judge that the Recorder dealt correctly with the unlawful element of the offence of inflicting grievous bodily harm and the direction was adequate to cover the facts of the case and the applicant's defence. 24. Mr Reid recognised that the judge used the phrase "he was or may have been acting in lawful defence of himself or another or may have been using reasonable force in prevention of crime". That deals sufficiently with the complaint as to the way in which the law was articulated. Furthermore and in any event, the judge adopted submissions made by Mr Reid after he had concluded his summing-up in relation to the law and gave the jury a full direction. 25. The final ground of appeal which is the ground upon which the single judge granted leave concerned the fact that the learned judge failed specifically to remind the jury of Dr Chapman's evidence on causation. The judge when summing-up the case to the jury gave a perfectly standard direction dealing with expert evidence, saying: i. "... the expert evidence is called to assist you and to deal with matters which are within the expertise of the witness but are likely to be outside your own experience or knowledge. The evidence given by the expert is not binding on you. It is hoped it is of some assistance to you when you are considering the matters that you have to decide and it is necessary to look at it in its proper perspective, which is that it only forms part of the evidence as a whole. At the end of the day, members of the jury, it is for you to decide, your decision on the various matters you have to decide, in view of all the evidence which you have heard. Of course, when doing that you can take the witness's opinion into account in coming to your own conclusions." 26. It is entirely correct that the learned judge did not summarise the evidence of Dr Chapman although he did make it clear that this appellant's defence was that although he accepted that he struck the blow he did not accept the blow was the cause for serious injuries, the fractured skull and the haematoma. The judge also reminded the jury of the evidence of Polly Wattridge, to the effect that she saw the complainant fall "like a tree trunk and spinning around about 180 degrees", by which stage he was unconscious with blood all over the place. 27. The learned judge could properly have included within his summing-up a short summary of that which Dr Chapman had said, albeit it is important to underline that this trial had taken only some slightly over two days in its entirety. Dr Chapman had given evidence the day before speeches and summing-up and it is beyond doubt and indeed confirmed by counsel that some attention was paid to Dr Chapman's evidence by both. 28. When the judge came to sum-up Mr Reid drew his attention to the judge's failure to deal with aspects of self-defence but made no complaint at all about the failure to deal with Dr Chapman's evidence in extenso. This was notwithstanding that twice he was asked whether there was any aspect about which he wished to make complaint. Mr Reid explains that he was focusing on the legal direction and had not appreciated that the learned judge had not dealt with what Dr Chapman had said. 29. It is important to underline, as has been identified in the Review of Efficiency of Criminal Proceedings, that the judge's obligation is to remind the jury of the salient issues in the case and save in the simplest of cases the nature of the evidence to relevant to each issue. This need only be in summary form to bring the detail back to the minds of the jury including a balanced account of the issues raised by the defence. It is not necessary to recount all relevant evidence (see paragraph 310). 30. That recommendation is now incorporated in the Criminal Procedure Rules 2015 and 25.14, which requires that the court (a) to summarise for the jury "to such extent as is necessary" the evidence relevant to the issues they must decide. It is for the judge to decide the extent to which it is necessary to reiterate the evidence which the jury had heard only the previous day and which had been the subject of submissions by counsel. He certainly left the issue, namely whether the blow inflicted by the appellant had caused really serious injury to the jury and he made it clear that that was one of the issues in the case. Although, as we have said, it might have been better had the judge devoted a few sentences to a summary of that which Dr Chapman had said to suggest that his failure to do so renders this verdict unsafe is to go too far. 31. In the circumstances this appeal against conviction dismissed. 32. In relation to sentence, Mr Reid refers to the appellant's prior good character and the fact that the learned judge identified, correctly, the starting point of 18 months' imprisonment as a category 2 case within the guidelines issued by the Sentencing Council before going on to accept that there were a large number of mitigating circumstances that could be taken into account, not only his good character but also the fact that this was a single blow, the appellant was remorseful and that he had an excellent character and had done very well despite the difficulties in his past. Mr Reid argues that having identified these mitigating features and the starting point he failed to reduce the starting point to take those into account. That submission fails to reflect the fact that although not identified as aggravating features, there is no doubt that the judge noted the features, namely that this incident occurred in a public house, had caused lasting harm and was the result of intoxication. These features are potentially aggravating. For our part, whereas we have come to the conclusion that this sentence was at the top of the range available to the learned judge, we are not prepared to conclude it is either wrong in principle or manifestly excessive. The renewed application for leave to appeal against sentence is also refused.

```yaml citation: '[2016] EWCA Crim 850' date: '2016-06-15' judges: - MR JUSTICE HOLROYDE - MRS JUSTICE MAY 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. 2006/00890/A5 Neutral Citation Number: [2006] EWCA Crim 1182 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Wednesday 3 May 2006 B e f o r e: PRESIDENT OF THE QUEEN'S BENCH DIVISION ( Sir Igor Judge ) MR JUSTICE HENRIQUES and MR RECORDER FULFORD _______________ ATTORNEY GENERAL'S REFERENCE No. 21 of 2006 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - FAHD EL AZIZ ABADA __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MISS B CHEEMA appeared on behalf of THE SOLICITOR GENERAL MR L WATTS appeared on behalf of THE OFFENDER ____________________ J U D G M E N T Wednesday 3 May 2006 THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: 1. This is an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 1998 for leave to refer a sentence of three years' detention in a young offender institution imposed on 26 January 2006, in the Crown Court at Warwick, by His Honour Judge Coates, following the offender's plea of guilty to an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class A controlled drug contrary to section 170(2) of the Customs and Excise Management Act 1979 . We grant leave. 2. The offender, Fahd El Aziz Abada, was born in December 1986. He is now 19 years old. At the date with which we are directly concerned he was 18 years old. The drug which he imported into this country was cocaine; it weighed 1.2 kilogrammes and was of 100 per cent purity. 3. The facts are that the offender, who was in debt (we shall come to the circumstances of his indebtedness), was recruited to act as a courier or "drugs mule". On 29 September 2005 he flew into Birmingham International Airport on a flight from Brazil. He was stopped and his baggage was searched. Among other things he was carrying a cardboard box of toys within which there was 1.24kg of cocaine at 100 per cent purity. The approximate street value was £151,000. 4. The offender pleaded guilty and expressed remorse. There was evidence to suggest that the remorse was genuine. 5. The facts of the importation can be traced to a flight reservation made by telephone on 5 September 2005 for a flight from Newcastle to Rio de Janeiro departing this country on 11 September 2005. The price was £788. On 6 September the offender went to the offices of the company responsible for the ticket. He paid for it in cash. He produced a British passport which identified him correctly. The flight was confirmed. 6. At about 4.40pm on 29 September he was intercepted at Birmingham International Airport. He told the Customs officer that he had travelled from Sao Paulo, where he had gone to meet up with friends. He said that he was an IT student who had been studying in Hammersmith. He handed over an E-ticket for KLM airlines showing travel from Brazil via Amsterdam to Birmingham. He said that, despite having a return journey booked for 10 October 2005, he would not be travelling back to Brazil. He said that he had intended to travel back a week earlier but had missed his flight, although his luggage had gone ahead of him, travelling to the United Kingdom on the flight that he had missed. He produced his outward flight ticket. He explained that he had flown out from Newcastle as it was the cheapest flight available. Following this convoluted story, not surprisingly, the investigating officer became suspicious. 7. The offender was then questioned about his backpack. He confirmed that he had packed the bag himself; nobody had given him anything to bring into the United Kingdom. The bag was searched. A few items of clothing were found together with four boxes wrapped in plastic which contained children's toys. A scan of one of the boxes produced a positive reading for cocaine. In due course a further examination revealed small packages wrapped in brown tape stuck down between two pieces of cardboard. One of the packages was field tested and there was a positive reaction to cocaine. The offender was arrested on suspicion of being involved in the importation of a controlled substance. 8. Scientific examination of the boxes revealed a total of 1.97 kilogrammes of powder containing cocaine which at 100 per cent purity was the equivalent of 1.24 kilogrammes. 9. The offender was interviewed under caution. He gave a long, detailed description of how he had become involved as a courier of cocaine. He told the investigators that a man known to him as Michael, with whom he used to play football on a weekly basis, had told him about an acquaintance of his who could arrange for the offender to be paid £5,000 if he would go on holiday and bring the package back into this country. When asked if he was interested, the offender confirmed that he was. Michael said that he would ask his contact to call the offender to make arrangements. The offender said that he owed friends and family up to £3,000, together with nearly £800 to the mobile telephone company. 10. In late August the offender was contacted by another man known as "BX". The offender met BX in a bar in Stratford and confirmed that he was interested in going abroad for him. BX said that he would be in touch. In his interview the offender admitted that he suspected that the arrangement involved the carrying of drugs, but he said that he did not ask any questions and he did not know or seek to discover what kind of drugs would be involved. Thereafter he met BX on a number of occasions during the following weeks to make the arrangements and preparations for his trip. He was then told that he would be travelling to Brazil. During the course of these meetings he was provided with smart and casual clothing to take with him to Brazil and a mobile telephone. He was then taken to Dial-A-Flight in Croydon and given £1,000 in cash to buy his aeroplane tickets. He was allowed to keep the change. When he was interviewed, he was shown a photocopy of an invoice for the journey and confirmed that this was the documentation with which he had been provided. 11. On 11 September 2005, he travelled with BX by train from King's Cross to Newcastle. He had with him a holdall containing his clothes. At Newcastle BX gave him £100 in sterling and a quantity of dollars. The offender took a taxi to the airport on his own. BX told him that he would be met by someone at the other end. He was told to go to an address in Rio. When he arrived in Rio, the offender telephoned BX. He was told to stay in the hotel. Two days or so later BX told him to travel to Sao Paulo, there to meet up with a man called Frank. The offender did this. 12. On 17 September, the day before he was due to fly home he was given some tights with drugs in them to wear under his trousers. He put on the tights and travelled back to Rio. He travelled to the airport on 18 September to catch his return flight. He checked in a suitcase which he had purchased in Sao Paulo. He was wearing the tights which contained the drugs. He became scared. He had a feeling that he would be caught. He telephoned BX and said that he did not feel able to go through with the plan that day. BX told him to return to the hotel. 13. A new flight was booked for 28 September. On this occasion he was given some boxes by Frank and another man to carry back with him. He was told that they contained toys and that "it" was in between the cardboard. The offender knew that "it" was a reference to drugs, and he strongly suspected it was cocaine. On this occasion he boarded the aeroplane. He expected to meet BX on his arrival. He was intercepted after he had collected his luggage and he was arrested. 14. It was accepted by the Crown (and the long narrative we have given serves to demonstrate it) that during the course of this interview the offender provided the police with all the details he knew about BX, about Michael, and about Frank, including mobile telephone numbers and physical descriptions. In practice it is unlikely that the information that he provided would be sufficient to track down any individual. There is no evidence that any of the material was of any particular value. Nevertheless, the offender appears to have done everything he could to assist the authorities. Either that reflects the offender's naivety, which Mr Watts suggested is a feature of this case, or he wanted to co-operate, having been caught. 15. Other than two minor irrelevant matters, the offender has no previous convictions. 16. In his submissions to us (and indeed in his submissions to Judge Coates) Mr Watts fashioned a powerful and moving submission that this was, and should be treated as, a very rare case indeed, in which there is a totality of mitigation that makes the sentence actually passed on the offender, if lenient, properly so, and one in which an appropriate degree of mercy was rightly exercised. We have been supplied with many positive testimonials. We have read a letter from the offender. Unlike many of those convicted of this kind of crime, his immediate focus is not himself. He writes: "I have let down my parents and feel ashamed as they have brought me up to be a law-abiding citizen. I worry that I have caused them many sleepless nights and that the unnecessary stress may cause my mother's condition (multiple sclerosis) to deteriorate further." The letter ends: "I hope that you will take mercy on me and forgive me for my actions and I also hope my parents will forgive me for dragging them in such a situation." 17. The reference to his mother's illness is important. There is much detail about it in our papers. We do not propose to ventilate those details in public. Suffice it to say that some two years before this offence was committed, when the offender was still only 16 years old, his parents' marriage broke down and they separated. That meant much more than the customary depressing story of the effect on children in a close family unit of the destruction of that family. The offender's mother was, and remains, wheelchair bound. She suffers from multiple sclerosis. She needs continual care. The family includes a cousin who became a member of the household. She has psychological or psychiatric problems. In addition, there are two younger siblings. For the first eighteen months or so the offender maintained his attendance at college to try to keep up with his studies. But he became increasingly responsible for the running of the family household. Money was tight, resources were restricted, and he ran into debt. To try to maintain the home for his family, to support his mother and the younger members of the family, the offender did everything he could. He tried to find work, but in the end could not balance that against the need for him to be at home. The debt of about £3,000 was gradually incurred. It was this debt that he hoped to pay. At the time it seemed (and no doubt reasonably) to him to be a huge amount and he fell into the temptation to commit this offence. It was not a debt incurred by someone using drugs himself or to feed his own habit, nor indeed a debt incurred by someone in pursuit of his own selfish pleasures. 18. We acknowledge that this personal mitigation is important. There is true mitigation. The judge was told of, and was plainly impressed by, the response of the offender when he was discovered importing the drugs at Birmingham International Airport. He was as direct and straightforward in his response as he could be. He did what he could to help the authorities. The judge had that well in mind, and so do we. The offender's later plea of guilty at the first available opportunity was entirely consistent with his behaviour from the moment he was caught and he was entitled to full credit for it. 19. This was a very serious case involving a very serious crime, committed by a young man without any effective previous convictions and who had genuine mitigation to advance. The very experienced judge indicated that he had in mind the sentencing guideline cases. It is apparent from reading the transcript that there was a degree of confusion about precisely what the guideline indication as a starting point after a trial for this class of case should be. As we read it in the transcript of his eventual sentencing remarks, the judge took the view that this sort of trafficking would merit "a sentence of as much as ten years if there had been a trial, and if your importation had been as high as 5 kilogrammes at 100 per cent purity". Now is not the time to embark on an analysis of the guideline authorities on this subject, but it looks to us as though the judge had not fully addressed the range of sentences. In our view, given the amount of cocaine at the purity of 100 per cent that was brought into this country, the starting point should have been in the range of eleven to twelve years. 20. As we have said, for a young man suddenly faced with huge emotional burdens and heavy responsibilities, whose response to the discovery of his crime was positive and where the remorse was genuine, there was real mitigation. The judge addressed that mitigation point by point in his sentencing remarks. There is no doubt that he had every point well in mind. We have reminded ourselves of those points. We have also noted a positive report on the offender from the place where he is currently incarcerated. 21. The problem with this type of case is simply addressed. So very often the couriers have a tragic story to tell. They become involved because of some profoundly taxing personal problem: for example, a grandmother will import drugs in order to pay for an operation for a severely disabled grandchild. Sympathy mitigation based on these personal considerations is rightly deployed. But personal mitigation in this kind of case must be set in the context that offenders have committed an offence which carries so much potential for disaster. 22. The question is whether the sentence imposed by the judge was so merciful that in the end as a total sentence it cannot be allowed to stand. We have made every allowance that we can for the personal mitigation. We are nevertheless satisfied that for this young offender it was unduly lenient -- markedly so, and that we should interfere with it. If we did not, we should in effect be creating a significant inconsistency between the sentence to be imposed on him and the sentence imposed on others who have their own profound personal mitigation. We recognise the significance of double jeopardy in a case where the offender is a young man who has responded very positively to the sentence already imposed on him. But making every allowance for all these matters, and for Mr Watts' persuasive efforts to enable the sentence imposed by the judge to be sustained, we have come to the conclusion that we cannot do so. The sentence will be quashed. In its place there will be imposed a sentence of five years' detention to replace the sentence of three years' detention in a young offender institution.

```yaml citation: '[2006] EWCA Crim 1182' date: '2006-05-03' judges: - MR JUSTICE HENRIQUES - THE CRIMINAL JUSTICE ACT 1988 ```

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Case No: 200700312 C3 Neutral Citation Number: [2009] EWCA Crim 1304 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ST ALBANS HHJ FINDLAY-BAKER QC T20057349 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/07/2009 Before : LADY JUSTICE HALLETT MR JUSTICE PENRY DAVEY and MRS JUSTICE GLOSTER - - - - - - - - - - - - - - Between : Regina Appellant - and - Derek Symmons 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 7404 1424 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr E Fitzgerald QC and Mr P R Taylor (instructed by Birds ) for the Appellant Ms F Oldham (instructed by Central Criminal Court Trials Unit ) for the Respondent Hearing dates: 17 th June 2009 - - - - - - - - - - - - - - Judgment Lady Justice Hallett: : 1. The appellant and his wife lived together for 37 years. By 2005 their marriage had been on the rocks for some time. Mrs Symmons described the appellant as controlling and frightening. He bugged her telephone calls. She was scared he might kill her. He claimed she was the one who was over assertive and in control of their relationship. He accused her of taunting him about his impotence and being rude about his mother. 2. She discovered he was having an affair and began divorce proceedings. They went to see a marriage guidance counsellor. Mrs Symmons began distributing her money and property in case anything happened to her and to prevent the appellant finding them. 3. On the evening of 5 th September 2005 they went together to see the counsellor, they had dinner and returned home. That night the appellant killed his wife. He battered and strangled her to death. He claimed he was acting in self defence and because he was provoked. He wrapped his wife’s body in polythene, put her in the boot of his car and drove to France. He was in touch with his mistress on the way. 4. He was tried at the St Albans Crown Court before HHJ Findlay-Baker QC and convicted of murder on 11 December 2006. He was sentenced to life imprisonment with a minimum term of 16 years. He appealed against conviction on a number of grounds, based for the most part on fresh medical evidence relating to his mental state at the time of the killing and at trial. Although two experienced psychiatrists had assessed the appellant for the purposes of the trial and opined that he was not suffering from a depressive illness at the time of the killing, the defence instructed Professor Eastman to make another assessment post conviction. On the basis of the appellant’s account to him, the professor was of the opinion the appellant may have been suffering from a depressive illness at the time of the killing. This may have amounted to an abnormality of mind as defined in the first limb of section 2 of the Homicide Act 1957 . The doctor had doubts, however, about whether the appellant could overcome the hurdle in the second limb of section 2 of establishing that his responsibility for his actions was substantially diminished. This court differently constituted, presided over by Dyson LJ, heard the appeal and decided to hear from Professor Eastman de bene esse. 5. On 7 th April 2009 the appeal against conviction was dismissed. We do not need to rehearse the facts and the arguments to any greater degree which are clearly set out in the judgment of the court delivered by Dyson LJ. Suffice it to say the court rejected the factual premises of Professor Eastman’s opinion and therefore rejected the opinion itself. Professor Eastman relied heavily upon the appellant’s account of his own symptoms which the court found “wholly unreliable”. Far from accepting the appellant was suffering from depression at the time of the killing the court was of the view there was evidence which pointed the other way. It was hoped that the same constitution would hear the appeal against sentence but this has proved impossible. 6. We begin with the judge’s sentencing remarks the relevant parts of which have been helpfully summarised for us. The trial judge stated that he would sentence on the basis (a) The killing was an impulsive act and therefore unplanned; (b) The intention was to kill; (c) Neither self-defence nor provocation played any significant part; (d) The personality disorder upon which the appellant relied did not significantly reduce the culpability; (e) The conduct after the killing was cold and callous and a significant aggravating feature (f) His age was “a factor to be considered” and “to a lesser extent [his] good character”. 7. Mr Fitzgerald QC argued the minimum term of 16 years was excessive for two principal reasons. First, the appellant is in his early sixties. If the minimum term of 16 years stands, he will be 78 at his earliest release date. He may die in prison. This was clearly a case in which a whole life tariff would not have been justified yet this may be the effect of a tariff of 16 years. This is a relevant factor which, Mr Fitzgerald insisted, the judge failed sufficiently to acknowledge. Mr Fitzgerald referred us to two decisions of this court on the issue of the relevance of age to the setting of a minimum term. The first was Malcolm Horsman 2007 EWCA Crim 2589 . Moses LJ giving the judgment of the court stated in the final line of para 9: “he can hardly rely to any great extent upon his age bearing in mind that he chose to kill his wife when he was already 65 but it is something that we take into account because the impact of a life sentence on an older man must be greater.” 8. Moses LJ went on to observe the court was prepared to reduce the minimum term for a number of other reasons which had nothing to do with age and stressed: “in doing so we are not in any way seeking to create a precedent or guidance in these difficult cases where an older man of intelligence commits so serious an offence. But this case has particular features….” 9. Those “particular features” do not apply to Symmons’s case. Nevertheless, Mr Fitzgerald sought to rely upon what was, in our judgment, a fact specific decision. He also relied upon Daniel John Archer 2007 EWCA Crim 536 . Archer was sentenced to a minimum term of 30 years. Burton J giving the judgment of the court said this at para 31: “ We are clear that the authorities to which we have been referred by the appellant and indeed a common sense construction of para 11 (g) (of Schedule 21 of the Criminal Justice Act 2003) must mean that one of the factors which will be taken into account in relation to a sentence as long as 30 years or less in terms of serious crimes is the possibility of light at the end of the tunnel…..” 10. The court decided to reduce Archer’s minimum term to 25 years so that he would be eligible for parole aged about 78 as opposed to aged about 83 years. Although the minimum term set in that case was one of 30 years, Mr Fitzgerald sought to extrapolate from it the proposition that if, in reality, (based upon actuarial presumptions of life expectancy), an offender may die in prison, the court should reduce any minimum term to allow for “light at the end of the tunnel”. 11. The second principal ground of appeal relates to the mitigating and aggravating features of the case. Mr Fitzgerald argued there was here an abundance of mitigating features and an absence of aggravating features, other than the attempt to escape to France (texting his mistress on the way) with the deceased’s body wrapped and stuffed in the boot of his car. Mr Fitzgerald reminded the court the attempt to conceal the body did not last long. When the appellant’s daughter phoned him enquiring after her mother he came to his senses and gave himself up to the French authorities. He consented to extradition to England for trial. 12. As for the mitigating features Mr Fitzgerald argued it was important to note the judge found this was an impulsive and unplanned killing. If that is so, something must have happened after dinner which triggered the appellant’s reaction. Mr Fitzgerald invited the court to accept it must have been, as the appellant claimed, that the deceased taunted him with his baldness, about his mother and about his impotence. He reminded the court there was independent evidence that she had mentioned his impotence in the past. 13. Accordingly, Mr Fitzgerald rather boldly submitted the trial judge was wrong to dismiss provocation as relevant to sentence. The difficulty with that argument, to our mind, is that the prosecution asserted confidently that there never was any taunting. Their confidence was based on the fact the appellant made no mention of being taunted when he spoke first to the French and the British police. The jury’s verdict indicates they accepted the prosecution case to a large extent. There was also compelling evidence before the jury, including evidence from the appellant’s own son and daughter that he is a “master of spin”, very controlling and not one to be crossed. There was, therefore, ample justification for the judge’s description of his version of events as a “web of deceit”. 14. As the judge observed in his sentencing observations: “I conclude that you killed your wife in an impulsive act when, uncharacteristically, she stood up to you. Nothing she said or did justified any violence on your part let alone the extreme and savage beating and strangling that you meted out to her”. 15. We reject, therefore, as being totally without foundation, the assertion that it was not open to the trial judge to make the findings of fact to which the appellant takes exception. It was. 16. Next Mr Fitzgerald had intended to rely upon both the fresh medical evidence and the effects of the appellant’s “mental history”, to which he suggested the judge gave insufficient weight. Given the comprehensive rejection of Professor Eastman’s opinion in the judgment dismissing the appeal against conviction, Mr Fitzgerald was forced to adopt a fall back position. He reminded the court the appellant had a “history of depression” and it was accepted at trial that he suffered from a personality problems and hypersensitivity. This he translated into the contention that the appellant is not a “normal healthy person” and some allowance should be made for that fact. 17. Mr Fitzgerald and his junior produced a schedule setting out the history of the appellant's mental condition and “personality problems” which went as far back as the appellant's birth and bed wetting between the ages of 6-12. We were referred to a family history of depression. The appellant himself had a breakdown in 1988 and a “recurrence of depression” in 2002. Following the breakdown he was prescribed Viagra for erectile dysfunction. In 2000/2001 he claimed he ran upset from a restaurant when his wife was rude about his mother. In 2002 there is evidence that his wife mentioned his impotence. In 2002/3 the appellant bugged his wife and reacted with great anger to her affair. In 2004 he began a sexual relationship with his lover Myra. In August 2005 the deceased made a doctor’s appointment for him. On the day of the killing, he was described as “not looking his normal self” and was given a diazepam tablet. 18. We accept that this history may show two things: i. he is the kind of man who may overreact to events and ii. he may have been troubled by emotional problems at the time of the killing. However, his problems were far from uncommon. The fact is he was not suffering from a depressive illness at the time he beat and strangled his wife. His actions were not the result of any illness or mental disorder. They appear to have been prompted by rage at his wife’s infidelity and her refusal to accept his authority. The appellant may not have been feeling at his best, but that is a far cry from saying that he deserves a reduction in his sentence. Many people have been through far worse than the appellant and have not resorted to murder. In any event the judge bore in mind his “personality problems” and was able to assess them for himself. His finding that they did not diminish the appellant’s culpability was entirely open to him. The appellant’s mental state may have deteriorated after the event but that is hardly surprising. 19. Finally, Mr Fitzgerald drew our attention to the fact that the appellant has responded positively to his time in prison and there are good reports upon him. We note, however, that, it would appear from the prison reports that he continues to attempt to justify his conduct by reference to the same self serving account rejected by the judge and jury at trial. 20. We have come to the following conclusions: the appellant stood to be sentenced on the basis he lost his temper with his wife and launched a sustained and savage attack upon her. Although the murder was in no way pre-meditated, at the time, he intended to kill her and ensured he did so. Afterwards, he behaved in an appallingly cold blooded and cold hearted way, no doubt adding considerably to the distress of his own children. This is a significantly aggravating feature. The appellant did not have the benefit of a plea of guilty or expressions of genuine remorse, but he is a man in his early 60s who does have the benefit of a good character. 21. On the question of the appellant’s age, we accept that it may well be a material consideration that the effect of the minimum term could be to sentence an offender to die in prison. The judge may not have referred expressly to that possibility in his sentencing observations, but he did refer expressly to the appellant’s age. It was obvious to all that the appellant is a man of mature years and previous good character upon whom any prison sentence, let alone a life sentence, will weigh heavily. The inevitable consequence of a 62 year old man’s committing a murder, for which the agreed starting point is a minimum term of 15 years imprisonment (to serve), is that he is going to grow old if not die in prison. His age, therefore, cannot be determinative of the finishing point; it is but one factor to be borne in mind as part of the sentencing process. 22. We have borne very much in mind all the circumstances of this offence and this offender, as put before us by Mr Fitzgerald, with his customary skill. However, sentencing is not a mathematical exercise. The aggravating and mitigating features in Schedule 21 of the Criminal Justice Act 2003 are not exhaustive; nor are they prescriptive in the sense that they prescribe a specific level of uplift or discount for the presence or absence of aggravating or mitigating features. The trial judge must assess this for himself and is best placed to do so. He must assess the offender, his culpability and the gravity of offence, balancing the aggravating and mitigating features. This is precisely what HHJ Findlay-Baker QC did here. The trial judge will usually have, and this trial judge clearly had, a feel for the case which the members of this court cannot match. For all these reasons, we are not persuaded that a minimum term of 16 years can be described as manifestly excessive. 23. The appeal against sentence must also be dismissed

```yaml citation: '[2009] EWCA Crim 1304' date: '2009-07-03' judges: - LADY JUSTICE HALLETT - MR JUSTICE PENRY DAVEY - MRS JUSTICE GLOSTER ```

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Neutral Citation Number: [2019] EWCA Crim 1456 No: 201902303/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 6 August 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GOSS MR JUSTICE KNOWLES R E G I N A v OSMAN AWAN Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Miss L Brown appeared on behalf of the Appellant Mr L Chinweze appeared on behalf of the Crown J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: This appellant pleaded guilty before a magistrates' court to an offence of harassment, contrary to section 2 of the Protection from Harassment Act 1997 . That is a summary only offence, but the appellant committed it in breach of a suspended sentence imposed by the Crown Court. He was therefore committed for sentence to the Crown Court at Bradford. On 23 May 2019 he was sentenced to two months' imprisonment for the offence of harassment. His suspended sentence was reduced in length from nine months to six months, but activated consecutively, so that the total sentence was eight months' imprisonment. In addition, a restraining order was made. The appellant does not challenge the prison sentence, but appeals by leave of the single judge against the restraining order. 2. The appellant is now aged 36. For about 14 years he was in a relationship with Gemma McDade. There are four children of that relationship. The couple separated on 3 February 2019, at which time the children were aged nine, seven, five and eight months. 3. The suspended sentence to which we have referred was imposed on 24 November 2017 in respect of an ugly incident at the family home on 30 April 2017. Not for the first time, police were called to the house by Miss McDade. In the course of the incident the appellant struck Miss McDade, he inflicted grievous bodily harm on a police officer who fell down the stairs as the appellant struggled to resist arrest, and finally the appellant escaped from lawful custody. The appellant pleaded guilty to those offences. He had no previous convictions. He was sentenced to a total of nine months' imprisonment suspended for 18 months. He was required to perform unpaid work and a rehabilitation activity requirement was also imposed. 4. On 16 August 2018 the appellant was brought back before the Crown Court, having breached the requirements of the suspended sentence order, apparently by failing properly to perform his unpaid work. A number of additional hours of unpaid work was added to the order. 5. It appears that during the period of the suspended sentence the applicant and Miss McDade resumed cohabitation for a short time. However, the relationship then broke down again and in early February the appellant left the family home at Miss McDade's insistence. 6. The offence of harassment was committed between 12 and 27 February 2019, following the breakdown of the relationship. During that period the appellant sent about 400 text messages to Miss McDade. Their content was a mixture of abuse, expressions of love, apologies for past misconduct, pleas for a further reconciliation and self-pity. Miss McDade's replies, comparatively few in number, made it clear that she no longer wanted to live with the appellant. Nonetheless, on 24 February 2019 the appellant went to the family home and refused to leave. He stayed for about four hours until eventually the police were called. Miss McDade did not want to pursue a prosecution in that regard, but thereafter the appellant continued to call and text her. He also texted one of her sisters, Kelly McDade, saying that he wanted to kill both himself and Gemma McDade if she would not take him back. Matters were at that stage reported to the police. The appellant attended the police station voluntarily but made no comment when interviewed under caution. 7. At the sentencing hearing, the judge was assisted by a pre-sentence report. He was also provided with a victim personal statement from Miss McDade dated 17 April 2019, in which she complained that the appellant was spreading malicious lies about her amongst her family and friends, and that he was also telling lies about her to their oldest son at times when he had contact with the children. It does not appear that prior to that hearing any specific enquiries had been made of Miss McDade as to whether she sought the protection of a restraining order. Counsel then appearing for the prosecution nonetheless invited the judge to make such an order, prohibiting contact with either Miss McDade or her sister Kelly and also prohibiting the appellant from going to Miss McDade's home. 8. We understand that Miss McDade had been in contact with the social services department which was therefore aware of the situation but had not found it necessary to take any action in relation to any of the children. There were no proceedings in the family court or indeed in any civil court between the parties. Miss Brown, then (as now) appearing for the appellant, informed the court that the appellant was living with his mother and was having contact with the children, the arrangements being made through another of Miss McDade's sisters, namely Joanne Garnett. Miss Brown asked that the restraining order, if one be imposed, should be qualified so as to permit the appellant to contact Miss McDade via a third party in order to arrange contact with the children. The judge indicated that any such contact should be through the appellant's solicitor. Miss Brown responded that the existing arrangement had worked satisfactorily without the involvement of any professional and that the cost of engaging a solicitor would be a considerable burden for the appellant. Counsel then appearing for the prosecution submitted that any contact in connection with seeing the children should be made through a solicitor. 9. The judge in his sentencing remarks rightly emphasised the seriousness of persistent harassment of Miss McDade at a time when the appellant was subject to a suspended sentence for offences which included assaulting her. He imposed the prison sentences to which we have referred and against which there is no appeal. He concluded his sentencing remarks as follows: "I make the restraining order in the terms sought by the prosecution, with the addition of the words 'Save and except for the purposes of arranging contact, such contact to be through the defendant's solicitor and the solicitor acting for the complainant in this case.' You will pay the victim surcharge." 10. Miss Brown advances two grounds of appeal against the restraining order. First, she submits that the imposition of a restraining order without any limitation of time was both wrong in principle and manifestly excessive. Secondly, she submits that the judge erred in imposing a prohibition which in practice severely impedes the appellant's ability to have contact with his children. 11. In support of these grounds, which she has advanced in her oral and written submissions, Miss Brown relies upon principles set out by a constitution of this court in the case of Khellaf [2017] 1 Cr.App.R (S) 1. As to the duration of the order, she submits that the harassment took place over a period of about two weeks at the end of a 14-year relationship. She submits that the appellant has, albeit belatedly, accepted that his relationship with Miss McDade is indeed over and she submits that it is reasonable to expect that matters will settle down over a period of time. In those circumstances she submits the making of an indefinite restraining order was unnecessary. 12. As to the proviso to the restraining order intended to permit contact with the children, Miss Brown submits that the appellant cannot in practice take advantage of that proviso as he has no solicitor, and nor does Miss McDade. The order, submits Miss Brown, interferes with the right of the children to a family life, as well as interfering to a disproportionate extent with the appellant's rights. 13. For the respondent, Mr Chinweze, for whose written and oral submissions we are similarly grateful, sets out for the consideration of the court views very recently expressed by Miss McDade to the effect that she wants no contact with the appellant and wishes him to be restrained from contacting her, but that she has no objection to his being able to have contact with the children of the family. In this regard, two possible intermediaries are proposed : Miss McDade's sister Joanne Garnett, and a cousin of the appellant, namely Wajid Choudry. Mr Chinweze suggests that if the order is to be subject to a proviso permitting contact with the children, it should also contain a prohibition on the appellant approaching within 100 metres of Miss McDade's home. We see force in that suggestion, bearing in mind that the start and end of contact meetings with the children would potentially be a time when emotions between the adults might run high. We do not however think it appropriate to make an order in terms which do not specify Miss McDade's present address, because such an order would carry the risk that if there was a change of address not notified to the appellant he might unwittingly act in breach of it. Mr Chinweze acknowledges the submissions made against the indefinite duration of the order, but invites the court to consider whether it be necessary in this case. 14. The power to make a restraining order in the circumstances of this case is conferred by section 5 of the Protection from Harassment Act 1997 . By section 5(2) : "The order may, for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from further conduct which — (a) amounts to harassment, or (b) will cause a fear of violence, prohibit the defendant from doing anything described in the order." 15. Here, the judge was in our view entitled to find that it was appropriate to prohibit contact with the appellant and either Miss McDade or her sister Kelly in accordance with that statutory provision. The judge was also correct to say, as he did in the course of argument, that continuing contact between the appellant and the children was to be encouraged. He said: "It's not a question of restricting contact with his children; it's in restricting the circumstances in which further offences can be committed involving adults being used as a conduit for messages." 16. With respect to the judge however, we think it unfortunate that the decision as to the appropriate terms and duration of the order was made with undue haste. The decision of this court in Khellaf (to which we have referred) includes at paragraph 14 four principles. First, the court should take into account the views of the person to be protected, it being the responsibility of the prosecution to ensure that the necessary enquiries are made. Secondly, no order should be made unless the judge concludes that it is necessary in order to protect the victim. Thirdly, the terms of the order should be proportionate to the harm which it is sought to prevent. Fourthly, particular care should be taken when children are involved to ensure that the order does not make it impossible for contact to take place between a parent and a child where such contact is otherwise inappropriate. 17. Regrettably, as it seems to us, three of those principles were not observed in the present case. First, it does not appear that any proper enquiry had been made by the prosecution in advance of the hearing to ascertain the views of Miss McDade. That being so, it follows that no sufficient enquiry was made as to whether she opposed contact between the appellant and the children and, if not, what in practice could be arranged to facilitate such contact. The judge was entitled to receive significantly more assistance from the prosecution than he did in this respect. 18. Secondly, with regard to the third principle stated in Khellaf , the relevant harm was further harassment of Miss McDade by direct or indirect contact with her. The appellant had shown himself unreliable when he felt angry or distressed by Miss McDade's attitude towards him, but we can see no basis for the court to make an order preventing harassment indefinitely. The duration of the order seems not to have been fully considered. We agree with Miss Brown's simple proposition that in the circumstances of this case it was realistic to think that the relationship between the adults would settle down within a comparatively short period. 19. Lastly, and with reference to the fourth principle in Khellaf , it seems to us that quite apart from the human rights of the appellant and the children, in a case where there were no current family court or civil court proceedings, there is here a matter of commonsense. Although submissions were made by Miss Brown about the obstacles to the appellant acting through his solicitor, submissions which were dismissed somewhat peremptorily by the judge, no one appreciated at the time that the order was also premised upon Miss McDade having a solicitor, when in fact she had no solicitor acting for her in relation to any matter. 20. We are satisfied that in those circumstances the appeal must succeed. It remains necessary that there be a restraining order, but it can in our judgment be limited in time and can contain a proviso which will in practice facilitate contact between the appellant and his children. 21. We therefore quash the restraining order imposed below. We substitute for it a restraining order which for the period of five years will prohibit the appellant from doing any of the following things. First, he must not contact directly or indirectly Gemma McDade, save that contact may be made indirectly through Joanne Garnett and/or Wajid Choudry for the purposes of arranging contact between the appellant and the children of the family. Secondly, the appellant must not contact directly or indirectly Kelly McDade. Thirdly, the appellant must not approach within 100 metres of 45 Vicarage Road, Shipley, BD18 1HA. To that extent, this appeal succeeds. 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 1456' date: '2019-08-06' judges: - LORD JUSTICE HOLROYDE - MR JUSTICE GOSS - MR JUSTICE KNOWLES ```

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: 201200402 C3 201204259 C3 Neutral Citation Number: [2013] EWCA Crim 1261 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Oxford Crown Court HHJ Eccles QC T20100367/S20120017 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/07/2013 Before: LORD JUSTICE TREACY MR JUSTICE MACDUFF and MR JUSTICE DINGEMANS - - - - - - - - - - - - - - - - - - - - - Between: Regina - and - Henry Paul McGrath - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr G Logan (instructed by Registrar of Appeals ) for the Appellant Mr T Boswell (instructed by Crown Prosecution Service ) for the Respondent Hearing dates : 25th June 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy: Introduction 1. There are two linked matters before the court. The first relates to the Appellant’s conviction for matters of dishonesty, the second relates to the judge’s finding of contempt of court committed during the course of the trial. 2. In December 2011 in the Crown Court at Oxford the Appellant was convicted of ten offences of dishonesty. On 19 th December 2011 he was sentenced to a total of four years imprisonment. There were five counts of handling, four counts of making off without payment and one offence of theft. The charges arose from the discovery the police made when they arrested the Appellant in September 2010 in the vicinity of a site near Oxford used by travellers. The details of those charges are irrelevant to the matters before this court. 3. The Appellant had been committed for trial on 22 nd November 2010. Amongst the charges for which he was committed was a charge of criminal damage. This was an allegation of damaging a cell wall by smearing his own excrement on it after his arrest. 4. The Appellant was originally arraigned on a fifteen count indictment which contained four counts alleging thefts or burglaries against the Appellant, being the precursors to some of the handling charges. The criminal damage charge appeared on this indictment. The Appellant pleaded not guilty. 5. The matter came on for trial on 7 th March 2011, by which time the Crown had prepared a twelve count indictment which omitted the four theft and burglary charges already mentioned. The allegation of criminal damage was included as Count 12 on this indictment. The Appellant was arraigned on the new indictment. He maintained his pleas of not guilty. An application to sever Count 12 was refused. This trial did not reach conclusion as the jury had to be discharged shortly after it began. 6. The next relevant date is 19 th September 2011. By now Mr McGrath was representing himself. At a hearing before a judge he raised the issue of the validity of the indictment. He was ordered to serve a skeleton argument, but in fact failed to do so. The case came on for trial on the 5 th December 2011. The trial judge severed Count 12 and the trial proceeded on an eleven count indictment. The Appellant represented himself at the trial, having dismissed fresh counsel at the outset. 7. At the close of the prosecution case the Appellant argued that the indictment was invalid because, amongst other reasons, Count 12, the criminal damage charge, had been improperly joined in the first place. The judge ruled against him. 8. On 16 th December 2011 the Appellant was convicted on ten counts on the indictment. The Appellant was due to be sentenced on 19 th December 2011. However, he refused to come out of the cells at court and the judge sentenced him in his absence to four years imprisonment. 9. During the course of the trial the Appellant had repeatedly behaved in a manner which the judge regarded as potentially amounting to contempt of court. He repeatedly sought to control the Appellant’s behaviour, but the Appellant continued regardless. The judge made clear that he intended to hold a contempt of court hearing once the trial was concluded. 10. On 19 th December the judge had drafted a document containing particulars of alleged contempt for service on the Appellant. The court clerk visited the cells so as to serve these particulars on the Appellant. The Appellant refused to accept service of the written document, although it is conceded that he knew what it was. The judge, having sentenced in relation to the indictment, decided to adjourn the contempt matter so as to give the Appellant time to reflect since the Appellant was refusing to leave his cell. The matter came back before the judge on 20 th January 2012. Again the Appellant refused to come up from the cells. The judge decided to proceed in his absence. He found the eight particulars relating to contempt set out in the document proved and passed a sentence of six months imprisonment to be served consecutively to the four years. 11. The judge also said on more than one occasion that the Appellant could use the slip rule provisions under Section 155 of the Powers of Criminal Courts Sentencing Act 2000 to bring the matter back before the court and have sentence reconsidered. 12. As to the trial itself, the issue before us relates to the validity of the indictment. In relation to the contempt matter, the issue relates to asserted non-compliance with Criminal Procedure Rule 62.7 and the asserted unfairness of proceeding in the absence of the Appellant. Validity of the Indictment 13. Dealing with the validity of the indictment, it was firstly argued in the grounds that on 7 th March 2011 the wrong procedure was adopted. It is said that the original fifteen count indictment was quashed before the second, twelve count indictment was preferred. If this was the case, then as R v Thompson & Clein [1975] 61 Cr App R 108 makes clear, the second indictment would not be valid, since once the original indictment upon which the committal was based was quashed, the court had no power to proceed on a further indictment then preferred. 14. As to the first matter, namely whether the original indictment was quashed before the second indictment was brought into being, we have seen transcripts of what took place before the Recorder on 7 th March, and considered the court log. On the basis of those materials we have come to the conclusion that the procedure adopted involved the bringing into being of the second indictment prior to the quashing of the original. Accordingly, the situation does not mirror that in R v Thompson and Clein , and this basis of appeal must fail. Mr Logan, on instructions, did not pursue this ground before us. 15. The second argument relates to the presence of the criminal damage charge on Count 12 of the new indictment. The argument runs as follows. The offence of criminal damage is listed in Section 40(3)(d) of the Criminal Justice Act 1988 as an offence mentioned in Schedule 2 to the Magistrates’ Court Act 1980. On the face of it a charge of criminal damage, the value of which is less than £5,000.00, may be included in an indictment by virtue of Section 40(1) if it: “(a) Is founded on the same facts or evidence as a count charging an indictable offence; or (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged.” 16. It is argued that criminal damage in the circumstances of this case could not be joined with the other offences on the indictment under Section 40(1) . It did not arise out of the same facts or evidence as the dishonesty offences, nor was it part of a series of offences of the same or similar character. The decision in R v Walton [2011] EWCA Crim 2832 was cited as an example of this principle. See also R v Lewis [1992] 95 Cr App R 131 . 17. Accordingly, Section 40(1) of the Criminal Justice Act 1988 could not justify the inclusion of the criminal damage charge on the indictment, nor could Rule 14.2(3) of the Criminal Procedure Rules 2012 (previously Rule 9 of the Indictment Rules 1971 ), which is couched in similar terms to Section 40(1) . 18. If that is correct, the question arises as to how the joinder of the criminal damage charge affects the validity of the remainder of the indictment. The Appellant contends that the result is an invalid indictment. He relies on R v Newland [1988] 87 Cr App R 118 . In that case Watkins LJ, giving the court’s judgment, held that contravention of Rule 9 rendered the indictment invalid. Since a valid indictment is a condition precedent to a valid trial on indictment, the whole trial with its ensuing convictions was a nullity. This was unaffected by the fact that by the time the jury came to try the fresh indictment, Count 12 had been severed. The indictment had been invalid from the start and severance could not cure that. 19. It will be seen that the point is a highly technical one. It is devoid of substantive merit since joinder of the criminal damage charge in no way impinged upon the trial of the allegations of dishonesty. That said, the point taken is a legitimate one, since it raises the question of whether or not the trial was properly constituted. 20. Mr Logan, for the Appellant, argues that since the question of joinder goes to the validity of the indictment, it should not be regarded as a procedural defect which may be considered solely by reference to prejudice or substantive merit. We are prepared to accept that latter submission. 21. Mr Boswell, for the Crown, began by submitting that contrary to the submissions of Mr Logan, the criminal damage charge had lawfully been committed to the Crown Court. Even assuming in the Appellant’s favour that the value of the damage done appeared to the Justices to be less than £5,000.00, Section 22(2) of the Magistrates’ Court Act 1980 provides: “If…it appears to the court clear that, for the offence charged the value involved does not exceed the relevant sum, [£5,000.00], the court shall proceed as if the offence were triable only summarily…” 22. In the light of R v Fennell [2000] 2 Cr App R 318 , notwithstanding the terms of Section 22(2), criminal damage remains an either way offence. Thus, the committal was lawful. However, it is still necessary to consider whether the criminal damage charge was properly joined to the indictment containing the dishonesty charges whether pursuant to Rule 14.2(3) or Section 40 . 23. The trial judge had ruled that the criminal damage could be regarded as founded on the same facts as the dishonesty matters on the basis that the Appellant had been arrested for offences appearing on the indictment and was alleged to have committed the offence of criminal damage in his cell following that arrest. 24. Mr Boswell now concedes, and we accept that he was right to do so, that that analysis by the judge cannot be sustained. We are clear therefore that for this reason the count of criminal damage was not properly joined to the indictment, as neither Rule 14.2(3) nor Section 40(1) were satisfied. The key question therefore is what is the effect of this? Does it invalidate the whole indictment? 25. As noted above, Mr Logan relied on a chain of authority starting with Newland , then going to R v Lewis, and ending in R v Clarke & McDaid [2008] 2 Cr App R 2 . The Crown argued that this chain of cases does not represent the law and that Newland is not to be followed. 26. Newland was considered by a court also presided over by Watkins LJ in R v Callaghan [1992] 94 Cr App R 226 . There the court considered Newland , a case where the indictment fell foul of Rule 9 (the precursor to CPR Rule 14.2 (3)), and held in a case where the provisions of Section 40 of the Criminal Justice Act 1988 were not satisfied, that the wrongful joinder of a summary offence led to the quashing of the conviction on that charge, but not of the convictions on the remaining counts on the indictment. The court cited Lord Lane CJ in R v Bell [1984] 78 Cr App R 305 where he stated at page 311: “In our view it cannot be the law that a perfectly proper indictment containing one count alleging unlawful possession of cannabis can be made a complete nullity by the addition of counts contrary to Rule 9 .” In Callaghan the question of a breach of Rule 9 did not arise. 27. R v Lewis was heard about six weeks after Callaghan . Newland was cited, but Callaghan was not. A count alleging common assault at a police station after arrest for threats to kill and criminal damage was held to have been wrongly joined to the indictment under Section 40(1) . The court held that the indictment was defective and quashed all convictions. The misjoinder would have offended what was then Rule 9 as well as Section 40 . 28. In R v Simon [judgment 27 th January 1992] [1992] Crim. LR 444 , a constitution presided over by Lord Lane CJ commented on the difference between the cases of Callaghan and Lewis . It observed that Callaghan was not drawn to the attention of the court in Lewis and that had that happened, the court was satisfied that the constitution in Lewis would have found itself bound to follow the decision of the court in Callaghan . The court was thus clearly indicating that Callaghan was to be preferred, with Lewis , which in turn was based on Newland , being regarded as per incuriam. However, on the facts, the court held that there was no misjoinder under Section 40(1) , so that these observations although strongly persuasive are, strictly speaking, obiter. 29. In R v Smith [1997] 1 Cr App R 390 Henry LJ applied Callaghan and disapproved Newland and Lewis . Callaghan was stated to be binding authority, and the court having held that two counts on the indictment having been improperly joined under Section 40 , only those counts should be quashed, with convictions on the remaining counts being maintained. The misjoinder did not render proceedings on those counts a nullity due to improper joinder of other counts. Newland was criticised as asserting a proposition without advancing reasons or principle justifying it. 30. In R v Lockley & Sainsbury [judgment 17 th January 1997] [1997] Crim. LR 455 the court considered the earlier authorities, referring to the “previously somewhat confused and inconsistent state of the law” as having been recently clarified in R v Smith . The court referred both to Section 40 and Rule 9. Whilst Lockley was a case of invalid joinder by reason of a breach of Rule 9 in contrast to Smith which was concerned with a failure to satisfy the terms of Section 40 , the court observed that in all material respects, the terms of the two provisions were the same. The court stated that the observations of Henry LJ as to the status of Callaghan was intended to and did apply equally to cases where a misjoinder results either from a failure to meet the requirements of the rules (now Rule 14.2(3) ) or Section 40 . The court also referred back to Bell , cited above. The court therefore held that misjoinder of one count did not nullify proceedings on another. 31. In R v Ashton & Others [2006] 2 Cr App R 15 the court held that proceedings would not be rendered automatically invalid because an indictment had not been signed, the court considering in that context that the decisions in R v Soneji [2006] 2 Cr App R 20 and R v Sekhon & Others [2003] 1 Cr App R 34 validated an approach which did not focus on whether procedural requirements were mandatory, but rather on (a) whether Parliament intended a procedural failure to render proceedings invalid and (b) an assessment of whether the procedural failure caused prejudice to any party. 32. In R v Clarke & McDaid the House of Lords held that Ashton was wrongly decided, and that the decisions in Sekhon and Soneji did not warrant “a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect”. The court referred to Newland in passing, but was not concerned with the issues which have arisen in this case, and specifically did not consider the chain of decisions subsequent to Newland beginning with Callaghan . 33. In Clarke & McDaid the decision was whether the initial absence of a signed indictment invalidated the proceedings at trial. Their Lordships held that it did, by reason of the express provision of Sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 , (“ the 1933 Act ”), so that any subsequent convictions were rendered a nullity. The decision does not address the matters before this court, and we do not consider that it can avail the Appellant. It is clear to us that the chain of authority starting with Callaghan and culminating in Lockley & Sainsbury is binding authority upon us with the effect that failure to satisfy the provisions of Section 40 or Rule 14 will nullify any conviction recorded in relation to an improperly joined count, but not one recorded on other counts properly on the indictment. The indictment as a whole is not invalidated, only the counts improperly joined. 34. We do not consider that the distinction sought to be drawn between misjoinder under Section 40(1) and misjoinder contrary to Rule 14.2(3) to which Mr Logan drew our attention in highlighting observations contained at paragraph 1-244 of the 2013 edition of Archbold can be sustained. It is clear to us from the line of authorities referred to above, that the same consequence will apply whether there is non-compliance with the statute or the rule. 35. Mr Boswell also drew support for his contention that only the misjoined count is affected as opposed to the whole indictment, by reference to Section 2(3) of the 1933 Act . That provides: “If a Bill of Indictment has been preferred otherwise than in accordance with the provisions of the last foregoing subsection…the indictment shall be liable to be quashed: Provided that – (a) if the Bill contains several counts, and the said provisions have been complied with as respects one or more of them, those counts only that were wrongly included shall be quashed under this subsection;” 36. This provision was not considered in Newland or Callaghan , or indeed the other cases cited above. In R v T & K [2001] 1 Cr App R 446 there had been a transfer for trial of either way offences and a summary only count of common assault had been wrongly included on the indictment, since at that time Section 40 only applied where there had been a committal. T was tried, both on the either way offences, and on the invalid common assault count. The court referred to Section 2(3)(a) and (b), and at paragraph 21 said: “For these reasons, we are satisfied that the trial of the common assault count was invalid and that accordingly T’s conviction on a count that could not be tried in the same indictment cannot stand and must be quashed. It is accepted on both sides that this does not invalidate the rest of the trial and we must therefore consider the separate arguments advanced on behalf of each appellant in respect of the convictions for indecent assault.” 37. It seems to us that Section 2(3)(a) does indeed provide support for the conclusion we have reached and that R v T & K is an illustration of its application. 38. The Crown also placed reliance on Section 2 (6ZA) of the 1933 Act . This is a provision inserted into the 1933 Act by Section 116(1)(c) of the Coroners and Justice Act 2009 after the decision in Clarke & McDaid . The new subsection provides that objections to an indictment based on an alleged failure to observe procedural rules may not be taken after the start of the trial, that is, when the jury has been sworn. Accordingly, it was submitted that the argument as to the validity of the indictment raised by the Appellant at the close of the prosecution case was too late, since this provision operates as a form of guillotine. 39. We are not persuaded that this provision should apply to this case. It is apparent that at a hearing on 19 th September 2011, the Appellant, representing himself, raised an issue or issues concerning the validity of the indictment. However, there is no transcript available of those proceedings, and without clear evidence to the contrary, which the Crown concedes it cannot produce, we do not consider it would be right to use this provision additionally to defeat the Appellant’s argument. 40. In the circumstances the appeal against conviction fails and is dismissed. Contempt of Court 41. In relation to the conviction for contempt of court, it is submitted that the provisions of Part 62 of the Criminal Procedure Rules, and in particular Part 62.7(3) were not complied with; and that as a consequence, the judge was wrong to proceed with the hearing in the absence of the Appellant. 42. It is not contended that the conduct complained of and set out in the judge’s document of 19 th December 2011 was wrongly held to amount to a contempt of court. Nor is there any complaint about the decision of the judge to postpone the enquiry into the alleged contempt. The complaint relates to an asserted failure of procedure. Rule 62.7 provides as follows: “(1) This rule applies where the Court of Appeal or the Crown Court postpones the enquiry. (2) The court must arrange for the preparation of a written statement containing such particulars of the conduct in question as to make clear what the Respondent appears to have done. (3) The court officer must serve on the Respondent – (a) that written statement, (b) notice of where and when the postponed enquiry will take place; and (c) a notice that – (i) reminds the Respondent that the court can impose imprisonment, or a fine, or both, for contempt of court, and (ii) warns the Respondent that the court may pursue the postponed enquiry in the Respondent’s absence if the Respondent does not attend.” 43. Mr Logan submits that whilst a statement compliant with Rule 62.7(2) was drawn up, it was not served on the Appellant. Moreover, that document did not contain anything, and no notice was served, relating to the place and date of the contempt hearing, or warning of the potential penalties, or of the fact that the court might proceed in the Appellant’s absence if he did not attend. He points out that the language of the rule is mandatory as to service of the requisite notices, and that the rule exists so that the Appellant is in a position to make an informed decision. Mr Logan points out that whilst the court clerk made an effort to serve the document containing details of the alleged contempt on 19 th December, no further efforts appear to have been made to serve those particulars or the other information required by Rule 62.7. 44. The transcript of the hearing of 20 th January reveals that prosecuting counsel informed the judge that the Appellant was refusing to come up from the cells. He suggested that a written statement complying with the relevant part of the rules had been provided, and that the judge should consider whether the Appellant had voluntarily absented himself from the proceedings. The judge responded: “What I will do [is] proceed and just give a judgment in the matter.” 45. The judge then gave a judgment finding Mr McGrath in contempt. In the course of his ruling, he recorded that on 19 th December the Appellant had refused to come from the cells for sentence and refused to accept service of the document giving particulars of contempt when the court clerk went down to the cells in an attempt to serve him. He recorded Mr McGrath’s refusal to come into court on that day, 20 th January 2012, and continued: “The question arises then as to whether a further attempt should be made to serve the written charge of contempt and the particulars upon him. I take the view that in the light of his conduct on 19 th December and in the light of his refusal to come into court today, it would be entirely otiose to try and serve this document upon him in the cells. In my judgment he has by his conduct on 19 th December and today clearly waived his right to have service of the notice of the allegations upon him and waived his right to be present at this hearing where the allegations of contempt will be considered by me.” 46. The judge then said that he had decided to proceed rather than adjourn further. 47. It is clear to us from what transpired at the hearing before us, including observations made to the court by the Appellant himself, that he deliberately evaded service of the particulars of misconduct on 19 th December and knew what that document contained. In those circumstances no complaint can be made about non-service of the written statement containing the particulars of his alleged misconduct. 48. However, that document did not contain the information specified at Rule 62.7(3)(b) and (c). The Crown acknowledges that those requirements were not satisfied, but asserts that the Appellant knew of the matters which should have been contained in a notice or notices. 49. On examination of the position, however, it is far from clear that this was the case. We are prepared to accept that the Appellant was aware of the potential sanctions for contempt of court, and thus not materially affected by a failure to comply with Rule 62.7(3)(c)(i). The Appellant is well experienced in the ways of the criminal courts, and there are observations which he made during the trial which the judge recorded in his judgment which show that the Appellant was alive to the possible consequences of contempt at a time when the judge was trying to rein in his behaviour in the face of the court. 50. However, there is no evidence or material before us to show any of the following: i) Notification that the contempt hearing was to take place on 19 th December. ii) Any information conveyed by the court clerk at the time of the abortive attempt to serve the notice of particulars on 19 th December. iii) Any notification to the Appellant that the judge had adjourned the contempt proceedings from 19 th December. iv) Any notification that the new date for the contempt hearing had been fixed for 20 th January 2012. v) Any information conveyed to the Appellant on 20 th January 2012 that the contempt matter was to be heard on that day. vi) Any warning at any stage of the proceedings in relation to contempt that if the Appellant did not attend, the court might proceed in his absence. 51. Since contempt of court, if proven, carries with it sanctions up to and including imprisonment, such formalities are not to be taken lightly. Before the court proceeds in the absence of a Defendant, the process should be no less rigorous than would occur in the case of a Defendant who did not attend his trial. The decision of the House of Lords in R v Jones (Anthony) [2002] 2 Cr App R 9 demonstrates the need for a judge to exercise great caution in deciding to proceed with or continue a trial in a Defendant’s absence. This must be particularly so where a Defendant is unrepresented, even if he is experienced in criminal proceedings. 52. This court reiterated the position in R v O’Hare [2006] EWCA Crim 471 . Thomas LJ cited with approval the observations of Rose LJ in this court in Jones that whilst a Defendant has, in general, a right to be present at his trial and a right to be legally represented, those rights can be waived by a Defendant if, knowing or having the means of knowledge as to where and when his trial is to take place, he deliberately and voluntarily absents himself. Thomas LJ said that an analysis of the speeches in the House of Lords in Jones pointed to the conclusion that, if waiver is to be established, then knowledge of, or indifference to the consequences of being tried in absence would have to be proved. 53. Given the absence of material to show us that this Appellant was made aware of the time and place of his contempt hearing or that such proceedings could continue in his absence if he failed to attend, we do not consider that he can be said to have waived his rights under Rule 62.7 or at common law. We acknowledge that the judge was faced with a difficult situation on 20 th January, but we do not consider that his conclusion that this Appellant had clearly waived his right to be present at the hearing when the allegations of contempt were due to considered can be sustained in the absence of evidence to show that the Appellant had been informed at any point of the matters relating to time and place of the hearing and the potential consequences of non-attendance. If steps had been taken on the morning of 20 th January 2012 to ensure that the Appellant was apprised of the court’s intention to deal with the contempt proceedings that day and of the consequences of non-attendance in court, then the necessary conditions for waiver might well have been established, and the failure to comply with Rule 62.7 might have been of no consequence. 54. We have considered Rule 62.2(2) which provides: “The court must not proceed in the Respondent’s absence unless – (a) the Respondent’s behaviour makes it impracticable to proceed otherwise; or (b) the Respondent has had at least 14 days notice of the hearing, or was present when it was arranged.” 55. There is no evidence which would enable us to find that subparagraph (b) had been complied with. As to subparagraph (a), considerations of impracticability have to be set against the factual context which shows that the Appellant’s refusal to come into court from the cells took place in circumstances where he had not had due notice of important matters, and where the step of giving him relevant information and warning on the morning of the hearing itself was perfectly practicable. We do not consider that this provision can avail the Crown, when it seeks to persuade us that non-compliance with Rule 62.7 has not led to unfairness in this case. 56. This Appellant’s case is an undeserving one and arouses no sympathy. His refusal to come into court on 19 th December and 20 th January represented a continuation of his disruptive attitude to the proceedings as a whole. However, an important safeguard as to the fairness of the contempt proceedings was not observed. It would be wrong for this court to brush it aside on the basis that this Appellant is an undeserving case. Our conclusion is that the conviction of contempt of court cannot properly be sustained for the reasons given above. Accordingly, we quash that conviction.

```yaml citation: '[2013] EWCA Crim 1261' date: '2013-07-12' judges: - LORD JUSTICE TREACY - MR JUSTICE MACDUFF - MR JUSTICE DINGEMANS ```

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 NOS 202202575/B5 & 202202577/B5 NCN: [2023] EWCA Crim 761 Royal Courts of Justice Strand London WC2A 2LL Thursday 15 June 2023 Before: LORD JUSTICE EDIS MR JUSTICE JACOBS THE RECORDER OF LONDON HIS HONOUR JUDGE LUCRAFT KC (Sitting as a Judge of the CACD) REX V RACHEL BARNES __________ 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 C KELLEHER appeared on behalf of the Applicant MR C WING appeared on behalf of the Crown _________ J U D G M E N T MR JUSTICE JACOBS: 1. On 10 December 2021 in the Crown Court at Swindon, His Honour Judge Taylor KC presiding, the applicant, then aged 27, pleaded guilty to a number of stalking offences. The most serious of the charges to which she pleaded guilty was count 2, stalking involving serious alarm or distress, contrary to section 4 A of the Protection from Harassment Act 1997 . She had originally been charged with similar offences in counts 1 and 3 of the indictment but the applicant pleaded guilty to the lesser offence of stalking, contrary to section 2 A of that Act in respect of both counts. Those pleas were acceptable to the prosecution. 2. On 31 January 2022 the applicant was sentenced by His Honour Judge Crabtree OBE to 18 months' imprisonment in respect of count 2 and concurrent sentences of two months and one month in respect of counts 1 and 3 respectively, so that the total sentence was 18 months. The judge declined to suspend the sentence. That sentence has now largely been served with the applicant having been released from custody in late 2022. 3. The applicant now applies for an extension of time (227 days on conviction and 175 days on sentence) for permission to appeal against conviction and sentence. Those applications have been referred to the full court by the single judge. The applications have been listed today with the substantive appeals to follow immediately if leave is granted. The prosecution has therefore been represented and we are grateful for the submissions made by counsel for the applicant (Miss Kelleher, who did not appear in the proceedings below) and for the prosecution (Mr Wing, who did appear below at the sentencing hearing). 4. The applicant also applies to adduce fresh evidence comprising a report from a clinical psychologist and a witness statement which she made in August 2022. 5. No application for leave to appeal was made immediately after conviction or sentence since the applicant had been advised by her trial solicitors that there were no grounds of appeal. The facts of the offences 6. The three counts in the indictment related to three different individuals, each of whom was a serving police officer in Wiltshire based at the Gablecross Police Station in Swindon. Count 1 concerned William Saunders with whom the applicant had a brief relationship in late 2020. Count 2 concerned Catherine Baird with whom Mr Saunders began a relationship subsequent to the end of his brief relationship with the applicant. Count 3 concerned Sophie Rogers with whom Catherine Baird shared a house and who by coincidence was known to the applicant because they had been at university together. 7. The details of the prosecution case were contained in a schedule to the indictment, particularising the applicant's conduct over the period 1 January 2021 to 2 April 2021. That conduct included attending at the home address of Miss Baird and Miss Rogers on two occasions pretending to be a lost delivery driver, making false reports of breaches by Mr Saunders and Miss Baird of lockdown rules and using an anonymous and false name to do so, contacting Miss Rogers and falsely telling her that the applicant was about to start work at her police station, creating a false Instagram account which was used to contact both Mr Saunders and Miss Rogers, going to the area where they lived or worked on numerous occasions, including in breach of bail conditions. Indeed, on one of those occasions, when the applicant was at Gablecross Police Station in contravention of her bail conditions, she was arrested in the visitor car park and was above the legal limit for driving. This was her second drink driving offence committed during the period of the course of conduct relied upon. Arrests and court hearings 8. These events gave rise to a sequence of arrests and court appearances in the period February to November 2021, prior to the applicant pleading guilty in December 2021. The hearings included a Magistrates' Court hearing in August 2021 when an Interim Stalking Prevention Order was made. The applicant had indicated a not guilty plea to the present charges and the matter was sent to the Crown Court. 9. A plea and trial preparation hearing ("PTPH") was held on 10 December 2021. The applicant was represented at the hearing by Mr Gareth James who worked for her solicitors, Hine's Solicitors ("Hine"). Discussions between Mr James and the applicant and prosecution counsel had taken place in the morning of that day and the court adjourned to allow the discussions to continue. 10. In the afternoon the applicant pleaded to lesser offences under counts 1 and 3, as well as the section 4 A offence under count 2. The case was then adjourned for a pre-sentence report. The judge made it clear that the offending was serious and that all sentencing options were open. The applicant clearly understood therefore that there was a risk of a sentence of immediate imprisonment. This was a point made in the Pre-Sentence Report ("PSR") prepared a few weeks later. 11. In that detailed PSR the author recommended a community order with various requirements, or alternatively a suspended sentence with similar requirements. Important points emerging from the PSR were that the applicant was genuinely remorseful for what she had done and recognised that her behaviour was unacceptable, and that the majority of actions were carried out when under the influence of alcohol. There is no suggestion in the report that she denied any of the wrongdoing alleged or had in any way been forced or misled into pleading guilty. 12. The sentencing hearing took place on 28 January 2022 before His Honour Judge Crabtree. On the evening before the hearing the judge had been provided with a written sentencing note. He also had victim personal statements from the three complainants, as well as the PSR. He also had character references from the applicant's father and godfather, the latter being a practicing psychiatrist. Those references explained the applicant's background and that her behaviour had been out of character, and suggested reasons why it had occurred. The hearing lasted approximately an hour and the judge then adjourned until Monday 31 January 2022 in order to reflect over the weekend on his decision. 13. It has not been possible to obtain a transcript of the judge's sentencing remarks but the applicant's former solicitors have prepared a note and there is no reason to think that it is anything other than broadly accurate. 14. The judge considered that the section 4 A offence in count 2 fell within Category 1 Culpability B in the relevant guidelines. In relation to culpability he said that the conduct was over a long period and involved significant planning. It was also consistent with an intention to cause very real distress and it continued in breach of bail conditions. In relation to harm the judge said that he was mindful of the need for caution when considering the victim personal statements, but he was left in no doubt that by April 2021 the conduct had a significant impact on the complainant under count 2, leading to serious distress. He therefore concluded that it was a Category 1B case which under the guideline has a starting point of two years six months and a range of one to four years. The judge said that the offending was aggravated by its continuation, the presence of a child (Miss Baird had a two-year-old), the fact that the victims were public service employees and that it was committed in drink. It was mitigated by good character, remorse and the steps taken by the applicant to address concerns. There were some mental health issues and the judge referred to the applicant's diagnosis of PTSD. He referred to her hearing difficulties, although said that she coped, as well as to personal mitigation, the pandemic and the pre-sentence report. 15. The judge's sentence on count 2 was two years prior to a 25 per cent credit for plea. This resulted in the 18 month sentence on count 2. The other two offences under section 2 A fell into Category A1 of the relevant guidelines and the judge imposed the concurrent sentences to which we have referred. He said that whilst there was a realistic prospect of rehabilitation, and so the sentences could be suspended, the three victims (particularly Miss Baird) had suffered enduring impact. He concluded that only immediate custody could be justified. The judge also imposed a Restraining Order. The grounds of appeal 16. In her skeleton argument in support of the applications, the applicant's grounds of appeal can be summarised as follows. The ground of appeal against conviction is that it is unsafe because the applicant entered an equivocal plea. It is alleged that the applicant was not properly advised in various respects: her solicitor incorrectly advised her to plead guilty, failed to advise her of a defence, advised her that she would not go to prison and failed to challenge any of the prosecution evidence despite inherent weaknesses. It was also alleged that the conduct of the police during the investigation fell below the standard expected of an independent investigation authority. 17. The grounds of appeal against sentence are that it was manifestly excessive in all the circumstances, that it was wrongly categorised under the guidelines and in any event failed properly to take into account the applicant's mitigation. The judge also should have suspended any sentence and this was the principal point which Miss Kelleher developed in her oral submissions this morning. It was also alleged that the Restraining Order was unnecessary and disproportionately prohibited to private life and rehabilitation. 18. The substance of these grounds had originally been set out in grounds of appeal and in an advice of appeal dated 30 June 2022. Since those grounds contained criticism of the applicant's legal advisers, Hine, they were asked to comment and did so in a full response, disputing the key aspects of the applicant's case that she had not been properly advised. Hine said that the guilty pleas were based on the applicant's instructions that she accepted the majority of the conduct alleged. Specifically, she accepted attending the address of Catherine Baird twice disguised as a delivery driver, monitoring the location of Mr Saunders and on one occasion reporting Mr Saunders and Miss Baird to the police for breaching Covid-19 regulations, creating an Instagram name and contacting the parties under a false identity. 19. We have considered all of the grounds and arguments advanced by Miss Kelleher on behalf of the applicant, together with the Respondent's Notice and Mr Wing's submissions and we can move straight to our conclusions. The proposed conviction appeal 20. There are very limited circumstances in which the Court of Appeal will quash a conviction where a defendant has pleaded guilty. This reflects the fact that a guilty plea is a public admission of the facts which constitute the offence and that ordinarily a public admission of the facts establishes the safety of the conviction. Where incorrect legal advice has been given, this can result in a conviction being quashed or treated as a nullity. This means that the plea of guilty was not a true acknowledgment of guilt. Even if not a nullity, incorrect legal advice can result in the conviction being quashed where its effect was to deprive the defendant of a defence which would probably have succeeded. It is the latter point which Miss Kelleher emphasised in her oral submissions. 21. The relevant legal principles are discussed in detail in the recent decision of R v Tredget [2022] 4 WLR 62 , in particular in the context of incorrect legal advice paragraphs 157 to 159. 22. We do not consider it arguable that the applicant's pleas of guilty in the present case were not a true acknowledgment of guilt and therefore a nullity. Hine has said in his letter dated 27 July 2022 that the applicant accepted the majority of the conduct alleged. This is in our view corroborated both by the guilty plea itself and by evidence independent of Hine. It is clear from the PSR as a whole that in her interview with the author of that report the applicant expressed remorse for what she had done. There is nothing in that report which suggests that she did not understand the case to which she had pleaded guilty or the facts which she was admitting or that the case had in some way been exaggerated or was untrue in any material respects. The same picture is apparent from the report of the clinical psychologist which the applicant seeks to adduce as fresh evidence. In that report there are further acknowledgments of the facts which were relied upon by the prosecution. It is also apparent from both reports that there was alcohol misuse by the applicant and that this contributed to the conduct which formed the basis of the charges against her. The character references relied upon by the applicant, which we have read, similarly acknowledge, at least implicitly, the applicant's wrongdoing and seek to provide context in order to explain it. 23. One of the points emphasised in the Tredget decision is that a defendant is the person who knows what actually happened and that a plea of guilty must be seen in that light. This applies with particular force here, where the applicant's expressions of remorse are only explicable on the basis that she accepted that she was responsible for the conduct on which the prosecution relied and that this conduct had indeed taken place. This also fully explains why there guilty pleas on a "full facts" basis. The applicant knew what she had done and knew that her drinking had contributed to it. 24. The applicant's present argument seeks to rely upon an allegation, which is disputed by Hine, that the prosecution materials were not made available to her. Even if the applicant’s case in this respect were to be accepted, it does not assist her. It serves to reinforce the conclusion that the applicant knew what she had done and did not need the prosecution papers in order to know the conduct on her part which was being relied upon. 25. There is also, in our view, some considerable difficulty in identifying any defence which actually existed and which the solicitors negligently failed to advise her to pursue. A number of points have been made in the applicant's papers and argument. In the applicant's recent skeleton argument the applicant identifies a defence that the Covid complaints, in other words the allegation of breach of lockdown rules, were well-founded. However, even if that point had any force – and it factually it is a matter which would no doubt have been the subject of a dispute at any trial – the Covid complaints were only one part of the course of conduct which the prosecution alleged. There were many other aspects to that course of conduct. Furthermore, in discussion with the author of the PSR the applicant did not suggest that she had been motivated to report the alleged breaches of lockdown rules because of a genuine concern that they had happened. The author states that the applicant had simply failed to consider at the time that her false accusations regarding breaches of the Covid rules could have adversely affected the careers of Mr Saunders and Miss Baird. 26. In counsel's original advice on appeal it was suggested that the conduct relied upon did not amount to a course of conduct. That argument does not appear to be pursued but we would regard it as a hopeless point. The conduct relied upon in the schedule to the indictment was very plainly a course of conduct for the purposes of the stalking charges. 27. It was submitted in counsel's original advice that it was not apparent that the applicant ought to have known that her course of conduct would cause others to fear violence or cause alarm and distress. This point, with the focus being on alarm and distress rather than violence, is maintained in Miss Kelleher's argument today. However, the offence under section 4 A does not require actual knowledge. It is sufficient if a person knows or ought to know, based on what a reasonable person would think, that the conduct would cause serious alarm or distress. 28. In the present case, once the relevant course of conduct has been proved, it seems to us to be very difficult indeed to see how an argument could succeed which asserted that the applicant neither knew nor ought to have known of the consequences of the conduct relied upon. The sentencing judge referred to the long period over which the conduct persisted and the significant planning that went into it. He said, rightly in our view, that this was consistent with an intention to cause very real distress. The applicant could have argued the contrary before a jury but we would regard the prospect of that defence succeeding as remote and certainly highly unlikely. 29. In our view the reality is that the prosecution had a strong factual case and the applicant had very real problems in meeting it. No defence case statement was served, no doubt because the need to do so was obviated by the guilty pleas. The expressions of remorse and other statements made to the authors of the reports indicate that the applicant could not, if she had given honest evidence, deny what she was alleged to have done. The guilty pleas in the present case seem to us to reflect a recognition of the strength of the charges that the applicant was facing and the fact that she knew what she had done. In our view the present case gets nowhere near the threshold of showing facts so strong that the plea of guilty was not a true acknowledgment of guilt. 30. For similar reasons this is not a case where the advice deprived the applicant of a defence which would probably have succeeded. Much of the conduct relied on was not challenged. It involved deception of various kinds, for example pretending on two occasions to be a lost delivery driver, false social media accounts and lying to Miss Rogers about the applicant having obtained a job at her police station. There were also admitted breaches of a court order, as well as drink driving which is serious in itself. The latter also provided evidence of the applicant's abuse of alcohol. Once those matters came out at any trial it would have been difficult, to say the least, for the applicant to be believed on other aspects of the factual case which she now seeks to advance: for example, the argument that her presence at the police station in apparent breach of the bail conditions was explicable by certain traffic or road works problems. 31. We do not need to express any view on the facts as to the strength of any advice to plead guilty that may or may not have been given by Mr James of Hine. However, it does seem to us that if robust advice was given to plead guilty then this was sensible. Mr James negotiated with the prosecution so that the two more serious charges were not pursued by reason of pleas to a lesser offence. Whilst this left a plea of guilty on the more serious offence in count 2, the overall result was that there would be a possibility of the applicant receiving a sentence less than two years and with it the possibility of suspension. The alternative course of contesting the trial on all counts would, in the event of a conviction on one or more charges, inevitably have destroyed that possibility. 32. Overall, we consider that the applicant's argument pays insufficient regard to the significance of the admissions which are inherent in a guilty plea, as explained in Tredget . Once the relevant criteria for quashing a conviction resulting in the guilty plea havw been identified, it is clear those criteria are not met. We do not consider that any of the other matters relied upon by the applicant, such as criticism of the police investigation, addresses this fundamental point. 33. Accordingly, since there is no merit in the proposed appeal against conviction we decline to extend time and decline to grant permission to appeal. 34. In reaching those conclusions we have read and taken into account the materials in the fresh evidence on which the applicant seeks to rely, but since we decline to extend time or grant permission the application to adduce fresh evidence does not need to be addressed. The proposed appeal against the sentence of imprisonment 35. We do not consider it arguable that the judge's sentence was manifestly excessive and we therefore refuse to extend time or to grant permission in respect of that aspect of the case. Although a full transcript of the judge's sentencing remarks is not available, it is obvious from the transcript of the argument on 28 January and the notes of the judgment and his adjournment over the weekend prior to passing sentence, that he gave very careful consideration to the appropriate sentence in this case. We find no fault in the judge's categorisation of this offence as Category 1B. There were, in our view, three Category B culpability factors: persistent action over a long period, a high degree of planning (for example in the use of a fake social media account) and conduct intended to maximise fear and distress. We also think that the victim personal statement of Miss Baird demonstrates that each of the category 1 harm factors were present. Miss Baird read her statement at the sentencing hearing and some questions were asked of her by Mr James. The judge approached the victim personal statements cautiously but they provided a clear and in our view satisfactory foundation for the conclusions that there was Category 1 harm here. Moreover, this was not a case where the victim personal statements were only provided at the conclusion of the case. The offences themselves required the prosecution to prove that the complainants were caused serious alarm or distress, which had a substantial effect on their day-to-day activities. This meant that each complainant had made a number of statements in real time in the January to April 2021 period or shortly thereafter. 36. In those circumstances, the starting point was two years six months with a range of one to four years. Despite the aggravating factors to which the judge rightly referred, he gave a considerable reduction for mitigating factors so that his sentence prior to credit for plea was two years, in other words six months below the starting point under the guideline. 37. We do not consider that his decision can arguably be criticised. On the contrary, it was well within the scope of his sentencing discretion and was in accordance with the guideline. It is also important to note that the judge was also sentencing for two other offences involving other victims and the two year sentence (or 18 months after credit for plea) should reflect the overall criminality, not simply the criminality on count 2. 38. The judge properly considered suspension. He was fully entitled in our view to take the view that in the circumstances of this case only immediate custody could be justified. He could also have referred to the fact that court orders had in the past been disobeyed, as evidenced for example by the applicant's conviction in the Magistrates' Court for breaches of the order which had been made very shortly before it was breached. But in any event the judge's decision not to suspend was arrived at properly, was well within the scope of his sentencing discretion and cannot be criticised as manifestly excessive. 39. Finally, we come to the terms of the Restraining Order and the arguments which have been made in that regard. We consider, as Mr Wing has to some extent acknowledged in the course of his submissions, that there are some matters here which can reasonably be criticised and which reasonably ought to be changed in order to meet the requirements of the decision in Debnath [2005] EWCA Crim 3472 . 40. Accordingly, we do propose to grant leave to appeal against this aspect of the judge's sentence and we will make the following changes to the Restraining Order. There should be a finite period for the order, which currently lasts until further order. We consider that a period of five years should be substituted. 41. In paragraph 2 the word "reasonably" should be deleted. 42. Paragraph 3 should be amended to read as follows, in order to provide clarity: i. "Engaging in any form of surveillance by any means, including following William Saunders, Catherine Baird or Sophie Rogers on social media." 43. Paragraph 5 (which should be re-numbered 4) should read as follows: i. "Making any complaint or report that she knows or believes to be false against ... " 44. The order can then continue as currently drafted. 45. Save to the extent that we have indicated in relation to the Restraining Order (where we grant leave and make the above amendments), all applications made by the applicant are refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2023] EWCA Crim 761' date: '2023-06-15' judges: - LORD JUSTICE EDIS - MR JUSTICE JACOBS ```

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: [2018] EWCA Crim 376 No: 201702404/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 22 February 2018 B e f o r e : LORD JUSTICE HAMBLEN MR JUSTICE SWEENEY RECORDER OF GREENWICH (HIS HONOUR JUDGE KINCH QC) (Sitting as a Judge of the CACD) R E G I N A v KHAVER ATIQUE ZARIF Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Mr A Turton appeared on behalf of the Applicant J U D G M E N T (Approved) If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. 1. MR JUSTICE SWEENEY: This is a renewed application for leave to appeal against sentence and for a representation order. 2. On 22 February 2017 the applicant pleaded guilty on re-arraignment to conspiracy to supply heroin for which, on 16 May 2017, he was sentenced to 61 months' imprisonment by Her Honour Judge Shant QC (the Honorary Recorder of Derby). 3. The facts are set out in full in the Criminal Appeal Office summary. 4. It suffices to record that the applicant is now aged 25 and that his prosecution for the conspiracy arose out of the investigation, over a very substantial period, into his family's drug dealing activities. 5. In July 2014, the applicant was arrested for the possession of heroin with intent to supply and bailed. 6. In May 2015, whilst still on bail, the applicant was arrested in relation to the conspiracy. 7. In June 2015, the applicant was charged with the 2014 offending and bailed. 8. In July 2015, whilst still on bail, the applicant was arrested again in relation to the conspiracy, and more evidence was found. 9. Later that month the applicant’s 2014 case was sent to the Crown Court, where (under the early guilty plea scheme) he pleaded guilty. In November 2015, he was sentenced to 3 years' imprisonment for that offending. 10. In April 2016, he was charged with the conspiracy to which, as we have already indicated, he pleaded guilty in February 2017, and was sentenced in May 2017. 11. The Grounds of Appeal are that the sentence was wrong in principle and manifestly excessive in that: (i) the starting point was too high; (ii) insufficient credit was given for the guilty plea (as the prosecution only reduced the basis on which they put the case shortly before the trial date); and (iii) insufficient adjustment was made for totality (given that the 2014 and conspiracy cases were dealt with separately, but the judge accepted that they should have been dealt with together). 12. On the applicant's behalf Mr Turton submits that the case was essentially concerned with the targeting by the police of the appellant's family and associates' activities in relation to the supply of drugs, during the course of which the applicant was arrested on a number of occasions. After his arrest in relation to the 2014 offending, as Mr Turton puts it, he was also involved from time to time thereafter. 13. Mr Turton points out that the imposition of the instant sentence was at a time when the applicant was coming to the end of the service of the 3-year sentence for the 2014 offending. Mr Turton underlines that the practical effect of the combination of the 3year sentence and the instant sentence is an overall sentence in the order of 8 years' imprisonment. He submits that that is too long – particularly if the applicant’s conspiracy offending is more appropriately categorised as the equivalent of being in category 3 in a significant role, as he submits that it should be. He further submits, in the alternative, that even if the appropriate categorisation is on the cusp of categories 2 and 3 and at the high end of a significant role the sentence, viewed overall, was still too long. 14. Mr Turton submits that taking the Recorder's starting point of seven-and-a-half years and adding to it what must have been the notional sentence after trial for the 2014 offending, namely four-and-a-half years, the overall notional sentence after trial must have been in the order of 12 years. Given that both cases were concerned with relatively small quantities being dealt to friends and associates, he submits that such an overall notional sentence, and the consequent reduction for plea to 8 years, were too long. 15. That said, Mr Turton concedes that this is plainly not a case which requires a very substantial reduction to bring it within what he submits is the appropriate range, but nevertheless argues that a deduction of perhaps 1 year might better reflect the applicant's criminality. 16. Although Mr Turton has made his submissions attractively, we disagree. The judge gave the most careful consideration to what was the appropriate categorisation of the applicant’s offending, the appropriate discount for plea, and (with totality in mind) the appropriate level of sentence in the round (albeit that she did not have full details as to the 2014 offending). In the result, it seems to us that, essentially for the reasons given by the single judge, it is not arguable that the sentence imposed was wrong in principle or manifestly excessive. Accordingly, this renewed application is refused. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 SMITH BERNAL WORDWAVE

```yaml citation: '[2018] EWCA Crim 376' date: '2018-02-22' judges: - LORD JUSTICE HAMBLEN - MR JUSTICE SWEENEY ```

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} ======

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 202300549/A3 [2023] EWCA Crim 1342 Royal Courts of Justice Strand London WC2A 2LL Tuesday, 31 October 2023 Before: LORD JUSTICE WILLIAM DAVIS MR JUSTICE HOLGATE HER HONOUR JUDGE DE BERTODANO (Sitting as a Judge of the CACD) REX V LIAM BROWN __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T 1. MR JUSTICE HOLGATE: On 26 September 2022 in the Crown Court at Sheffield, before His Honour Judge Dixon, the applicant pleaded guilty to one count of witness intimidation between 2 September 2021 and 22 March 2022, contrary to section 51 of the Criminal Justice and Public order Act 1994. 2. On 30 January 2023 before Her Honour Judge Wright and a jury, the applicant was convicted of assault occasioning actual bodily harm (count 2) and putting a person in fear of violence by harassment between 30 August and 3 September 2021, contrary to section 4 of the Protection from Harassment Act 1997 (count 3). 3. On 31 January 2023 the judge sentenced the applicant to an overall term of five years' imprisonment, comprising consecutive sentences of 21 months for the assault, 12 months for the harassment and 27 months for the witness intimidation. He renews his application for leave to appeal against sentence following refusal by the single judge. 4. The complainant, Olivia Jackson-Parry had been in a relationship with the applicant since May 2020. The relationship was not a happy one and there were frequent arguments. On 31 August 2021 there was a heated dispute which resulted in the complainant fleeing her home and the police being called. The applicant left before the police arrived. 5. Following this incident the complainant was in contact with the applicant over the phone and on 1 September 2021 at around 11.30 pm he asked if he could come round to her house to have a bath. She agreed as she thought it would cause less trouble if she did so. 6. While the applicant was there, he looked at the complainant's phone and falsely accused her of cheating on him. The applicant pushed the complainant up against a wall, put his hand on her throat and squeezed, at least twice, applying pressure which made it difficult for her to breathe (count 2). When the assault stopped, the complainant was so scared she asked the applicant for permission to go out for a cigarette. When she returned the applicant grabbed her hair and said: "Do you not understand what you are doing to me?" She asked the applicant to leave but he refused and stayed the night. In the morning she again asked him to leave but he refused, saying he had nowhere to go. 7. That evening the complainant felt unwell and was passing blood. She wanted to get some rest and see how she felt in the morning but the applicant insisted that she receive medical attention immediately. He contacted the NHS helpline, shouting that she was "pissing blood out of her arse" and "well if she dies, she dies." He then put the phone down, came over to the complainant and punched her in the face and pulled her hair. 8. They went to hospital and whilst the complainant was being treated by a nurse and away from the applicant she told the nurse what had happened. The police were contacted and the applicant was arrested. 9. He was interviewed on 3 September 2021 and charged with the assault. He was released by the court on bail with conditions not to contact the complainant or attend her address. However he did contact her and tried to put her under pressure not to go through with the court case. As a result she made a statement to the police on 4 October 2021 saying that although the content of her original statement remained true, she wished to withdraw her support for the case. She wanted to move forward with her life and put the incident behind her. However the prosecution decided to proceed and to summons the complainant to court to give evidence. 10. When the applicant found out about this he tried to get the complainant to say that she had lied about the assaults. Eventually I March 2022 she provided a further statement to the police setting out what had happened over the intervening months. 11. She said that they had been in contact since September 2021. She had initiated some of the contact and some of the conversations had been pleasant. However the applicant had put her under pressure to call the police and tell them that she had lied in her original statement. She was unwilling to do this. He visited her address and called her and sent text messages. In one call he asked, "When are you putting a fucking statement in? I’m gonna come round there with a fucking knife and fucking butcher you like a pig." In another call he told the complainant that he was "the boss" and threatened her with "another throttling". He also messaged her, saying: "I'll go wild if you do this to me and I'll have nothing to lose". He sent her another message telling her what he wanted her to put in the new statement to the police. 12. There was Ring Doorbell footage of the applicant attending her premises and recordings and screen shots of calls and messages showing that he was trying to get her to change her evidence. 13. This intimidation led to the complainant's retraction and to her disengagement with the court process, necessitating a summons. She had contacted the police on multiple occasions asking for the court case not to go ahead. 14. On 17 March 2022, just before the original trial date, the complainant agreed to meet with the applicant and he attended at her home. When she answered the door the applicant pushed past her and went into the living room. He told her that she needed to make a statement to the police telling them that she had lied about the assaults. When she refused, he said: "You will do it." He pushed her onto the sofa and when she started to cry he called her a baby. The complainant told him she would call the police later and then the applicant left. 15. On 18 March she did contact the police again and said she was not happy with the court case continuing. The applicant continued to send messages telling her, "You need to contact and write this in your statement". He told her what to write and to make out that the witness in the trial was a compulsive liar. There were messages telling her, "Do as you're fucking told" and that he would strangle her if he was there. In one message he said, "Stupid fat bitch, I'll come and slash your throat". In one message she said to him, "You've made me feel afraid in my home". He said he felt like "banging her head against a fucking wall" and then warned her not to call the police about them. 16. We have read the complainant's victim personal statement which describes the serious harm that she has suffered as a result of the offences. 17. The applicant was aged 30 at sentence. He had five convictions for 10 offences spanning from 2012 to 2020. His early offences included threatening behaviour, theft, arson and racially aggravated criminal damage. In 2013 he was sentenced to nine months' imprisonment for affray. In 2020 he was fined for sending a threatening communication. 18. For the purposes of section 33 of the Sentencing Act 2020 we consider that no pre-sentence report has been necessary at any stage of these proceedings. 19. In her sentencing remarks, the judge said that the assault fell within Category A culpability because there had been strangulation and the complainant was vulnerable. The harm was either Category 1 or very high Category 2. The harassment was a high culpability offence because the applicant intended to maximise fear and distress. The complainant suffered a very high level of distress amounting to category 1 harm, alternatively, the harm was at the high end of Category 2. 20. The judge referred to certain of the antecedents as an aggravating feature. She explained why she would allow 25 per cent credit for the guilty plea for the witness intimidation. She said that she had applied the totality principle by reducing the sentence for each of the three offences and in addition had reduced the sentence for the harassment to reflect the fact that the assault had formed part of that continuing offence. 21. In the grounds of appeal settled by counsel, it was submitted that: 1. The sentence imposed for the witness intimidation based upon a sentence after trial of three years was manifestly excessive. 2. The sentence for the harassment should have been concurrent rather than consecutive in order to respect the totality principle. 3. The overall sentence of five years failed to accord with the totality principle and was manifestly excessive. 22. We have also read the renewed grounds drafted by the applicant himself. In our judgment he does not show any arguable point to justify granting leave to appeal. He repeatedly seeks to minimise the gravity of his offending and fails to appreciate how serious it was. We agree with the single judge that the proposed grounds of appeal against sentence are unarguable. 23. The guideline on totality recognises that consecutive sentences are ordinarily appropriate where the offences committed are dissimilar in nature (e.g. the witness intimidation), or where they are similar but the overall criminality would not be sufficiently reflected by concurrent sentences. The guideline gives as an example the commission of offences of domestic violence for sexual offences against the same individual. But the court must consider whether the aggregate of the series of consecutive sentences is just and proportionate to the overall criminality. 24. The totality principle may be satisfied where consecutive sentences on each count had been reduced relative to the sentence that might otherwise have been passed if they had stood alone. That is the approach which the judge took here. 25. The harm for the section 47 assault and for the harassment stood on the cusp of categories 1 and 2. Bearing in mind the aggravating features of the case, sentences of around 30 months and 18 months after trial could have been justified if treated separately. In our judgment the sentences imposed of 21 months and 12 months satisfied the totality principle. 26. The witness intimidation in this case involved high culpability and serious harm. It was committed over many months and serious threats were made causing the victim to seek to withdraw her support for the prosecution on several occasions. She was also put under pressure to lie. The object was to prevent the prosecution of serious offences. Even after allowing for the totality principle it cannot be argued that the consecutive term imposed of 27 months after credit for plea is manifestly excessive, or that the overall sentence was manifestly excessive. 27. Accordingly, for these reasons, the renewed application for leave to appeal against sentence is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2023] EWCA Crim 1342' date: '2023-10-31' judges: - LORD JUSTICE WILLIAM DAVIS - MR JUSTICE HOLGATE - HER HONOUR JUDGE DE BERTODANO ```

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Neutral Citation Number: [2016] EWCA Crim 684 Case No: 2015/5289/a4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 17 May 2016 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE HICKINBOTTOM MR JUSTICE SOOLE - - - - - - - - - - - - - - R E G I N A V ANTHONY SCULLION - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr D Oscroft appeared on behalf of the Applicant The Crown did not appear and was not represented - - - - - - - - - - - - - - J U D G M E N T (As Approved by the Court) 1. MR JUSTICE SOOLE: This is the applicant's renewed application for leave to appeal against sentence. On 29th October 2015 he was convicted of the offence of a threat to kill, contrary to section 16 of the Offences Against the Person Act 1861 and sentenced to an extended sentence of six years with a custodial term of four years. 2. On 14th February 2014 he was in the waiting area of Hereford Magistrates' Court before the final hearing of an application by Hereford District Council Children's Services Authority for a care and placement order in respect of his four month old daughter. She had been taken away from her mother at birth. The applicant wanted to care for her. The Authority did not think that a feasible option. 3. Also in the waiting area was the Authority's social worker on the case, Mrs Gray. The applicant told her that he had said goodbye to his daughter the day before. He then said: "This is not over." He then threatened to cause damage in the City of Hereford and said that after he had finished he would come after her and kill her and her husband. Wherever she lived he would find her, however long it took he would kill her. He had once looked for someone for 11 years. He spoke in a calm and quiet voice which Mrs Gray saw as confirming the reality of the threat. 4. This inevitably had a profoundly shocking and distressing effect upon Mrs Gray and has continued to do so. She told the jury that in the course of her 20 years in children's social work people had many times shouted and sworn at her, but no one had ever threatened to kill her. 5. Following the jury's verdict, his counsel Mr Oscroft, who appears before us today, asked the judge to order a pre-sentence report. The judge declined to do so. We are told and accept that the question of dangerousness was not explicitly raised by the judge in the course of mitigation and in consequence counsel did not make submissions on that point. That was unfortunate. Counsel has now had the opportunity to make those submissions. 6. Having heard mitigation, the judge concluded that the conditions for imposing an extended sentence were satisfied, namely that the offence was a specified offence, he was satisfied there was a significant risk to members of the public of serious harm, namely death or serious injury, physical or psychological, occasioned by the commission of further specified offences and that the applicant had been previously convicted of an offence listed in schedule 15B, namely an offence under section 18 of 1861 Act committed in 2002 for which he had been sentenced to three-and-a-half years' imprisonment and in any event the appropriate custodial term would be at least four years. He then imposed the extended sentence. 7. In reaching this conclusion the judge in particular took account of the applicant's conviction in 2002 and also in 2008 of an offence under section 20 of the 1861 Act for which he was sentenced to a term of four years three months (not far short of the maximum for that offence) and one year consecutively for the offence of witness intimidation. The judge also took account of his previous hostile conduct towards Mrs Gray in 2013, her vulnerable position as a care worker and the genuine fear in which she had been placed. There are also previous convictions of affray and of possession of an offensive weapon. 8. Mr Oscroft submits first that the judge should have made it explicitly clear that he was considering the question of dangerousness, and we have accepted that. In that case Mr Oscroft submits he should also have considered section 156(3) and (4) of the Criminal Justice Act 2003 which in such circumstances required the court to obtain and consider a pre-sentence report for that purpose, unless the court considers it unnecessary to do so. However, Mr Oscroft submits that there was no tenable basis for concluding that there was a significant risk to members of the public and for that reason this court should conclude under section 156(7) (a) that the judge was justified in not obtaining any pre-sentence report, albeit for the wrong reason, and accordingly this court should not itself obtain and consider a pre-sentence report. 9. Mr Oscroft's twin submission, as he describes it, is that the custodial term of four years was manifestly excessive in the light of the authorities. 10. In our judgment, for an offence of this chilling nature, with a threat to kill delivered calmly and deliberately, and with the background of serious offences of violence and intimidation, it was inevitable that the question of dangerousness should arise. We also consider that the judge, who had the advantage of seeing the defendant in the course of the trial, had more than sufficient evidence to reach the conclusion of dangerousness and that the obtaining of a pre-sentence report was unnecessary. 11. As to the custodial term, the decision of this court in Attorney General's Reference No 84 of 1999 demonstrates for offences of this nature on a plea of guilty a range between two-and-a-half and five years' imprisonment. That decision points to a number of factors which bear on the gravity of a threat to kill. In that decision, the Lord Chief Justice said that it may for instance be relevant whether the threat is uttered in a state of sobriety or drunkenness and whether there is repetition of the threat, and it is relevant to have regard to the vulnerability of the party threatened. Most important, however, in any case of this kind is the reality of the threat, the likelihood in the view of the party threatened that the threat will be carried out and the extent to which that party is put in genuine fear. It is very relevant to consider whether the party in making the threat is known to be violent and whether the party making the threat is known to have some grudge or animus or grievance which may cause him to act in the manner threatened. 12. In his sentencing remarks the judge specifically had that case in mind and evidently had those particular features in mind. As to vulnerability, he noted that this was a public sector service worker, working in a highly sensitive area of children's welfare. The reality of the threat was menacingly realistic and repeated calmly and quietly in the context of other threats. Mrs Gray was evidently put into genuine fear knowing that the applicant had a grudge against her. She knew of his record of offences. In so far as there was any mitigation, he acknowledged the emotional intensity of the day for the applicant, albeit, as Mr Oscroft properly recognises, that could provide no possible excuse for his behaviour. 13. In Mr Oscroft's powerful submissions made to us today, he emphasised the absence of a weapon in this case and also made the point that despite the extreme stress of this day, perhaps the greatest stress he could have in his life, there had in fact been no violence and that give an indication of the level of gravity and therefore of the limited risk that he posed. As to the custodial term, he distinguished cases where there was a contemporaneous threat, repeated threats or more specific threats. In our judgment, the feature here of a threat for the future, calmly and deliberately made in the context of what Mrs Gray knew about the applicant's character, does not make those other matters distinguishable; indeed it emphasises the gravity of the offence. 14. In our judgment, all these factors made this a particularly serious offence and there are no grounds for challenging the finding of dangerousness, the decision to give an extended sentence or the length of either element of that sentence. For these reasons, permission to appeal is refused.

```yaml citation: '[2016] EWCA Crim 684' date: '2016-05-17' judges: - LORD JUSTICE BURNETT - MR JUSTICE HICKINBOTTOM - MR JUSTICE SOOLE ```

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Neutral Citation Number: [2019] EWCA Crim 1125 No: 2019 00500 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 5 June 2019 B e f o r e : LADY JUSTICE NICOLA DAVIES DBE MR JUSTICE MARTIN SPENCER HIS HONOUR JUDGE PICTON R E G I N A v RAWLINGS AKONEDO Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr S Levy (a solicitor advocate) appeared on behalf of the Applicant J U D G M E N T (Approved) MR JUSTICE MARTIN SPENCER : 1. By this application Rawlings Akonedo renews his application for permission to appeal against sentence, permission having been refused by the Single Judge. 2. On 21st November 2018 the applicant pleaded guilty to an offence of aggravated burglary, for which he was sentenced on 10th January 2019 to five years' detention in a young offenders' institution, and to a further offence of assault occasioning actual bodily harm, for which he was sentenced to two years' detention concurrent, making a total of five years' detention. 3. The court record sheet records that the applicant was also ordered to pay a Victim Surcharge Order of £140, but this was an error and my Lady has ordered that the court record sheet be amended to record a Victim Surcharge Order of £30. 4. On this application Mr Levy has appeared for the applicant pro bono , and we are extremely grateful to him for doing so and for the assistance given not just to the court but to the applicant. 5. The lead offence of aggravated burglary was committed by this applicant together with two others. The applicant was born on 11th November 2000 and the offence was committed on 23rd October 2018, when the applicant was still 17 years old - some three weeks short of his 18th birthday. He had attained 18 by the time he was sentenced on 10th January 2019. One of his co-accused, PA, was born on 25th February 2001 and was therefore aged 17 both at the time of the offence and at the time of sentencing. But he attained his 18th birthday approximately seven weeks later. He is now 18. 6. The facts of offences are that on 23rd October 2018 the victim (aged 58) was at his home address watching television in his living room when the co-accused PA, armed with a claw hammer, burst through the door and struck the victim fifteen times on the arms and legs using the claw hammer. He threatened to break every bone in the victim's body unless he opened the back door, which he did. This allowed the applicant together with the third co-accused to enter the premises. As shown on the CCTV, they had hoods pulled up to disguise their appearance. They pushed the victim back into his living room. The applicant struck the victim in the face a few times and they demanded to know where the money was. They demanded bagged cannabis from the victim, who told them that he had none. He did have fifteen cannabis plants upstairs, but when told to cut them down he said that the plants were not ready to be harvested. 7. A neighbour who had seen two men acting suspiciously outside the victim's house contacted the police. Police officers arrived at the scene whilst the three accused were still inside the property and the property was surrounded. The defendants were arrested; and the process of arrest and handcuffing was again shown on the CCTV camera posted inside the victim's house. The whole incident had lasted some 20 minutes. The victim sustained bruising to both arms, cuts to his lower left leg, which caused significant bleeding, and bruising and swelling to both sides of his face. 8. The three defendants were all young man of previous positive good character. They were intelligent and must have known how terrifying the offence would be. They all took the decision to participate. It was agreed before the learned judge that the offence of aggravated burglary fell within category 1 of the Sentencing Guidelines, with a starting point of 10 years' custody and a category range of 9 to 13 years. 9. The sentencing judge did not distinguish between the applicant and the other co-accused with whom the applicant had entered the premises. He took a starting point of 9 years, which in our view was generous; he could easily have gone up from the starting point rather than down, given the circumstances of the offence. He then reduced the sentence to 6 years, after applying the full credit for plea. The sentence was then further reduced to 5 years to take into account the sentence which was to be passed on the 17-year-old co-defendant PA, who fell to be sentenced as a youth as he was still only 17. Although he was the youngest, his offending had been the most serious as he was the one who had forced entry and produced the hammer, repeatedly striking the victim and threatening to break every bone in his body. 10. On behalf of the applicant, Mr Levy has submitted that the sentence imposed was arguably manifestly excessive and the 9-year starting point should have been reduced to between a half and two-thirds for the applicant because he was a youth at the time of the offence. Thus it is argued that the learned judge should have taken additional account of the applicant's age at the time of the offences and thus started at a lower starting point, this argument being raised particularly by comparison to what the learned judge did with PA, the co-accused. It was also argued that there had been insufficient account taken of the applicant's good character. 11. However, as was pointed out in the case of Hashi [2019] EWCA Crim 185 , the guideline on sentencing children and young persons is only a rough guide and must not be applied mechanistically. The Court said: "The guideline internally recognises that it is only a rough guide and that ultimately it is a matter for the sentencing judge as to what, if any, discount is to be given to a young offender in any particular case." 12. Clearly the same factors cannot apply when sentencing a person who, at the date of the offence, was three weeks shy of his 18th birthday as to when sentencing, say, a 15-year-old. 13. In refusing permission to appeal, the single judge stated: 1. The judge had to sentence three young men for an offence of aggravated burglary. One of them also had to be sentenced for an offence of robbery. 2. The grounds of appeal are that the judge did not deal with the fact that the applicant was 17 years old at the time of the offence in the manner contemplated by the Sentencing Guidelines. However, the judge did in fact make a reduction on account of the fact that the applicant was not much older than the other defendant in relation to whom the judge applied the Sentencing Guidelines. He reduced the sentence from 6 to 5 years to reflect that point. 3. Bearing in mind that the applicant was almost 18 when the offence was committed, I consider that the judge made adequate allowance for the applicant's age." 14. We are in agreement with the single judge and for the reasons stated by him we consider that it is not reasonably arguable that the sentence was manifestly excessive. The application is therefore refused. 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: '[2019] EWCA Crim 1125' date: '2019-06-05' judges: - LADY JUSTICE NICOLA DAVIES DBE - MR JUSTICE MARTIN SPENCER - HIS HONOUR JUDGE PICTON ```

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 1706 Case No: 202003068 B1 and Case No: 202003221 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HIS HONOUR JUDGE LICKLEY QC T 20207057 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/11/2021 Before : LADY JUSTICE THIRLWALL MR JUSTICE GOSS and HIS HONOUR JUDGE MARTIN EDMUNDS QC - - - - - - - - - - - - - - - - - - - - - Between : CHRISTIAN FEARON Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Holland QC for the Appellant Brian O’Neill QC and Catherine Pattison for the Respondent Hearing date: 19 October 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Reserved Judgment Protocol: This judgment will be handed down by the Judge remotely, by circulation to the parties’ representatives by email and if appropriate, by publishing on www.judiciary.net and/or release to Bailli. The date and time for hand down will be deemed to be 10.30 am on 17 November 2021. MR JUSTICE GOSS : Introduction 1. Lennox Alcendor was murdered on 21 st February 2020. He died from a single stab wound to his neck. He was 42 years old. On 6 th November 2020 at the Central Criminal Court James Rochester, who was 43 years of age, and Christian Fearon, who was 30, were convicted of his murder. Rochester was also convicted of having an offensive weapon, the knife that was used to commit the murder. He admitted that he inflicted the fatal wound but claimed he was acting in self defence. He had pleaded guilty to robbery of the deceased at the start of the trial. Christian Fearon was convicted of robbery by the jury. He was acquitted on the judge’s direction at the close of the prosecution case of having an offensive weapon, which was a screwdriver without a handle that was found on him on his arrest, the prosecution having indicated that there was insufficient evidence to maintain the allegation. He did not give evidence. He renews his application for leave to appeal against his conviction for murder, having been refused leave by the single judge, who did grant him leave to appeal against sentence. We shall refer to him as the appellant. 2. For the offence of murder he was sentenced to life imprisonment with a minimum term of 24 years less the days spent on remand with a concurrent sentence of 4 years for the robbery. Rochester was sentenced to life imprisonment with a minimum term of 28 years for murder with concurrent sentences of 4 years and 10 months respectively for the offences of robbery and having an offensive weapon. We are grateful to Mr Michael Holland QC, who represented the appellant at the trial, for his written and oral submissions. He has represented the appellant at this hearing on the sentence appeal only. The prosecution have been represented by Mr Brian O’Neill QC and Ms Catherine Pattison, to whom we are also grateful. The facts 3. On 21 February 2020 the appellant and Rochester had two bottles of rum, which the appellant had stolen and wanted to sell or exchange for class A drugs, to which he was addicted. Lennox Alcendor and Ashley Tudor had received a call to buy the alcohol. They met the appellant and Rochester on Cricklewood Broadway, having arrived there by car at about 06.30 am. The four men went into a flat on Cricklewood Broadway where a disagreement developed. After about 3 or 4 minutes CCTV footage captured the four men on the Broadway. Ashley Tudor and Lennox Alcendor had taken the rum without providing any payment or supplying any drugs. As the group had left the flat, Rochester picked up a blue handled saw/knife and put it in the back of his waistband . The group walked along the Broadway and CCTV captured the argument between Lennox Alcendor and Rochester developing into a fight. As they walked, Lennox Alcendor took one of the bottles of rum from Ashley Tudor and turned towards Rochester, who produced the saw/knife from his waistband and held it in his right hand . What happened thereafter was not captured by CCTV but, after about 50 seconds, a witness began recording events on a mobile phone. By this time the fatal wound, which was to the front of Lennox Alcendor’s neck and 11.5cm deep, had been inflicted and he was lying on the ground. The mobile phone footage showed the appellant and Rochester punching and kicking him . Rochester accepted that he took his watch. 4. Rochester was arrested on 23 February 2020. The appellant was arrested two days later and gave an account in interview in which he accepted at trial that he had lied about not being violent towards the deceased . The prosecution case was that Rochester and the appellant had acted together when they murdered and robbed Lennox Alcendor with the appellant acting as a secondary party . In addition to the recordings, the prosecution relied on eye-witness evidence, his untruthful account when interviewed and his failure to give evidence. His case was that the jury could not be sure he knew Rochester had a knife before the fatal injury was inflicted or that he was party to an attack on the deceased at the time the fatal injury was inflicted or had the requisite intent for murder. 5. Rochester gave evidence that Lennox Alcendor was threatening and in possession of a knife. He picked up the blue handled saw/knife from a table in the flat as he was fearful of being attacked. Outside he was threatened with a bottle and a knife, so he took the saw/knife out of his waistband and stabbed the deceased in self-defence, not realising he had stabbed him in the throat. He accepted stealing the watch and that the recordings showed him assaulting the deceased by punching, kicking and stamping on him. The renewed application for leave to appeal against conviction 6. The three grounds of appeal against conviction all relate to jury conduct save a discrete matter arising out of one question asked of his co-accused in cross-examination by prosecuting counsel, which forms part of the rolled-up third ground. We deal with that question first. 7. Under cross-examination Rochester agreed that he was addicted to crack cocaine and the only way to fund his addiction was by crime: he stole and robbed to get money to buy drugs. He was asked whether that lifestyle applied to the appellant as well and he said that it did. Following submissions made in the absence of the jury, the prosecution accepted the suggestion in respect of the applicant’s lifestyle should not have been made. The matter was dealt with by an agreed fact being read to the jury that “such a suggestion should not have been made. There was no evidence to support the contention that he has robbed in the past. The suggestion was withdrawn.” 8. The first ground is that the conviction of the appellant is unsafe because of a lurking doubt that the Jury deliberations may have been conducted inappropriately, thereby not following the legal directions given, particularly given the apparent inclination of a Juror to seek to go behind the directed acquittal on count 3. 9. This ground arises out of a note sent by a juror at the conclusion of the summing-up in which clarification and legal direction was sought as to whether, even though the count had been ‘dropped’, if proved, could his possession of the screwdriver be used on the murder and robbery counts. Following an exchange with counsel, in which he accepted Mr Holland’s contributions, the judge directed the jury in clear terms that the appellant had been found not guilty, they must abide by that, the prosecution having accepted that there was insufficient evidence to maintain the allegation, and therefore that count had no relevance at all to any count he faced or any allegation against him. The judge’s directions were correct and appropriate, and can have left the jury in no doubt that the count had no relevance to the case against the appellant on the other counts. No submission of no case to answer was made and there was a significant body of evidence against him on those counts. 10. Ground two is that that the conduct of jurors in deliberations may have been oppressive to dissenters thereby rendering the appellant’s conviction unsafe. On the fourth day of their deliberations a note from the jury disclosed that one of them had researched the definition of manslaughter, upon which the judge had given full directions. The response of the juror in question, who accepted he had conducted such research, stated in a separate note that, although he had been responsible for submitting jury notes during the trial, he had been prevented by fellow jurors from sending more. His research had raised his curiosity as to ‘loss of control’ and ‘sober’. Enquiry of him by the judge as to what he had disclosed to fellow jurors before he was told to stop by them revealed that he had said very little. The judge made all necessary enquiries, confirmed that very little had indeed been disclosed by the juror, heard submissions from counsel and adopted an agreed approach of discharging that juror and giving appropriate directions to the remaining jurors as to their responsibilities and the need to apply his directions. His approach was entirely conventional and correct. No application was made to discharge the whole jury. Nothing occurred thereafter and the jury reached verdicts two days later. There is no basis for concluding that any untoward pressure or otherwise inappropriate conduct had occurred or influenced the verdict. 11. The final ground is that, cumulatively, the conviction should be regarded as unsafe given the inappropriate cross-examination suggesting the appellant had a propensity to use serious violence, the reluctance of at least one juror to accept that he did not use a blade in assisting his co-accused despite his acquittal, the conduct of another juror in seeking information during retirement from internet sources (who was discharged) and the conduct of other jurors in preventing one of their members seeking guidance from the trial Judge while in retirement, and the relatively weak evidence in the case against the appellant. The court is invited to direct further enquiries be made of the juror who was discharged as to the conduct of fellow jurors in deliberation. 12. Whilst it was unfortunate that the lifestyle question was asked, the matter was appropriately remedied with the agreement of counsel. As the single judge explained in his reasons when refusing leave, whether looked at individually or cumulatively, none of the issues that arose undermined the jury’s ability to reach a safe verdict nor was there anything to suggest that the 11 jurors who returned verdicts did not follow the judge’s directions that were agreed by counsel or to justify any further enquiry. There was clear evidence of the applicant’s involvement in the offences and is no arguable basis for his conviction being unsafe. 13. Accordingly, his renewed application is refused. Appeal against sentence 14. The appeal against sentence proceeds on two bases. First, it is submitted that the appropriate starting point for the minimum term was 15 years and not the 25 years taken by the judge. Alternatively, the fact that the appellant’s knowledge of the knife was for a matter of seconds before its use by the co-defendant and his significantly lesser role should have led to a greater discount from the 25 year starting point or to limited aggravation from a 15 year starting point, and that Judge did not apply the principles expressed in Kelly v R [2011] EWCA Crim 1462 “sufficiently favourably” to the appellant. Further, it being accepted this was not a murder for gain and that the robbery was an impulsive act following the infliction of injuries, the principle of totality should not have led to a significant uplift in the minimum term. It is also argued that the difference in the two defendants’ previous convictions should have led to a greater distinction in sentence. 15. Both men were heavily convicted. Rochester had 56 previous convictions, including 5 for offensive weapon or bladed article offences, and must have been on licence when he committed the murder having been sentenced to 5½ years’ imprisonment for an offence of wounding with intent to cause grievous bodily harm in 2016. The appellant had 72 previous convictions, including 4 for offensive weapons or bladed article offences between 2006 and 2018. He had no previous convictions for serious violence though had threatened with weapons in the past and had a conviction for affray. 16. The judge placed the robbery in Category 2 Culpability B of the Definitive Guideline for which the Starting Point is 4 years and the range is 3-6 years’ custody. He identified the victim’s vulnerability as a result of having been fatally injured and having disposed of the watch as aggravating factors. There was little or no planning. 17. When summing-up the judge had directed the jury that in order “to find [the appellant] guilty of murder or manslaughter you will have to be sure that he knew of the saw/knife in the possession of Rochester”. In his sentencing remarks he said “You, [the appellant], knew that Rochester had the weapon from at least the point of its production by (him), intending to have it available for use and it was. The jury convicted you on the basis you knew of the weapon before the fatal wound was inflicted… You therefore participated in the crime of murder of Lennox Alcendor with the intention that he would be caused at least really serious harm by a weapon brought to the scene by Rochester”. 18. The saw/knife was taken by Rochester from the house and was removed from the rear of his trousers or belt as he was retreating with the appellant in the street when the deceased raised a bottle to ward them off. The appellant was standing a short distance behind him when he did that and then, as the judge said, “became aware of the knife at that point, if… not before”. Rochester moved at great speed. The prosecution did not suggest the appellant had knowledge of the knife before it was produced. 19. It is common ground that the judge’s finding for the basis of sentence was that the appellant knew of the saw/knife only moments before the fatal wound was inflicted. He was not a party to having taken the weapon from the house to the scene nor was he aware, let alone well aware that a saw/knife was being carried by his co-defendant until moments before it was used to fatal effect. That, submit the prosecution, is not to the point. Their case is clear. Paragraph 5A of Schedule 21 of the Criminal Justice Act 2003 (now paragraph 4 of Schedule 21 to the Sentencing Act 2020) applies to a joint participant who, though not personally responsible for the fatal injury, participates in a murder with murderous intent in which a weapon that was brought to the scene by another attacker is used and he had knowledge of that weapon. They rely on the judgments of this court in R v Goodall [2019] EWCA Crim 1109 at paragraph 42 and, in particular, the judgment in R v. Semusu [2021] EWCA Crim 513 at paragraphs 19 and 20, in which Edis LJ, giving the judgment of the court said: - “19. In sentencing for joint offences, the provisions of Schedule 21 apply to secondary participants as well as principal offenders, but there might properly be a distinction between the minimum terms to reflect the lesser culpability of the secondary party (See Attorney General's Reference (No. 24 of 2008 ), R v Sanchez [2008] EWCA Crim 2936 ). That, though, is because the culpability of a secondary party may be less than that of a principal offender (see paragraph 33): "Although the culpability of the secondary party may in many cases be less than the principal, the sentences must be viewed proportionately in the light of the policy of the law, that he who encourages the commission of a murder or assists with the commission is to be dealt with as a murderer. 20. The number of cases of the present kind where there is a wide gap between the culpability of the principal offender and that of the secondary party has been reduced by the decision of the Supreme Court in R v Jogee [2016] UKSC 8 , [2017] AC 387 . The person who encourages or assists the principal merely foreseeing that he might intentionally cause death or really serious harm is not guilty of murder. In the modern law the secondary party must encourage or assist the principal intending that the principal will intentionally cause death or really serious harm. That is the basis on which Semusu was convicted. He was acquitted of the count of possession of an offensive weapon. We suppose this means that the jury was not sure that Semusu had been any part of the expedition by Nami to arm himself for the fight and that he arrived at the scene at a somewhat later point than Nami had done. Nevertheless, the jury's verdict means that he knew that Nami had that knife before he produced it and that he knew that it was to be used, and assisted in or encouraged that use.” 20. We observe that the facts of that case, summarised in paragraphs 5-8 of the judgment, were that Nami, the principal, had armed himself with a weapon, a large Rambo style hunting knife, to use in an attack and that Semusu knew he was so armed and that he was planning to use the knife. He was, therefore, a secondary party fully engaged in the plan. 21. Each case has to be considered on its own facts and requires an assessment of the culpability of the offender. In this case, the appellant only became aware of Rochester having the saw/blade moments before the attack. Without seeking to lay down any criteria for drawing distinctions in the wide range of factual situations that arise in cases such as this, we do not consider that because he knew just before it was used that Rochester had a knife it follows that he must be fixed with the statutory culpability of the principal. As was made plain in Kelly v R [2011] EWCA Crim 1462, no scheme or statutory framework can be fully comprehensive and the judge must achieve a just result. In paragraph 16 the court said: - “16. Problems of the kind we have identified arise equally starkly in the context of murders committed with a knife taken to the scene where two or more offenders are convicted of murder on the basis of joint enterprise…. Given some of the difficulties which can arise in joint enterprise murders where a weapon is used by one, but only one, of the murderers, the difficulties for sentencing judges are likely to multiply. There will continue to be convictions for multi-handed murders where one or more of the defendants was not aware that a knife or knives were being taken to the scene but who, once violence erupted, were participating in it well aware that the knife would be or was being used with murderous intent. Although guilty of murder they were not party to the taking of the fatal weapon to the scene. For them, their offence is aggravated by the fact that they participated in a knife murder. Paragraph 5A would not provide the starting point in the sentencing decision. For those who did take part or were party to the taking of the knife to the scene, then it would, but care has to be taken not to double count the fact that they participated in a knife murder which has already been factored into the normal paragraph 5A starting point. The judge will therefore be required to make the necessary findings of fact to identify the appropriate starting point, and thereafter to reach the sentencing decision required by the justice of the case. On the basis of the single case currently before us, we cannot give any broader guidance.” 22. In the circumstances of this case, the starting point should, in our judgement, have been 15 years. There were a number of aggravating features, namely, his record of previous convictions, which the judge indicated aggravated the crime of murder “to a limited extent”, his participation in the killing when he knew a saw/knife was to be used and the physical suffering inflicted by the vicious and gratuitous beating by both men after the fatal wound had been caused and then robbing him of a watch, which were all significant. The only mitigating factor was an intent to cause really serious harm rather than death. 23. Balancing these factors, we consider that considerable upward adjustment from the starting point was appropriate. Although Rochester received the same concurrent sentence for the robbery, he had pleaded guilty at the first available opportunity. The appellant’s culpability for that robbery had to be factored in to the minimum term, but not double-counted. 24. There were significant distinctions in Rochester and the appellant’s cases and circumstances. The former armed himself with the saw/knife and used it. He was on prison licence at the time for wounding with intent. He took the lead in the attack and the robbery. There was evidence from Ashley Tudor that, moments before the attack, the appellant indicated he did not want to fight, he simply wanted his bottle back. 25. In our judgment, the appropriate just and proportionate minimum term to reflect the appellant’s total culpability was 21 years’ imprisonment. Accordingly, we allow the appeal by quashing the minimum term of 24 years imposed in the lower court and substituting a minimum term of 21 years to be served under the life sentence for the offence of murder. The concurrent sentence of 4 years’ imprisonment for the offence of robbery remains unaltered.

```yaml citation: '[2021] EWCA Crim 1706' date: '2021-11-17' judges: - LADY JUSTICE THIRLWALL - HIS HONOUR JUDGE MARTIN EDMUNDS QC ```

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No. 2008/00593/A8 Neutral Citation Number: [2008] EWCA Crim 1054 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Tuesday 22 April 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE PITCHFORD and MRS JUSTICE DOBBS - - - - - - - - - - - - - ATTORNEY GENERAL'S REFERENCE Nos. 7 of 2008 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A - v - SOHAIL ANJUM QURESHI - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4A Telephone No: 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Mr J Laidlaw QC appeared on behalf of the Attorney General Mr A Hall QC and Mr R M T Price appeared on behalf of the Offender - - - - - - - - - - - - - J U D G M E N T Tuesday 22 April 2008 THE LORD CHIEF JUSTICE: Introduction 1. On 8 January 2008 in the Central Criminal Court, before the Common Serjeant (His Honour Judge Barker QC), the offender, Sohail Anjum Qureshi, pleaded guilty to preparing for the commission of terrorist acts (count 1), possessing an article for a terrorist purpose (count 2) and possessing a record likely to be useful to a person committing or preparing an act of terrorism (count 3). He received the following sentences for these offences: on count 1, four-and-a-half years' imprisonment (less time spent on remand); on count 2, three years' imprisonment concurrent; and on count 3, 18 months' imprisonment concurrent. 2. The Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer these sentences to this court on the ground that the total sentence of four-and-a-half years' imprisonment was unduly lenient. We grant leave. The Facts 3. On 18 October 2006 the offender was arrested at Heathrow Airport, about to board a flight to Islamabad. His luggage contained two steel batons, two sleeping bags, a portable computer hard drive, a compact disc, night vision binoculars, medical clothing, three rucksacks, two British passports, a number of mobile telephones and nearly £9,000 in cash. 4. Examination of the hard drive in his possession showed that it contained a substantial quantity of material which provided a theological justification for terrorism, and military and intelligence guides downloaded from the internet. The compact disc included a collection of photographs and videos of executions and previous terrorist attacks, and photographs of the offender holding assault rifles. 5. His home address in Forest Gate was searched. He had tried to delete material from his computer before his departure, but had not been wholly successful. This revealed that he had tried to upload a farewell letter on to an Islamist site. The material on his computer was largely further motivational material, but it also revealed e-mail exchanges with Samina Malik, who worked at Heathrow. The offender asked her for advice on current security restrictions. He also communicated with an associate on an extremist internet forum, telling him that he intended to carry out a terrorist operation on his trip to Pakistan. He told the associate that he would buy the night vision binoculars using a false name and pay in cash. The Proceedings 6. The offender was charged under section 5(1) of the Terrorism Act 1996 with preparing for the commission of terrorist acts by (and this was the actus reus) travelling to Heathrow in order to travel to Pakistan (count 1). He was also charged with possession of articles for a terrorist purpose contrary to section 57 of the Terrorism Act 2000 in respect of the items found in his luggage, on the ground that the circumstances gave rise to a reasonable suspicion that his possession of them was for a purpose connected with the commission, preparation or instigation of an act of terrorism (count 2). Finally, he was charged with an offence under section 58 of the Terrorism Act 2000 on the basis that the data on the compact disc and computer hard drive contained information that was likely to be useful to a person committing or preparing an act of terrorism (count 3). 7. The offender was originally charged with Samina Malik, but the indictment was severed on 9 October 2007 as a result of the late discovery of internet material that the prosecution thought might be of assistance in his prosecution. His trial was re-fixed to start on 7 January 2008. 8. On the day of the trial the offender sought from the Common Serjeant an indication under the Goodyear procedure of the sentence he might expect if he pleaded guilty. The prosecution and the defence agreed a factual basis, including aggravating and mitigating features for the judge for the purpose of this exercise. It was as follows: "1. A sentence indication is sought upon the basis of a guilty plea to each of the three counts on the indictment, and on the assumption that there is no sustained challenge to the case as put by the prosecution in the Opening Note. 2. The aggravating features arise from the nature of the charges of preparing for the commission of terrorist acts, and the possession of materials for that purpose or likely to be useful for such a purpose. The prosecution are unable to identify with precision either the nature or location of any proposed terrorist activity, or whether it was to be in the form of direct involvement or assistance provided to others; for example, by the provision of funds or the materials particularised in count 2. It is agreed that either activity was to be out of the jurisdiction and potentially in Pakistan or Afghanistan. It is not asserted that there was a concluded intention to carry out or assist any particular act of terrorism. 3. The mitigating features include: (a) The pleas of guilty, albeit on the eve of the trial. (b) The defendant's previous good character and antecedents. (c) The particular inchoate nature of the offence alleged in count 1; committed as the journey to the airport was begun, and not demonstrating a concluded intention to engage in or assist terrorist activity. (d) Insofar as there was a willingness to engage in or assist any terrorist activity, it was conditional upon the opportunity arising, uncertain in nature, and of limited proposed duration. 4. The Attorney General's right to seek leave to refer the sentencing of an offender to the Court of Appeal, and the defendant's right to seek to appeal any sentence, is unaffected by any Goodyear indication." 9. The Common Serjeant indicated the following day that he would not impose a sentence in excess of six years' imprisonment. The offender proceeded to plead guilty to each of the three counts on the indictment. In mitigation, his counsel contended that he was something of a "Walter Mitty" character, who was exaggerating what he was doing and playing a role to impress others. Many of the documents were found in the recycle bin of the hard drive, which the offender had thrown away and would not have had the expertise to recover. The offender was a well-educated man aged 30, of good character, whose career in dentistry was in ruins. His imprisonment would cause great suffering to his parents, who were in Pakistan and unable to visit him. The Common Serjeant confirmed that he had noted reports from Belmarsh which showed the offender's good progress there. 10. The relevant part of the Common Serjeant's sentencing remarks reads as follows: "The agreed factual basis document indicates that here there is no sustained challenge to the case put forward in the opening note and that the prosecution say that really it is self-evident that you were travelling to a militant hotbed with money and equipment in order to make yourself available to support your cause in one way or another. They cannot identify with precision where you were going or any proposed activity or whether it was to be in the form of direct involvement or assistance provided to others. It is agreed in that document that the activity was to be outside of this jurisdiction and it is not asserted that there was a concluded intention to carry out or to assist any particular act of terrorism. I accept that the offences under section 5 and under section 57 are clearly not as culpable as attempting to commit something, or actually committing a terrorist act. Nevertheless any form of terrorism, wherever it is and whatever it is, is an affront to civilisation and can lead to untold grief and destruction and a man with your educational background would be well aware of that fact. The main mitigating feature is that you pleaded guilty, albeit at a late stage. I am also prepared to take into consideration that your case was severed by an order of the court and could not be dealt with earlier. You have no previous convictions. You have high educational qualifications. Additionally, and importantly, there is no evidence of your connection with any plot or plans of any sort. There may be, as has been powerfully urged by Mr Hall, something of a Walter Mitty characterisation about you. I have given this matter anxious thought and my conclusion on the agreed matters placed before me is that on the very wide spectrum covered by section 5 and section 57, the facts of this case fall at the lower end. .... My starting point for the totality of these offences on the basis which they have been presented is one of six years, as has been mentioned, but a late but comprehensive plea merits a reasonable discount." In the event, the discount given by the Common Serjeant was one of 25 per cent, which produced a sentence of four-and-a-half years' imprisonment (less 432 days spent on remand). 11. There was a degree of dispute between counsel as to the basis upon which this court should approach this offending. The offender pleaded guilty on a basis that was set out in writing and agreed by the prosecution. He did so after the Common Serjeant had given an indication of the sentence that he would be likely to receive on the agreed basis under the Goodyear procedure. 12. The plea was entered and accepted at a time when there was an unresolved issue as to the admissibility of evidence of internet correspondence ("AT1") to which the offender was party. The prosecution sought originally to use this material to flesh out some of the detail in the agreed basis of plea at the time of sentencing. Defence counsel objected to this course. The judge referred to this material and said, somewhat cryptically, in his sentencing remarks: "I note the recent observations of both counsel". He did not, however, make any further reference to that material. 13. It would not have been right for the judge to have deployed that material in order to go beyond the facts that formed the basis of the plea of guilty. Nor would it be right for us to do so. 14. Mr Laidlaw on behalf of the Attorney General referred us to the guidance given by this court in relation to sentencing for terrorist offences in R v Barot [2007] EWCA Crim 1119 , where this court observed that, in approaching the sentence for an inchoate offence it is appropriate to start by considering the sentence that would have been appropriate had the objective of the offender been achieved. That comment is of some significance when we consider the submissions made by Mr Laidlaw. He sought to persuade us that the sentence imposed in this case was unduly lenient by reference to a number of other terrorist cases in which it was possible to infer that the activity being carried on was in support of terrorist activities that would include acts of murder. As Mr Laidlaw accepted, most of the authorities to which he referred us were cases more serious than that of the offender. That was not, however, his submission in relation to R v Khan and Others (18.02.08), who were recently sentenced at Leicester Crown Court for offences under section 5 . 15. The most startling offence in that case for which Khan was convicted, was of plotting to kidnap a serving soldier in Birmingham, to decapitate him and to release a video of the killing in order to demoralise others serving in the Armed Forces. That resulted in a life sentence for Khan, who was the ringleader. The other more relevant offences were under section 5 of the 1996 Act. Those offences consisted of shipping containers of equipment out to terrorists. There were two separate consignments of containers that formed the subject of the charges, containing a very substantial amount of equipment. There was evidence that these two consignments were part of a course of conduct that had included two previous consignments. While Khan was the ringleader, the trial judge found that the other defendants' assistance had been essential to the overall success of the enterprise. The sentences imposed on the three of them (before making a discount for guilty pleas in two cases) were five years, six years and seven years' imprisonment. It was not suggested by Mr Laidlaw that those sentences were in any way inadequate for those offences. 16. It seems to us that the sentence imposed upon the offender must be considered on the following basis. He is an educated man without any criminal record. He had become infected with extremist ideology. This had led him to plan to go abroad to assist in terrorist activities, either in person, or with the funds and limited equipment that he was carrying -- the "field material" and the extremist material on the disc. However, there was no weaponry and no explosives. Nor was there any finding of the precise support that he might give to terrorism, or where he would give it. We consider that the seriousness of his offences is comparable to that of the co-defendants in Khan . 17. The evil of terrorism, whether in this country or elsewhere in the world, is reflected by the heavy maximum sentences that the various offences carry: life imprisonment in respect of section 5 of the 2006 Act; 15 years in respect of section 57 and 10 years in respect of section 58 of the 2000 Act . Within these maxima there is a very broad spectrum of potential offences. The judge found, rightly in our view, that the offending in this case fell at the lower end of the scale. The nexus between the acts committed by the offender and potential terrorist activity was relatively remote. Furthermore, the judge accepted that the offender might be something of a Walter Mitty character (that there might have been a degree of play-acting in his conduct). 18. In these circumstances we have concluded that the sentence before discount of six years' imprisonment was a lenient sentence, but not unduly so. 19. What of the 25 per cent discount for the guilty pleas? The submissions for the Attorney General suggested that because they were so late in the day, the discount was excessive. Had the pleas been entered promptly, they would have attracted a discount of one-third. Was 20 per cent over-generous, having regard to the lateness of the pleas? These discounts are given for pragmatic reasons: because they save the time, expense and uncertainty of a trial. The burden on the administration of justice of terrorist trials currently is very considerable. Guilty pleas, even at a late stage, are to be encouraged. This was a generous discount, but it cannot be said to have had the effect of rendering the final sentence unduly lenient. 20. In these circumstances, although we have granted leave to the Attorney General to make the reference, we shall dismiss the reference and leave the sentencing unchanged.

```yaml citation: '[2008] EWCA Crim 1054' date: '2008-04-22' judges: - MR JUSTICE PITCHFORD - MRS JUSTICE DOBBS - 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} ======

CO/8437/2008 Neutral Citation Number: [2009] EWHC 238 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT Royal Courts of Justice Strand London WC2A 2LL Date: Wednesday, 14 January 2009 B e f o r e : LORD JUSTICE MAURICE KAY MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : L Appellant v DIRECTOR OF PUBLIC PROSECUTIONS Respondent - - - - - - - - - - - - - - - - - - - - - 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 Bloomfield (instructed by Ben Hoare Bell Solicitors, Sunderland SR1 1QH) appeared on behalf of the Claimant Mr Spragg (instructed by the CPS) appeared on behalf of the Defendant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MAURICE KAY: This is an appeal by case stated from a decision of the Sunderland Youth Court made on 27 March 2008. On that occasion the Justices found the appellant guilty of an offence of handling stolen goods. 2. The case stated discloses that the Justices found the following facts: "a. Some time prior to 2.30am on Saturday 3rd February 2008 entry was forced to a garden shed at 89 H Road Sunderland and a pedal cycle belonging to AM's 11-year old son JM was taken. b. At 11am AM, while driving his taxi, saw a male, aged about 17 sitting on a mountain bike outside a second-hand shop in H Road and was almost certain this was the bike taken the previous night. c. AM followed the male in his taxi and saw him on a number of further occasions. He reported his sightings to the police. d. At 11.42 on 4th February PC Dent attended the Burdon Road area of Sunderland where he saw the Appellant pushing a mountain bike which fitted the description provided by AM. He cautioned and arrested the appellant who said, "I've had the bike for ages." Two other males with the appellant were also arrested. e. JM attended Gilbridge Police Station at 16.07 on 4th February and was shown a mountain bike which he identified as his own by various distinguishing marks. f. The Appellant was interviewed at 15.08 on 4th February and 10.29 on 5th February. During interview he exercised his right to silence and was charged at 16.52 on 5th February when he made no reply. g. We found beyond reasonable doubt that the bicycle recovered from the Appellant was the same one as was taken from AM's shed and that the Appellant knew or believed it was stolen. h. The Appellant had significant previous convictions of which we were informed." 3. The trial in the Youth Court took the form of a trial on paper in the sense that none of the prosecution witnesses was required to attend by the defendant's legal representative. All the witness statements were read effectively as agreed evidence. They included the evidence of AM and his reference to being "almost certain" that the bicycle that he saw in the street was the same one that had been stolen earlier that day, the statement of JM, which provided positive identification evidence, in the sense of the bicycle being shown to him being his bicycle, it bearing significant distinguishing features, and the statements of the police officers. 4. One of those officers, PC Dench, was responsible for the arrest of the appellant in the street and the seizure of the bicycle from him at that time. The officer's statement says: "I subsequently seized the bike which I can produce as my exhibit GGD/01." 5. It is important to keep in mind what the unchallenged evidence established beyond all doubt: (1) A blue silver Reebok mountain bike was stolen from the M's shed in the early hours of 3 February. (2) AM saw a person with a bicycle of that description in a number of places around 11 o'clock that morning and called the police. He said that he was "almost certain" that it was the same bicycle. (3) At about 11.45 the police found the appellant pushing the bicycle, which was then seized from him, at which time he said, "I've had the bike for ages". (4) PC Dench effected the seizure. (5) At 16.07 on 4 February, JM positively identified the bicycle shown to him in the police station as the stolen bicycle. 6. A submission of no case to answer was made on behalf of the appellant but it was rejected. 7. The case for the appellant in the Youth Court, and now, is that there was not even a prima facie case established that the bicycle shown to JM was the bicycle seized from the appellant in the street. Although the witness statement of PC Dench ascribed an exhibit number to the seized bicycle, there is no formal evidence of continuity thereafter. The evidence does not specifically disclose which officer showed the identified bicycle to JM, or that it bore an exhibit label. This, submits Mr Bloomfield, who did not appear in the court below, is fatal to the prosecution case. 8. The case for the prosecution is that at the close of the evidence of the prosecution case in the Youth Court it was open to the magistrates to infer that the bicycle shown to JM was the same bicycle that had been seized from the appellant in the street. 9. The purpose of a criminal trial is to acquit the innocent and convict the guilty. It was ever thus, but it is now brought home by the Criminal Procedure Rules 2003 which state the overriding objective in rule 1.1: "(1) The overriding objective of this new code is that criminal cases be dealt with justly. (2) Dealing with a criminal case justly includes- (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly." It is then provided in rule 1.2 that each party in the conduct of the case must: "(a) prepare and conduct the case in accordance with the overriding objective." 10. This emphasis on dealing with both sides fairly, and the requirement that each side in the conduct of its case should act in accordance with the overriding objective, simply confirms that a criminal trial is not a one-sided obstacle race. Of course the prosecution must prove its case if it is to secure a conviction, but there is more than one way in which that may be done. 11. What happened in the present case is that the appellant's advocate below adopted a tactical approach throughout which relied entirely on establishing a doubt that the bicycle identified by JM in the police station was not the same bicycle as had been seized by the appellant in the street. The case stated refers to the submissions made both at the close of the prosecution case and later in the trial, albeit that the appellant had not given evidence. It is apparent that that was the sole issue in the case. 12. It raised the obvious question. If it was not the same bicycle how did it come about that the police were able to show JM his bicycle, which they undoubtedly did and which had undoubtedly been stolen, rather than the seized bicycle. The logical possibilities seem to me to be limited to underhand skulduggery on the part of the police, and/or the Ms, or error built on a coincidence of identical bicycles being in the police station at the same time, including one that had been stolen, but not recovered, in the way that the evidence suggested. 13. If this line of defence was to be pursued, it seems to me that it was incumbent upon the appellant's advocate at trial to require the attendance of the witnesses so that the line of defence could be investigated. In the event, he did not do so, but consented to all the evidence being read no doubt because he thought there might be some tactical benefit accruing therefrom. 14. In my judgment, in the light of the unchallenged evidence, it was open to the magistrates to infer that the bicycle seized from the appellant was the one later identified by JM. The unchallenged evidence gave rise to only fanciful alternative explanations, which could be safely discounted as there was no evidential foundation for them. 15. I acknowledge that the appellant had uttered a spontaneous exculpatory remark at the scene, but that did not require the magistrates to accept the possibility of a fanciful scenario unsupported by evidence, and based entirely upon an invitation to speculate. 16. The first question posed by the case stated for the opinion of this court is: "Whether on the evidence before us we were entitled to find that there was a case to answer?" In my judgment, the answer to that question is plainly in the affirmative. The case stated goes on to pose two further questions which relate to the subsequent stages of the trial, but Mr Bloomfield responsibly accepts that it is the first question that is determinative of this appeal, one way or the other. If there was a case to answer, then the subsequent conviction is not impugnable. If there had not been a case to answer, then the appeal would have had to have been allowed. 17. Accordingly, no purpose will be served by venturing into the fields referred to in the subsequent questions. It is not necessary to engage with debates foreshadowed by those questions and in the skeleton arguments, which related to questions of adverse inference from no comment interviews, or from a failure to give evidence. To my mind it was plainly open to the magistrates to find sufficient evidence without the need to resort to adverse inference from the 'no comment' interviews, and also without regard to the previous convictions, which had been opened, but perhaps not formally proved. 18. In these circumstances, the answer to the first question being as I have indicated, I would dismiss this appeal. 19. MR JUSTICE WYN WILLIAMS: I agree. 20. MR BLOOMFIELD: Can I raise two matters, please? First of all, could I ask for an order that the appellant-- 21. LORD JUSTICE MAURICE KAY: Be anonymised? How old is he now? 22. MR BLOOMFIELD: I think as of 29 September he was 18. He was 17 at the time of the commission of the offence. In the normal course of events it is not a matter that would be within the public domain. 23. LORD JUSTICE MAURICE KAY: Is there not some provision about that? Does he not lose his right on his 18th birthday? 24. MR BLOOMFIELD: I do not think he does. I have looked at Archbold and think it is dealt with. 25. LORD JUSTICE MAURICE KAY: It goes to the date of offence, does it? 26. MR BLOOMFIELD: My understanding is that it does, my Lord. I think your Lordships have to announce it continues otherwise it does not, if that makes sense. It is in the 2009 Archbold on page 362. As I understand it, it is section 49 of the 1933 Children and Young Persons Act. 27. MR JUSTICE WYN WILLIAMS: Could you give me the paragraph number? 28. MR BLOOMFIELD: It is Chapter 4-29. I think it is the first ten lines ending with the words "appeal from any such proceedings". It goes on in the following three or four lines to indicate that your Lordship has to announce it. As I understand it, they apply. 29. LORD JUSTICE MAURICE KAY: Section 39 of the 1933 Act has gone. 30. MR BLOOMFIELD: That applies not just to defendants but to witnesses, and the like. Section 49 is that which attaches to the accused in a trial of a Youth Court. It indicates that by variety of provisions it: " automatically imposes restrictions similar to those contained in section 39(1) ... in relation to proceedings in youth courts and to proceedings under Schedule 7 to the Powers of Criminal Courts (Sentencing) Act 2000 ,.. or on appeal from any such proceedings". Of course we are on appeal from any such proceedings. In my submission the prohibition automatically complies. 31. LORD JUSTICE MAURICE KAY: You are content that that is right, Mr Spragg? 32. MR SPRAGG: I have only just been looking at the point. I take no issue in relation to that. 33. LORD JUSTICE MAURICE KAY: We will make the order, and if anybody thinks we were wrong to do so they will no doubt come and tell us. 34. MR BLOOMFIELD: The second application is for an order of detailed assessment of the appellant's costs? 35. LORD JUSTICE MAURICE KAY: Yes, certainly. Thank you both very much.

```yaml citation: '[2009] EWHC 238 (Admin)' date: '2009-01-14' judges: - LORD JUSTICE MAURICE KAY - MR JUSTICE WYN 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: 200700057 C3 Neutral Citation Number: [2007] EWCA Crim 2157 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 31 July 2007 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE UNDERHILL RECORDER OF HULL (Sitting as a Judge of the Court of Appeal) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID JOHN MONTGOMERY - - - - - - - - - - - - - - - - - - - - - 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 P LEVY appeared on behalf of the Appellant MR G MCKINLEY appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE UNDERHILL: This appeal raises an interesting point about the scope of the common law offence of escape from lawful custody. It was referred to the full court by the Registrar and it is convenient to say at this stage that we grant the application for leave to appeal and extension of time for doing so, notice having been lodged out of time. The appellant is represented by Mr Philip Levy and the Crown by Gregor Mr McKinley. We are grateful to them both for their submissions. 2. The facts giving rise to the appeal can be summarised as follows. 3. On 4th October 2004 the appellant was sentenced to six years' imprisonment for a number of offences, including burglary and other offences of dishonesty. In due course he was transferred to Balantyre House, an open prison in Kent. Rule 9 of the Prison Rules, headed "Temporary Release", by paragraph (1) provides for the Secretary of State to "release temporarily a prisoner to whom this rule applies" in various circumstances specified in paragraph 3 of the Rule. 4. The appellant was granted temporary release under Rule 9. We do not have very much information about the nature of the release arrangement, but apparently he was released each morning to go to some form of employment, being one of the circumstances identified under paragraph 3. We are told in a letter from the governor of the prison that he was "not under any form of supervision", but we were told by counsel that he was obliged to return to the prison at a specified time each evening. 5. On the evening of 2nd April 2006 the appellant did not return to prison at the appointed time. He remained at large until 19th May, when he was observed by chance by a police officer and arrested. He was charged with escape from lawful custody. On the advice of counsel he pleaded guilty, and he was sentenced at Woolwich Crown Court to a term of eight months' imprisonment, to run consecutively to the term which he was already serving. He has since received advice that the admitted facts did not disclose the offence charged. If that advice is correct, the original advice which he received at the time that he entered his plea was wrong and the Crown properly accepts that this would be one of those exceptional cases where the court should entertain an appeal notwithstanding the appellant's plea of guilty. 6. The issue for us is thus simply whether a prisoner on temporary release in the circumstance set out above who fails to return to prison at the expiry of the period of release is guilty of the offence of escape from lawful custody. 7. The ingredients of the offence of escape from lawful custody were authoritatively established by this court in R v Dhillon [2006] 1 Crim App R 15 . That was a case in which the appellant had been arrested by the police as an illegal immigrant and taken to a police station. It appeared that he might have suffered a knee injury, and he was taken the following day by a police officer to the accident and emergency department of the local hospital for an X-ray. Subsequently, a different officer (PC Mitchell) was sent to replace that officer and to wait with the appellant. The appellant was not accompanied into the actual examination room, and following his examination he left the hospital without making contact with his escort. David Steel J, delivering the judgment of this court, conducted a thorough review of the authorities and summarised their effect at paragraph 21 of his judgment in the following terms: "In our judgment, these authorities demonstrate that the prosecution must in a case concerning escape prove four things i) that the defendant was in custody; ii) that the defendant knew that he was in custody (or at least was reckless as to whether he was or not); iii) that the custody was lawful; and iv) that the defendant intentionally escaped from that lawful custody." Unfortunately, the summing-up in that case contained no clear direction on the ingredients of the offence and the appellant's conviction was quashed. At paragraph 27 David Steel J said this: "We are ... concerned that the jury were not in any sense adequately instructed on the issues. Little or no controversy arose from the initial arrest (and the consequent lawful custody) or indeed from the final 'escape' (in the sense of eluding any continuing custody). What was in issue was the question of the continuity of the custody and the appellant's knowledge of it. 28. Although the judge made considerable play of what might be assumed to have happened on PC Mitchell's arrival, the jury's task in assessing continuity was potentially impeded by the absence of any evidence from the police officer who took the appellant to hospital and who was later said to have effected the handover to him (a handover which on any view was relatively informal). There was a live issue as to whether the appellant was still subject to sufficient direct control at the time of his escape two hours later. By the same token, there was an issue as to the appellant's knowledge since his case was that, whilst he saw the first officer leave, he never saw the second officer arrive and could find no substitute." 8. It will be seen that although the summary of the ingredients of the offence provides an invaluable starting point the specific problem which arose in Dhillon was different from the issue in the instant case, which is essentially whether, on the undisputed facts, the appellant is to be regarded as having been "in custody" in the period immediately prior to, or at the moment of, his non-return; in other words, whether the first ingredient identified by David Steel J is present. As to that, there is very little guidance in the cases. With commendable diligence Mr Levy has unearthed and discussed in his advice in support of the appeal a number of authorities in which various issues in relation to the applicability of the offence were dealt with, in particular R v Allan (1841) C & M 295; R v Hinds 41 Crim App R 143; R v Timmis [1976] Crim L R 109, R v Frassati 73 Cr App R 28 ; Nicoll v Catron 81 Crim App R 339; R v Moss and Harte 82 Crim App R 116 and R v Reader [1987] 84 Cr App R 294. He has also referred us to the definition of "escape" set out in the 1795 edition of Hawkins' Pleas of the Crown, namely that the offence is committed "if the party were lawfully in prison for any cause whatsoever, whether criminal or civil, and whether he was actually in the walls of a prison ... or in the custody of someone who had lawfully arrested him." None of these authorities, however, concern the position of a prisoner on temporary release or in any close analogous situation. Nor do they contain any relevant discussion of principle. There are only three cases which it seems to us do offer some assistance, which we will consider in turn. 9. In E v Director of Public Prosecutions [2002] EWHC Admin 433 the appellant was a 14-year-old boy who had been remanded by the youth court into secure local authority accommodation to attend a hearing in four days' time. He was not in fact detained by the local authority because secure accommodation could not be found. He was nevertheless brought to the court on the date to which he had been remanded by a member of the local authority's youth offending team. He left court before his case was called on. He was subsequently rearrested and in due course convicted in the youth court of escape from lawful custody. He appealed on the ground that he had not at the material time been in custody. The Divisional Court dismissed his appeal. Forbes J, delivering the leading judgment, said this, at paragraph 19: "I agree with Mr Spackman's submission that whether a person can be said to be in custody at any particular time is a question of fact to be decided by reference to the circumstances of each individual case. 'Custody' is an ordinary English word, which should be given its ordinary and natural meaning subject, of course, to any special meaning given to it by statute. In the Shorter Oxford English Dictionary the word 'custody' is defined in the following terms, amongst others: 'Confinement, imprisonment, durance'. 20. As it seems to me, for a person to be in custody, his liberty must be subject to such constraint or restriction that he can be said to be confined by another in the sense that the person's immediate freedom of movement is under the direct control of another. Whether that is so in any particular case will depend on the facts of that case." That decision was cited with approval in Dhillon , to which we have already referred, and David Steel J's reference to "sufficient direct control" plainly echoed on the formulation adopted by Forbes J. Forbes J went on to find that, by reason of the remand in secure accommodation, the appellant was properly to be regarded as having been in the custody of the youth offending team from the date of the original remand, notwithstanding the fact that secure accommodation had not in fact been supplied, up to the moment that he was brought to court; and also thereafter because (see paragraph 21) "he remained under the direct lawful control of the youth offending team." Kennedy LJ, delivering a concurring judgment, said at paragraph 27: "I agree that, from the facts as found, we can infer that, at the time when he ran off, the appellant was under restraint, in that he was at court in company with members of the youth offending team, who had the power, as he knew, if necessary, to restrain him. His liberty was thus restricted and he was therefore in custody." 10. In R v Rumble [2003] EWCA Crim 770 the appellant, immediately after being sentenced by the magistrates to a custodial term, simply left the court, which had at that time no usher or security staff present. He was subsequently convicted of escape from lawful custody. On appeal he took the point that since at the moment he walked out no one had yet sought to subject him to any restraint, there being no one in court to do so, he could not be said to have been in custody. This court rejected that submission and held -- following in this regard Director of Public Prosecutions v Richards 88 Cr App R 97 -- that the appellant was in the custody of the court from the moment that he surrendered to his bail, whether or not any officer or member of the court staff had actually sought to constrain his movements. Buxton LJ said that the judgment of Forbes J in E was in no way inconsistent with that proposition. 11. In R (on the application of H) v Director of Public Prosecutions [2003] EWHC Admin 878 the appellant, who was aged 15, was remanded to local authority accommodation without any security requirement. A member of the local authority youth offending team, a Miss Cooter, was at court and he was released into her care. She tried to take him to her office in the court in order to make arrangements for where he was to go next. For some reason she could not get into the office, so she told him to wait outside while she tried to get in by another route. He absconded while she was doing so. Gage LJ held that he was escaping from custody because, as he knew, "his immediate freedom of movement was under the direct control of Miss Cooter", and "he was in [her] charge and could not just make off" (see paragraph 19). 12. Those appear to us to be the only relevant authorities. It seems to us that the definition of "custody" adopted by Forbes J in E is plainly authoritative and helpful. 13. We should however also refer to section 13(2) of the Prison Act 1952, which reads as follows: "A prisoner shall be deemed to be in legal custody while he is confined in or is being taken to or from any prison and while he is working, or is for any other reason, outside the prison in the custody or under the control of an officer of the prison and while he is being taken to any place to which he is required or authorised by or under this Act... to be taken, or is kept in custody in pursuance of any such requirement..." That provision is not formally definitive of the meaning of the word "lawful" for the purpose of the offence of escape from lawful custody. Nevertheless it is a useful pointer to the general understanding of the concept of custody, and it seems to us wholly consistent with the formulation adopted by Mrs Forbes in E . 14. In our view the conception underlying the decision in the cases to which we have referred, and also section 13(2) of the 1952 Act, is that a person may be in custody, notwithstanding that he is not physically confined, provided that he is nevertheless under the direct control of-- that is in the charge of -- a representative of authority. In the cases of E and H that person was the member of the youth offending team. The decision in Rumble is in no way inconsistent with that proposition. The appellant was plainly in the custody of the court, notwithstanding that there was no individual immediately available to give effect to that custody. 15. On that basis, we do not believe that a person who fails to return to prison at the end of a period of temporary release under Rule 9 can be said to have escaped from custody. He is not during his period of temporary release in custody, because not only is he not in prison but he is not under the direct or immediate control of any representative of authority. As we have already noted, the governor of the prison has confirmed in the present case that the appellant was under no form of supervision during his release. It is indeed of the essence of "temporary release" from custody that while it lasts the appellant is not in custody. That is what release involves. Of course it is true that the moment of the alleged escape does not occur during the currency of release but only at the point that it comes to an end and the appellant fails to return to custody from that moment on. He should no doubt have been in custody. But we do not think that it can be said that the reason he is not in custody is that he has "escaped" from it. As a matter of common sense and ordinary language what has happened is not that he has escaped from custody but that he has failed to return to it. 16. It follows that on the accepted facts the appellant did not as a matter of law commit the offence to which he pleaded guilty and that this appeal must be allowed and his conviction quashed. 17. That conclusion would be a cause for concern if there were no other offence committed in such circumstances, apart from any sanction in the Prison Rules applicable to those who wilfully fail to return from temporary release. However, section 1(1) of the Prisoners (Return to Custody) Act 1995 provides that a person who has been temporarily released in pursuance of rules made under the Prisons Act 1982 will be guilty of a summary offence if without reasonable excuse he remains unlawfully at large at any time after the expiry of the period for which he was temporarily released. Mr Levy put the 1995 Act very much at the forefront of his submissions, pointing out that it was plainly enacted on the understanding that there was no other offence appliable to the circumstances in question and with a view to filling that lacuna. He took us to the Parliamentary history (which had various remarkable features, not least that the Act was promoted in the House of Commons and the House of Lords by a team of daughter and father - Lady Olga Maitland and the Earl of Lauderdale). But the fact that Parliament believed there to be a loophole does not necessarily mean that there was. We have thought it right, therefore, to consider the position without reference to the 1995 Act. Nevertheless, we are reassured that our conclusion as to the position at common law does not produce the result that there is no available sanction against prisoners who fail to return from temporary release.

```yaml citation: '[2007] EWCA Crim 2157' date: '2007-07-31' judges: - LORD JUSTICE HUGHES - MR JUSTICE UNDERHILL ```

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 2397 Case No: 201105825 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Southwark Crown Court His Honour Judge Pegden QC T20117498 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/12/2013 Before: LORD JUSTICE TREACY MR JUSTICE ROYCE and MRS JUSTICE ANDREWS - - - - - - - - - - - - - - - - - - - - - Between: Regina - and - Abid Abu Kwaik - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Holland QC (instructed by Registrar of Criminal Appeals ) for the Appellant Mr Duncan Penny (instructed by Crown Prosecution Service ) for the Respondent Hearing date: 10th December 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Treacy: 1. On 27 th September 2011 in the Crown Court at Southwark this appellant was convicted of a count of manslaughter and two counts of unlawful wounding. He was sentenced to a total of 12 years imprisonment with time spent on curfew ordered to count towards sentence. In addition, a forfeiture order was made in relation to his motor car, and he was disqualified from driving for a period of 10 years, and until he passed an extended driving test. 2. He appeals against conviction, limited to two grounds by leave of the Full Court. 3. The facts show that on 8 th November 2009 at 4:45am the deceased, Shenol Ahmet, was driving a Ford Fiesta motorcar from Barnet towards Bushey. Corey Holliday was in the front passenger seat, and Luke Hall in the rear nearside seat. There was a collision between his vehicle and a Honda NSX motorcar being driven by the appellant. As a result both vehicles left the road. 4. Ahmet died of his injuries the following day. Holliday’s injuries were extremely severe; he was rendered incapable of caring for himself. Hall suffered a fractured elbow and wrist, and was detained in hospital for four days. 5. The deceased and his friends drove past a restaurant, The Sahara Lodge, in Stanmore Hill at 4:34am. That restaurant is owned by the appellant’s brother. Holliday and Hall threw a number of eggs at customers sitting outside the restaurant. The appellant had been present when the eggs were thrown, and ran to his high performance Honda sports car which was parked at the rear of the premises. He then chased after the Fiesta. The distance between the restaurant and the collision site was 1.16 miles. The road has a 40 mile per hour speed limit. CCTV at a garage about a mile from the collision site, showed the two vehicles as 31 seconds apart. 6. At some point the appellant’s Honda caught up with the Fiesta. There was contact between the front nearside of the Honda and the rear offside of the Fiesta on a straight stretch of road. The vehicles left the road and went into a wooded area on the offside. The appellant only suffered minor injuries and was released from hospital within a few hours. 7. The Crown’s case was that the appellant had chased Ahmet’s vehicle and, based on the evidence of Luke Hall, had overtaken the Fiesta and carried out a 90 degree handbrake turn, resulting in the Honda being broadside to the Fiesta. The Fiesta managed to get past the Honda, whereupon the appellant resumed his pursuit, caught up with the Fiesta, and deliberately steered his own vehicle so as to collide with the Fiesta. In effect the appellant was using his vehicle as a weapon. 8. Hall’s evidence was that the Honda had nudged the Fiesta on two occasions, remaining in place on the second occasion. This pushed the Fiesta, causing it to change direction. Hall said that the Fiesta had not been driven so as to make contact with the Honda. 9. The appellant denied overtaking the Fiesta and conducting a handbrake turn. He said he had followed the Fiesta in order to take its registration number, as the police had advised after previous egg throwing incidents. He said that the Fiesta had started to weave from the nearside to the offside of the carriageway, and he was conscious of another vehicle following behind him. He thought this vehicle might be acting in concert with the Fiesta so as to box him in. Fearing attack, he decided to overtake the Fiesta. As he did so, the Fiesta had driven from the nearside to its offside, and collided with the Honda. He took his foot off the accelerator and lost control. 10. He denied having lost his temper because of the egg throwing incident, and denied deliberately colliding with the Fiesta or bumping it to get it off the road. 11. The issue for the jury on all three counts was whether or not the appellant had committed an unlawful act of deliberately driving his Honda into the Fiesta in circumstances where the risk of some harm was obvious. The core question was whether the Honda had been used as a weapon. 12. The prosecution and defence adduced expert evidence from well qualified accident and collision investigators. The Crown relied on PC Cousins, a serving officer of much experience. The defence relied on Malcolm Price, again experienced and a former police officer. 13. There appears to have been general agreement between the experts that the collision occurred when the nearside front of the Honda and the offside rear of the Fiesta came into contact. At that point both vehicles were travelling in parallel in the same direction close to the centre of the carriageway. Both vehicles were estimated to have been travelling at between 40 and 50 miles an hour at the time of the collision. After the contact there was a brief period of time when the Honda’s nearside front was against the rear offside of the Fiesta. The greater momentum of the Honda (a heavier vehicle) caused the Fiesta to rotate in a clockwise direction about the Honda’s nearside front. Both vehicles separated and left the carriageway on the offside. About two to three seconds elapsed between impact and leaving the carriageway. 14. There was, however, a fundamental disagreement between the experts. PC Cousins’ opinion was that having considered the various possible causes of the collision, it had been caused by the Honda being steered towards the Fiesta and colliding with it. Mr Price’s opinion was that the available evidence was inconclusive as to whether the collision had been caused by the Honda being steered towards the Fiesta or vice versa. 15. In passing a sentence of 12 years, the judge took account of the fact that an 18 year old youth had lost his life, and that another passenger had suffered such severe brain injury that he required full time care and was unlikely to recover. A third person had also suffered serious injuries. 16. The judge found the following aggravating features: pursuit of the Fiesta in a state of anger, passing the Fiesta at speed and attempting to block it, continued pursuit thereafter, and the application of a prolonged lateral force to the other vehicle at speed using his vehicle was a weapon. The flagrant disregard for the rules of the road had been intended to teach the young men in the Fiesta a lesson. It caused them to lose control of their vehicle. The death and injuries caused were a significant aggravating feature. The judge also took into account the appellant’s claim that the deceased was responsible for what happened. 17. The judge had regard to appellant’s good character, but held that the egg throwing did not mitigate the gravity of the offending. The offender is now 39. He has no previous convictions for motoring matters, or any other matter of relevance recorded against him. 18. Grounds of appeal against conviction are brought with the leave of the Full Court. The Single Judge’s refusal of leave on sentence has led to a renewed application. 19. As to conviction, the grounds, shortly put, are that the opinion of the prosecution expert was inadmissible and should have been held to be such by the judge. The further ground is that there is now fresh evidence available from another expert, Michael Brown, showing that a computer modelling technique, known as MADYMO, demonstrates that it was not possible to reconstruct the collision in accordance with PC Cousins’ opinion so as to recreate the post-impact results as presented to the court. 20. As to sentence, the term of 12 years is said to be manifestly excessive in that the offence involved a sudden and uncharacteristic use of violence. This was not a prolonged course of dangerous driving, but rather the culmination of an incident started by those in the Fiesta. 21. Returning to the conviction appeal, PC Cousins’ opinion, which included taking into account Hall’s evidence, was that the Honda, when beside the Fiesta, matched its speed and then applied prolonged lateral force against its rear offside. At paragraph 7.6.5 of his report he stated: “There is insufficient physical and witness evidence for me to conclude which vehicle made the initial move towards the other without offering my opinion; I have therefore discussed the possibilities.” 22. At 7.6.7 he stated: “It is my opinion that the Honda steered towards the Fiesta. Mr Hall described that after the initial nudge that made the Fiesta judder, it was the continual pushing that caused the Fiesta to rotate sideways.” 23. He then went on to discuss a finding of a rubber deposit consistent with a rotating tyre positioned on the rear offside panel of the Fiesta, above the wheel arch. He said it was likely that it was the front nearside tyre of the Honda that caused this, and that the tyre had lifted off the ground in so doing. This was more likely to have occurred with the Honda steering in towards the Fiesta. The severity of this would be based on the amount of steering applied. The rubber deposit was unlikely to have happened if the Fiesta had steered towards the Honda. 24. At 7.6.10 he stated: “I suggest that the position of these marks shows that both vehicles were effectively travelling at the same speed at the time of contact, rather than one travelling faster than the other – as would have been the case if the Honda was overtaking the Fiesta as suggested by Mr Abu Kwaik. In addition, for the Fiesta to have lost control and rotated around the front of the Honda, a prolonged lateral force would have had to have been applied. Not only does this concur with Mr Hall’s recollection of events, but would tend to suggest a more deliberate act on the part of Mr Abu Kwaik.” 25. Thus it was that PC Cousins gave his opinion that based on all the evidence available to him, the Honda, “having matched speed with the Fiesta, steered towards the Fiesta and applied a prolonged lateral force against it”. 26. The reference to “prolonged force” needs to be understood in its proper context. It means the deliberate and more than fleeting application of force. In duration it would not have lasted more than a second or so. Mr Price, the defence expert, agreed that to cause the mark, a prolonged contact in the sense described would have been necessary. 27. Mr Price, while agreeing that it was likely that one vehicle or another was subjected to lateral movement by its driver, resulting in the collision, stated that although the physical evidence was consistent with PC Cousins’ conclusion, it was in truth consistent with either vehicle moving into the other. 28. Both experts gave their evidence in accordance with their reports and the judge summarised their evidence accordingly. 29. In relation to the first ground, Mr Holland QC submits that PC Cousins gave an opinion which was not based upon matters within his expertise, and so ought not to have been permitted to do so. The reference to “insufficient physical and witness evidence for me to conclude which vehicle made the initial move towards the other,” means that his opinion was not based on an assessment of the physical and witness evidence, and so should not have gone before the jury. 30. Mr Holland underlined the danger of permitting a non-expert opinion given by an expert to be treated by the jury as expert opinion upon which they can rely. A not dissimilar submission had been made to the trial judge. He rejected the submission on the basis that the evidence of PC Cousins as to the presence of the tyre mark above the rear offside wheel arch of the Fiesta provided a basis upon which an expert opinion could be given. 31. Mr Penny supports the judge’s line of reasoning, and points out that in addition there was Hall’s evidence as to the overtaking and handbrake turn manoeuvre, which would permit an inference consistent with PC Cousins’ opinion. So would Hall’s evidence to the effect that it was the Honda which made the manoeuvre immediately preceding the collision with the Fiesta rather than vice versa. He points out that PC Cousins also took this piece of evidence into account in coming to his opinion. 32. Mr Holland placed strong reliance on PC Cousins’ reference to “insufficient physical and witness evidence…”, set out fully at paragraph 21 above. He submitted that that paragraph, which preceded the later paragraphs giving PC Cousins’ opinion, was inconsistent with and invalidated any legitimate basis for an expert to advance an opinion. 33. Moreover, he relies on the fact that the following paragraph, 7.6.6, which contained speculation and trespassed on jury matters, had been excluded by the judge at the start of the trial, yet it must have formed part of the basis upon which PC Cousins had reached his opinion. This latter point can be disregarded since the ensuing paragraph, 7.6.7, begins “I have considered and discounted these scenarios…”. It is clear therefore that the ensuing opinion left those particular matters out of account. 34. As we read PC Cousins’ report, and consistent with the way in which he gave evidence before the jury, he was placing reliance for the purposes of his opinion on the finding of the tyre mark and the evidence which had been given by Mr Hall. Accordingly, there was a basis founded in fact by reference to which it was permissible for PC Cousins to give an opinion in his capacity as an expert. We do not accept the submission that there was nothing upon which he could properly found his opinion. 35. It is nothing to the point that PC Cousins was prepared to accept in cross-examination that the mark might have been left if the Fiesta had moved into the Honda, and the Honda’s reaction was to steer to the left. PC Cousins’ evidence under cross-examination was that the average reaction for a person whose car had been steered into, would be to steer away and to brake. This particular answer is itself criticised as improper. We are not persuaded that it was. Firstly, it was in response to a particular line of cross-examination envisaging a particular scenario, and there does not appear to have been any objection at the time to it. Secondly, the witness is a highly qualified driver and experienced collision investigator, which would provide a basis for him properly to give such an answer. Moreover, we note that no objection had been taken to a similar passage in PC Cousins’ report referred to at paragraph 7.6.10 suggesting that if the Fiesta had steered towards the Honda, the deposit of a tyre mark was unlikely since the appellant would not in those circumstances have steered towards the Fiesta, but away from it. This would cause the nearside to dip and made it less likely to leave the rubber deposit found above the wheel arch. 36. Returning to Mr Holland’s reliance on paragraph 7.6.5 of PC Cousins’ report, we are satisfied that it means that the physical and witness evidence of itself was insufficient to provide a conclusive answer as to which vehicle moved towards the other in the absence of an opinion being given by PC Cousins. This is supported by a joint statement of the two experts created before trial in which they state: “It is not possible to determine from the physical evidence exactly (our italics) which vehicle initiated that contact.” 37. This confirms our view that the paragraph is to be read as showing that the physical and witness evidence could not, without more provide a definitive answer to what had happened. It was in that context that PC Cousins then moved on to give an opinion based on a combination of the tyre mark and the evidence of Mr Hall. 38. Mr Price did not agree with that opinion, considering that there was still insufficient material for a conclusion to be drawn. That does not affect the admissibility of PC Cousins’ opinion. It merely demonstrates the key difference between the experts before the jury. 39. Accordingly, we are not persuaded that this fundamental challenge to the admissibility of PC Cousins’ evidence succeeds, and this ground must fail. 40. The further ground is based on an application to adduce fresh evidence. Section 23(1) of the Criminal Appeal Act 1968 as amended provides that this court may, if it thinks it expedient or necessary in the interests of justice, receive any evidence which was not adduced below. 41. Section 23(2) provides that in considering whether to receive any evidence, the court shall have particular regard to: “(b) Whether it appears to the court that the evidence may afford any ground for allowing the appeal;… (d) Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings…” 42. The appellant seeks leave to adduce the expert opinion of a new expert in accident reconstruction, Michael Brown. He has available to him computerised accident reconstruction techniques not considered by the experts below. 43. We have received his evidence de bene esse, as well as evidence on the same basis from Dr Gary Coley, another acknowledged expert on behalf of the Crown. The thrust of the proposed fresh evidence is that based on the computer modelling, PC Cousins’ opinion as to the use of the Honda as a weapon in deliberately turning into the nearside of the Fiesta, is seriously called into question. The evidence is said to support a finding that the scenario put forward by the prosecution does not match all the vehicle damage noted on the two vehicles, and would not result in the collision occurring as claimed. 44. The results obtained are said to be more consistent with the defence hypothesis that the Fiesta steered into the Honda. This evidence, if admitted, would undermine the credibility of PC Cousins’ evidence, and raise doubts about the safety of the conviction based on the use of the Honda as a weapon. 45. The Crown’s response is that this further work is of limited value. In particular, given the many unknowns and the ranges of variables relating to this collision, Mr Brown’s report does not represent a robust analysis. In particular the computer modelling so far covers about two hundred different simulations, but several thousand would need to be carried out for a typical full stochastic vehicle dynamics analysis. 46. In short, there is a large number of variables relating to braking, steering, speed, overlap and separation of vehicles, and driver inputs which have not at present been explored and whose exploration would affect the outcome and balance of Mr Brown’s report. Another example is the absence of post-impact steering inputs by either driver. The simulations carried out so far do not accurately represent the event or satisfy the essential criteria for an accurate simulation. 47. Such a simulation needs to fulfil the following criteria: (a) damage to the front bumper of the Honda from contact with the rear offside wheel/tyre of the Fiesta; (b) the front of the Fiesta travelling towards the tree it struck on a relatively straight path; and, (c) the contact across the front of the Honda being limited to no more than about one quarter inboard from its nearside. None of the simulations done fulfils all those requirements. 48. The experts have met and produced an agreed statement to the court. They agree that additional modelling work would be necessary fully to investigate all the variables relevant to this case. They agree that no simulation has satisfied the criteria mentioned above. They agree that the simulations failed to account for the position in which the Honda came to rest. Different steering inputs were applied to each vehicle when a more balanced approach was necessary. They agree that the model used to represent PC Cousins’ scenario of a loss of control after prolonged contact between the front nearside of the Honda and rear offside of the Fiesta does not match all of the physical evidence and is based on continued left steering by the Honda after the collision. However, some simulations show that this could be consistent with the damage to the vehicles. They note that the computer simulation of the police scenario is based on Mr Brown’s interpretation of PC Cousins’ evidence. 49. Overall the two experts agree that due to the variables and also in part the limited physical evidence, it is unlikely that further modelling will be able precisely to reconstruct the vehicle movements and driver inputs at the time of the incident. 50. In relation to the tyre mark on the Fiesta, the experts agree that it indicates relatively diagonal movement between the tyre and the bodywork, but such contacts have yet to be included in the computer modelling. If caused by the rotating wheel of the Honda, this would indicate that part of a Honda wheel must have been higher than indicated by the tyre mark. The passenger loading of the Fiesta might affect its height. If the Honda steered left, whilst its nearside bodywork would rise, it is unlikely that the position of any part of the tyre would alter by a large amount because of the operation of the suspension. 51. Those matters relating to the tyre mark emerged for the first time as a result of a meeting between the two new experts very shortly before the appeal hearing. Their meeting took place in relation to the computer modelling, which has been the focus of the fresh evidence ground, but these additional observations have arisen from that meeting, and Mr Holland QC seeks additionally to rely on them. 52. In particular he seeks to rely on their observations that they disagree with PC Cousins as to which part of the tyre caused the mark on the Fiesta and the way in which the mark came to be on the Fiesta. In their view the tyre mark could be the result of the Honda steering into the Fiesta or vice versa or from near-parallel contact between the two vehicles. Mr Brown told us that in his view that although the tyre mark could have been made in the way described at trial by PC Cousins, there were other scenarios which could account for the tyre mark which do not involve the Honda steering into the Fiesta. 53. As far as this somewhat adventitious aspect of the matter is concerned, we note that it has never featured as a ground of appeal until it was referred to in Mr Holland’s skeleton argument delivered the day before the hearing. The whole thrust of his fresh evidence ground hitherto had relied on the computer modelling. The question of the means by which the tyre mark or marks were caused to the Fiesta was fully investigated at trial. 54. Both PC Cousins and Mr Price gave evidence. Mr Price accepted that PC Cousins’ opinion was a possible explanation for the way in which the mark had been caused, although he suggested that that manoeuvre would have led to the Honda continuing across the road towards the nearside instead of the offside. It is to be noted that the evidence of Mr Brown and Dr Coley on this topic is not to the effect that PC Cousins’ opinion could not be correct. Their evidence was that his view was one of three possible scenarios. Their evidence in reality simply represents further opinion on an issue which was fully and properly considered by experts at trial in an area where knowledge and science was as readily available as it is now. 55. Given the need for evidence to be deployed at trial, and given the nature of what Mr Brown and Dr Coley have to say on the topic, we do not consider that it is necessary or expedient in the interests of justice to receive their evidence on this aspect of the matter. 56. Mr Holland himself appeared to acknowledge that our approach to the tyre mark material might well be different from that relating to the computer modelling. 57. Before we come to the effect of the tendered evidence, we will examine Section 23(2) (d). The statute and case law make plain that it is essential that a defendant in a criminal case advances his whole defence and any evidence upon which he relies before the trial jury. Where such evidence has not been advanced until the appellate stage, the court will be astute to investigate whether there is a reasonable explanation for the failure to call at first instance the evidence now relied on. 58. It seems to be common ground that neither of the two well qualified experts at trial was aware of the MADYMO computer modelling technique used by Mr Brown. There does not appear to be any dispute that the system is capable of providing simulations assisting in the analysis of collisions of the sort which occurred in this case. It appears, however, that this is only the second case in which such simulations have been used. The only other instance was in a pre-trial investigation occurring shortly after this trial. 59. Whilst there is material put forward by Dr Coley showing that this particular system was available and had been used well prior to 2011 (and had been referred to in at least one professional journal), we are prepared to accept, having considered materials tendered to us, that neither the experts below, nor the legal advisers for the appellant were aware of this computer modelling system. The material presented to us in this respect has been somewhat belated and sparse, but it has not been significantly challenged by the Crown and we are prepared to proceed on the basis that there is a reasonable explanation for the failure to call this evidence at trial, namely that its use for these purposes was not then reasonably capable of being ascertained. This may be somewhat generous to the appellant given that fresh legal advisers have had recourse to such evidence for the purposes of this appeal. 60. We turn then to the factor at Section 23(2) (b) (that the evidence may afford a ground for allowing the appeal). Our conclusion is that the evidence tendered is simply not clear or firm enough. Mr Brown frankly concedes that the simulations done provide indications favourable to the appellant’s case, but no more. The work which has been done is but a small fraction of that which could be done. The simulations so far used and some of the important underlying inputs into such simulations have rather been concentrated in favour of the theory that the Fiesta drove into the Honda. 61. Although financial constraints have prevented fuller modelling, it is unlikely that further work would provide an accurate outcome. All that it might do is provide better understanding. Although the initial work done by the modelling may provide some evidence favouring the theory that it was the Fiesta that moved towards the Honda rather than vice versa, it has not in our judgment reached anything like the state of robustness necessary for it significantly to undermine the case put forward by the Crown. It seemed to us that Dr Coley was right in emphasising how much more work would need to have been done, (but without any certainty of outcome), and in his suggestion that Mr Brown had somewhat over-emphasised the significance to be drawn from the work done to date. We therefore conclude that Section 23(2) (b) cannot be satisfied by the fresh evidence tendered. 62. We recognise that the ultimate question as to the reception of fresh evidence is whether the interests of justice require us to do so, whatever our conclusions under Section 23(2) . However, given our assessment of the computer modelling evidence above, we are clear that we should not receive this material as fresh evidence. 63. It follows therefore that this appeal against conviction must fail. 64. As to sentence, we are conscious that this is a case of manslaughter rather than a case of causing death by dangerous driving. We note, however, that the most serious level of sentencing in the Sentencing Guidelines Council’s guideline for causing death by dangerous driving has a starting point of 8 years custody with a range of 7 to 14 years for a person of good character convicted after a trial. Such cases would cover those involving a flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others. 65. The judge’s finding that the high-powered Honda had been used as a weapon against the occupants of the Fiesta clearly falls into that category. Those guidelines recognise that the starting point is to be increased where serious injury has been caused to one or more victims in addition to the death, and that a false claim that one of the victims was responsible operates as further aggravation. Mr Holland criticised this latter feature of the guidelines, submitting that they were a consequence of contesting the trial for which the appellant should lose potential mitigation, but for which he should not positively be penalised. Even if we were to leave this aspect of the matter out of account as an aggravating factor, the harm suffered by the survivors, with one victim suffering catastrophic injuries, represents very significant aggravation. 66. Moreover, a conviction for manslaughter allied with the two Section 20 offences will clearly fall at a higher level still in the sentencing spectrum. Since the guideline was published, the decision in Attorney General’s References Nos 60, 62 and 63 of 2009 [2010] 2 Cr App R (S) 46 and later decisions have emphasised that special attention must be paid to the consequences of the offence of manslaughter and to give the fact of death resulting even greater weight than hitherto. 67. In a case where a vehicle was used as a weapon of revenge to strike another vehicle at significant speed with the obvious serious risk that the victims’ vehicle would run out of control, a severe sentence was required. In this case the aggressive nature of the driving was demonstrated by the overtaking, followed by the handbrake turn, which the judge was satisfied had taken place. Notwithstanding that dangerous manoeuvre, the appellant then proceeded to execute an even more dangerous one in his anger. 68. That the source of his anger was the behaviour of the occupants of the Fiesta, does not in our judgment serve to mitigate this offence. The appellant had ample time to control his anger, both as he made his way to his car, then on the journey catching up with the Fiesta, and again after the handbrake turn. Each of those actions gave the opportunity to reflect and reconsider. The appellant’s ultimate actions were out of all proportion to the insult offered by the egg throwing incident. 69. The only available mitigation to this appellant who had contested his guilt, lay in his previous good character. In accordance with well established principle, the graver the offence, the less weight this factor can carry. This offence, with the allied offences, speaks for itself. In the circumstances, although the sentence imposed was a firm one, it cannot be said to have been manifestly excessive. 70. Accordingly, in our judgment this renewed application against sentence must fail.

```yaml citation: '[2013] EWCA Crim 2397' date: '2013-12-19' judges: - LORD JUSTICE TREACY - MRS JUSTICE ANDREWS ```

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 917 Case No: 201000757 D5 / 201000648 D5 / 201000824 D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 18 March 2011 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE MACKAY MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - R E G I N A v HASHIB APABHAI ESA APABHAI ADAM AMANI - - - - - - - - - - - - - - - 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 C BLAXLAND QC appeared on behalf of Hashib Apabhai MR G PAYNE appeared on behalf of Esa Apabhai MR N VALIOS QC appeared on behalf of Amani MR M PARROY QC and MR J WADDINGTON appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE ELIAS: On 7 and 8 January 2010, in the Crown Court at Southwark before HHJ Higgins, the appellants were unanimously convicted of conspiracy to cheat the Public Revenue on Count 1 and they were sentenced as follows: Hashib Apabhai - total sentence 7 years 6-months; Esa Apabhai - 6 years' imprisonment; Adam Amani - 7 years 6-months' imprisonment. In each case time spent in custody was to count towards sentence. 2. Hashib Apabhai now appeals against his conviction by leave of the single judge, and both Esa Apabhai and Adam Amani appeal against their sentence. The background to the appeals 3. The background to these appeals is as follows. The appellant Hashib Apabhai was, as we have said, jointly indicted with Adam Amani and his son, Esa. Two others were acquitted of the money laundering conspiracy and it is not necessary to say anything more about their case. In total some 15 defendants were alleged to have participated in a large VAT Missing Trader Intra Community (MTIC) fraud. It was thought that a single trial of all defendants would be too complex and difficult to handle, so different defendants were tried at different times. This was the third trial. 4. The conspiracy was investigated by Customs and was described as Operation Euripus. It is really a classic carousel fraud. 5. The indictments spanned a period from 1 May 2001 to 31 July 2003, but the focus was on the latter period. The case was prosecuted by selecting 529 deal chains and investigating those. The loss to the Revenue amounted to some £11.6 million. 6. By the conclusion of the evidence, the prosecution accepted that the Operation Euripus fraud had come about following a disruption by Customs of an earlier MTIC fraud, known as Operation Degree. This had culminated in a number of arrests being made on 18 January 2001. Amongst those arrested was Javed Mohammed and Amin Zimbada, although none was ultimately charged with any offence in relation to that particular investigation. Javed Mohammed was alleged to be the principal organiser of the Euripus fraud and it was said that he had recruited others for the purpose of continuing the fraud following his arrest in Operation Degree. He in fact evaded arrest when charges were finally brought in 2007. 7. The case against Hashib Apabhai was that, along with Amani and his son Esa, he was involved in operating five European companies which were used to export mobile telephones to United Kingdom traders. They then sold on the phones, charging VAT to Customs but, in some cases, failing to account for the VAT to the Revenue. Four of these companies were Spanish and one was Dutch. The proceeds of the fraud were laundered through various accounts in Hong Kong and the United Arab Emirates. 8. The defendants did not deny that there had been a fraud, what they denied was that they personally were involved in any unlawful activity. 9. Adam Amani was the director of each of these five companies. He had formally been called Muhammed Novsarka, but he changed his name in November 2001. His original name, however, did feature in many of the documents that were adduced in evidence. When he was arrested in July 2003 he said that at that stage that he had become involved in these companies after a chance meeting at the Trocadero in London with a man called Imran Sheik. He said Sheik had persuaded him to take over the directorship of these companies because he was in difficulty and was unable in law to own the company. This man Sheik was never identified and is thought not to exist. Amani said that he was to be paid between £500 and £1,000 a week. He said he travelled to Spain with Sheik on a number of occasions. Although Amani set up the companies, he did not in fact control the bank accounts and he had no idea that there was a fraud going on. 10. At that initial stage he said that he thought that Hashib Apabhai was a lawyer. He had travelled with him to Spain on a couple of occasions and helped him do paperwork in relation to the companies. He had also gone with Esa Apabhai, who was his cousin. 11. The prosecution case was that Hashib Apabhai was controlling both Amani and his son Esa in the operation of the fraud. Various more specific allegations were made with respect to him. It was said that he had used the name Appleton or Appleby, the English equivalent of Apabhai, to effect introductions for Amani at the London branches of two European banks, specifically for the purpose of opening accounts for fraudulent companies; that he had arranged for a payment of £280,000, which originally come from Javed Mohammed, to be paid into the Main Guy bank account in July 2001. The purpose of that was to carry out an unlawful transaction - although he said he did not appreciate it was unlawful - to transfer this money to a man of straw who could, if necessary, provide surety for Javed Mohammed in the event that he was granted bail. He had accompanied Amani and Esa to Hong Kong in July 2002 and, whilst they were there, various payment instructions in relation to the operation of the fraud were made from one of the hotel rooms where they were staying, and indeed a substantial quantity of the money obtained by this fraud was laundered through Hong Kong banks into accounts in the names of, amongst others, Javed Mohammed. He accompanied Amani to Cyprus to set up an account at the Federal Bank of the Middle East for International Commodity Brokers. This was in the name of a company which he had set up and of which his son was a director. He had personally received sums in excess of £300,000 from the bank accounts of the fraudulent companies. When it was found that the £280,000 allocated as a potential surety was not required, it was transferred into one of the companies under the control of this appellant. 12. Various files recovered from the memory of his computer at his office and his home address indicated that on a number of occasions various documents had been used to create fraudulent transactions. The prosecution case was that he was responsible for these letters; that they bore the characteristics of his somewhat florid style. Other identification marks such as a capital Y and capital S for "yours sincerely" further confirmed that, whatever name was used on the letter, it was in fact this appellant who was behind these documents. It is pertinent to note that he denied being involved in sending any of these letters and, by inference, he was necessarily saying that it must have been either Amani or his son who were responsible for sending them. 13. The appellant claimed, when interviewed, that he had been a successful businessman during the 1990s but had encountered financial difficulties following the acrimonious break up of his marriage in 1997. He set up a business as a consultant representative under the name of King's Chambers, working from his home. He said he had been approached initially by an old friend, Ebrahim Sodha, who advised Amine Zimbada and, thereafter, he had been assisting Javed Mohammed, firstly in the preparation of his case, and then in relation to other business activities. He said Amani had become a client of King's Chambers when he wanted help with business arrangements for companies with which he had been involved. He acted as a representative for these persons. There was evidence that he had represented himself as being a barrister in some quarters, although he did not have any legal qualifications. 14. He did accept that he had made certain appointments with various banks to put Amani in touch with officials in those banks, and also he had put Amani in touch with certain company formation agents. He thought that Amani had gone into business trading in electronic goods. He did not know that there was any fraud involved. 15. When further interviewed on 15 June 2004, he submitted a prepared statement but did not answer questions. He said that there was a file in his office of his home address, which was described as the Novsarka file, which identified the various transactions he carried on on behalf of Amani and would have proved his innocence. He said that the police had taken the file away and, I think at various stages he said either they had deliberately lost it or they had negligently lost it, and that it was making it very difficult for him to prove his innocence. 16. In his defence statement, although he did not expressly blame Amani, he had asserted that, since the arrest in July 2003, Amani had set up a number of different companies with Esa Apabhai and he contended that there was a close business relationship between the two. 17. Circumstances giving rise to grounds of appeal. 18. We turn to the circumstances which gave rise to the grounds of appeal. Before the cross-examination of Amani on the appellant's behalf, an application was made under section 101(1)(e) of the Criminal Justice Act 2003 to cross-examine him about certain of his previous criminal convictions. No notice had been served in advance, because the direct attack from Amani upon his character was mounted for the first time during the trial, although, as we have said, it was certainly clear that this must have been a distinct possibility. Amani had old convictions for offences of dishonesty, and convictions in 1986 for two counts of arson which had resulted in a sentence of 4 years' imprisonment. 19. The judge accepted that "it would be difficult to imagine evidence more damaging to Mr Apabhai than that which was advanced by Mr Amani" and therefore he accepted that the gateway for admissibility of the dishonesty convictions had been met. In fact, the convictions were relatively old and, we were told today by Mr Blaxland QC, counsel for the appellant, that they were not put in before the jury. There were other drugs offences which it was not said ought to be put before the jury. As to the arson offences, the judge said that he did not have sufficient details to determine whether or not the jury ought to be made aware of those convictions. The prosecution undertook to seek to search the records and further information about them. They drew a blank and they were left with no information about these offences. 20. Accordingly, the judge ruled on the point as follows: "The difficulty arises in respect of the offences of arson. They are also old, going back to 1986 and, because of that, the Crown have been unable to provide the court with any evidence of the circumstances of the offences, including Mr Amani's pleas. To that extent, therefore, the court is faced with an evidential void. In this regard Mr Amani, perhaps understandably, declines to comment and, whilst, through his counsel, Mr Apabhai says, by way of hearsay -- I know not how many times removed -- that it relates to an insurance claim, I regard as axiomatic the caution with which the court would have to approach the comments of any party in circumstances such as these. Furthermore, I do not think that the evidence currently before the court in relation to the trial itself could properly form the foundation for relevant inferences to be drawn based upon reliable circumstantial evidence. At best, it would be speculation, in which the court may not indulge. Thus, the evidential void remains. In those circumstances, I do not he see how the court could ever properly come to the conclusion that the convictions for arson had substantial probative value and therefore fall within section 101(1)(e) . The wording of section 101 is such that those convictions therefore become inadmissible." 21. In the course of cross-examining Mr Apabhai, Mr Amani indicated that the appellant had caused him to lose a significant sum of money, apparently a sum of some £125,000, when Amani had remortgaged his house and transferred the money, it was said, to the appellant. Amani commented that his life was wrecked because of what happened with Apabhai. He also said that: "Up to last week he was still telling me what to say; don't say nothing." Mr Blaxland, in view of this answer, wished to ask questions about an incident that had occurred on 23 August 2009, that is a month before the trial began. The gist of the incident can be summarised from the following statement, which is part of a larger statement which was made by the appellant to the police on 25 August: "The allegation made by him was that, on 23 August, at one of the mosques in Coventry, Mr Amani approached my client and said 'Customs have offered me a deal, seeing them in nine days. See you outside'. Matters then adjourned to the car park outside and Mr Amani, according to Mr Apabhai, then said 'Customs have offered me a deal. I am meeting them in nine days time. They want me to change all my statements and pin everything on you. You have got seven days to pay me £125,000 cash. Remember, your son is in my hand.'" Then Mr Apabhai, in his statement, says he effectively rebuffed the advance and Mr Amani finished by saying: "Seven days, remember, or I go further". That was the incident which caused Mr Apabhai to go to the police. It is not suggested that the alleged deal with Customs actually took place. 22. Mr Blaxland contended before the judge that this was not evidence of bad character as defined in the Criminal Justice Act 2003 and that, therefore, it was necessarily admissible without the leave of the court since it was relevant evidence. It was not necessary that it should pass through any of the gateways for the admission of bad character in the 2003 Act . The judge ruled at that stage: "I am not persuaded (a) it falls within section 98, nor (b) without further submission that it falls properly within any of the relevant provisions to the Criminal Justice Act". Cross-examination then continued without reference to the incident. 23. It is not entirely clear why it would not be admissible if it fell outside both those categories but, in any event, that was not a matter that was explored at that time with the judge and, no doubt, everybody wanted to get on with the trial. But the matter was revisited the following day in argument. This time Mr Blaxland successfully persuaded the judge that the evidence of blackmail did indeed fall within the provisions of section 98(b) but the judge went on to hold that, either exercising the court's statutory power to exclude evidence under section 78 of PACE, or by reason of a common law principle, he would not admit the evidence. He considered that its probative value was outweighed by its prejudicial effect and, furthermore, it raised the prospect of satellite issues in which the question of whether this had actually occurred, as alleged, would have to be investigated. The precise words used by the judge were these: "Moreover, I am in no doubt but that those powers, under section 78 or otherwise, should be exercised in favour of Mr Amani. If I may use the common law expression, the prejudicial effect far outweighs the probative values, it seems to me. The police were investigating but no charges had been brought and, as it were, were sufficient under the day. This also avoids the great difficulties associated with satellite litigation and the distraction of the jury from the matters in hand which, I may add, do not depend exclusively or mainly on the evidence of Mr Amani". 24. The matter was then raised for a third time when the appellant gave evidence. The gist of it was that he played no part in the operation of any lawful activity; that Javed Mohammed and Adam Amani were his clients and that he provided them with assistance. He sought to explain the various trips to Hong Kong and the payment of the £280,000, which he had not appreciated involved any unlawful activity. The trips he thought were for legitimate reasons; the trip to Hong Kong was because Mr Amani wanted to investigate the possibility of trading in fabrics. He also raised the question of the missing Novsarka file. It was put to him that he was saying to Mr Amani, even shortly before the trial, words to the effect "don't worry, I will take care of you, just rely on missing Novsarka file". 25. Mr Blaxland, at that point, raised the question of the blackmail incident again, because he wanted his client to be in a position to be able to say that there would have been no discussion of that kind between the appellants and Mr Amani very closely before the trial. By then, he had made a complaint about Mr Amani to the police over the blackmail incident, so they were not on good speaking terms. So the judge did revisit the matter but he came to the same conclusion. The grounds of appeal. 26. The grounds of appeal are directed towards the rulings of the judge in relation to the blackmail evidence and in relation to the refusal to allow the arson convictions to go before the jury. 27. The blackmail incident 28. The first ground is that the judge was wrong to refuse to allow counsel for Mr Apabhai to question Amani about the blackmail incident. The first issue arising here is whether, as the judge found, section 98(b) is engaged at all. The prosecution contend that it was not and that if the evidence was to be admitted at all it had to be pursuant to section 101(1)(e) of the Criminal Justice Act 2003. Section 98 is in the following terms: "References in this chapter to evidence of a person's bad character are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence". The 2003 Act does not provide that evidence falling within sections 98(a) and (b) is automatically rendered admissible simply as a result of falling within those provisions. Whether it is admissible depends on the common law rules. Section 99 abolishes the common law rules governing the admissibility of evidence of bad character but, by section 112, bad character is to be construed in accordance with section 98. The effect, therefore, is that common law rules are only abolished in circumstances where the evidence which it is sought to adduce is bad character as defined by section 98. Accordingly, if the evidence relied on falls within either section 98(a) or (b) then the common law rules are not abolished and continue to operate. Evidence falling within section 98(b) is therefore admissible if it would be admitted at common law. 29. It is common ground that, since there was evidence in this case which one accused wished to adduce with respect to a co-accused, the judge was wrong to say that he had any discretion to exclude the material, provided at least that it was relevant. There is no such discretion under section 78 of PACE, because that applies only to evidence on which the prosecution proposes to rely. Nor is there any other residual common law principle which would allow the judge to refuse to admit the evidence. This has been confirmed in a number of authorities including the decision of the House of Lords in R v Randall [2003] UKHL 69 where Lord Steyn, giving a speech with which the remainder of their Lordships concurred, said: 30. “… the discretionary power to exclude relevant evidence which is tendered by the prosecution, if its prejudicial effect outweighs its probative value, does not apply to the position as between co-accused. In a joint criminal trial a judge has no discretionary power at the request of one accused to exclude relevant evidence tending to support the defence of another accused: see R v Miller , supra, at 171; R v Neale (1977) 65 Cr App R 304 , at 306; Lobban v The Queen, supra, at 887B-889D. In R v Rafiq [2005] EWCA Crim 1423 para. 17 where Scott Baker LJ, giving the judgment of this Court, observed that evidence would be relevant in cut throat cases where “…it tends to show that the defendant's version of the facts is more probable than that put forward by a co-accused.” If the evidence does not fall within section 98(b) then it may well be admissible under section 101(1)(e) of the Criminal Justice Act 2003 , which provides as follows: "In criminal proceedings, evidence of a defendant's bad character is admissible if, but only if ...(e) it has substantial probative value in relation to an important matter in issue between the defendant and co-defendant". Provided it has substantial probative value in relation to an important matter in issue, the judge has no residual discretion to exclude it: see R v Edwards and Rowlands [2006] 2 Cr App R 4 , para. 26 per Scott Baker LJ. 31. Section 104 further defines what may be a matter in issue between the defendant and the co-defendant, and it will include whether the defendant has a propensity to be untruthful, provided certain conditions are met, which they were in this case. In practice if the bad character evidence would be relevant and admissible if it fell under section 98(b)- and it is almost bound to be relevant if it falls within that provision - then it is highly likely to be admissible under gateway (e) if it is properly characterised as bad character evidence falling outside section 98(b). However, we heard argument about which provision was applicable here, and we shall deal with it. Did section 98(b) apply? 32. The prosecution say that the evidence falls outside section 98(b) and that it should appropriately have been treated as bad character evidence falling within section 101(1)(e) . They contend that the purpose of section 98(b) is to deal with cases where there is misconduct by the prosecuting authorities and not by a witness or a defendant. In particular, Mr Parroy QC, counsel for the Crown, put emphasis on the fact that it is only misconduct in connection with the investigation or prosecution of the offence. He submitted that those words “in connection with” plainly included conduct by the authorities, such as where it is alleged that the police have fabricated evidence, but were not appropriate to describe the kind of allegation relied on in this case. 33. He relies on the decision of this court in the case of Scott [2009] EWCA Crim 2457 . In that case the defendant was convicted of rape. He sought to adduce evidence that the complainant had harassed a witness who was giving evidence on his behalf in an effort to get her to support the prosecution case. The evidence was that the complainant had made attempts to talk to that witness on more than one occasion so that, as the witness put it, she could "hear the complainant's side of the story". The defendant submitted that the evidence fell within the scope of section 98, either (a) or (b), and therefore could be admitted without the leave the court. The judge disagreed. He held that the evidence was bad character evidence relating to a non-defendant which did constitute evidence in relation to an issue in proceedings, but that it ought not to be admitted because it did not have substantial probative value. The Court of Appeal agreed with the judge on this particular point. At paragraph 38 Aikens LJ, giving the judgment of the court (Aikens LJ, Penry Davey J and Sharpe J DBE) said this, after referring to the particular allegations and concluding that they did not fall within section 98(a): "We have concluded that they are also not evidence of misconduct in connection with the investigation or prosecution of the offences of which the appellant was charged, and so not within section 98(b). We accept of course that the events to which Miss Haydon Smith's statement refers all occurred during the time when the investigation and the prosecution of the offences was taking place, but that temporal connection is, in our view, not enough to come within the wording of section 98(b). The misconduct has to have some closer link with the actual investigation of the offences, or with their actual prosecution. On the facts set out in the statement, there is no such connection. Therefore, the admission of the evidence ... is governed by the statutory regime of the 2003 Act ". 34. Mr Parroy emphasises the fact that the court there focused on the "actual investigation” and the “actual prosecution". He submits, in essence, that the alleged misconduct here did not fall into that category; it was too remote. 35. Mr Blaxland submits that this is too narrow a construction of the section and was not warranted by the statutory language. He submits that the purpose of the bad character provisions in the 2003 Act is to deal with evidence of bad character which is collateral to the facts and circumstances of the case; it is not to deal with evidence which is inextricably linked to the facts and circumstances of the case or the processes leading to a verdict. Here, the alleged blackmail incident was linked with the prosecution of the offence since it was a threat to give false evidence unless the payment was made. It was also relevant for a number of reasons. First, the fact that the appellant made a complaint to the police in relation to the alleged misconduct provided an obvious motive for why Amani would want to place the blame for any criminal activities on the appellant; second, it went to the likelihood that the appellant would have been assuring Amani right up to trial that matters would be satisfactorily sorted out; third, it suggests that the appellant and Amani were not jointly involved in any criminal enterprise, since it would be very unlikely that, in such circumstances, the employee would complain to the police about a co-accused. That would be unnecessarily to goad Amani. The case of Scott did not assist, because the evidence being relied upon in that case was bad character evidence as a collateral matter. It was not linked in any significant way to the factual matrix of the case or the circumstances of the prosecution. 36. In our view the judge was entitled to find that the evidence did fall within the scope of section 98(b). It can be said that the evidence is “connected with” the prosecution or investigation of the offence. Scott did not say that only conduct by the prosecuting authorities could fall within the provision, and we do not think that the section should be so construed. There is no doubt that, prior to the 2003 Act , evidence of intimidation or blackmail by a co-accused would be admitted, notwithstanding that it might reveal bad character of, and perhaps criminal conduct by, that defendant. The evidence in this case was not sought to be admitted specifically because it was evidence of bad character, raising in a general way issues of credibility or propensity, but because in the particular context surrounding the alleged misconduct, and in particular the fact that the appellant then went to the police to complain about the conduct, it casts light in a more immediate way on particular aspects of the case as being presented to the jury and, in particular, the reliability of the evidence of Mr Amani. The fact that the evidence demonstrates bad character is not the central feature justifying its admission. Its principal purpose is to demonstrate a motive for Amani putting the appellant in the frame, and the fact that the evidence also demonstrates bad character is incidental. For example, there may be a case where a co-defendant is alleged to bear a grudge because of some slight, real or imagined, from the defendant and this is said to explain why he is lying about the defendant. Such evidence would surely be admissible even though it does not disclose bad character by the co-defendant. It would be strange if the effect of the 2003 Act , which was intended to allow evidence of bad character to be admitted more readily than had formerly been the case, was to restrict the admissibility of bad character in these circumstances unless it was able to pass through gateway (e). 37. Mr Blaxland also trailed an argument for the first time in this court that the evidence, in any event, fell within section 98(a). Suffice it to say that we are not persuaded by that submission but we did not hear full argument about it, and since we considered that it fell within the terms of subsection (b) it is not necessary to reach a concluded view about it. Did gateway (e) apply? 38. However, even if we are wrong about the evidence being capable of falling within section 98(b), then the question arises whether it falls within the terms of section 101(e) . Mr Parroy submits that it will not. It was not evidence as such at all. All the appellant was doing was making an assertion of bad character. Mr Parroy relied on the case of Hussein [2008] EWCA Crim 1117 , and in particular paragraph 13 of the judgment of Hughes LJ, to the effect that a mere charge, unproved, could not be evidence of bad character, still less could it be bad character itself. 39. We accept that a mere assertion cannot be evidence of bad character, but we agree with Mr Blaxland that that is not the situation here. Mr Apabhai is not simply asserting; he also indicated, at least by inference, that he was willing to give evidence about this particular incident. Indeed, he said there were witnesses to the incident. Whether they might have been called or not had this evidence been allowed to be adduced, we are not in a position to say. R v Tirnaveanu [2007] EWCA Crim 1239 supports Mr Blaxland’s submission. Thomas LJ, giving the judgment of the court, said this at paragraph 19: 40. "There may initially have been some doubt as to whether an allegation of misconduct, untested by a judicial finding, is in the provisions. But it is clear from decisions in this court in R v Fish [2005] EWCA Crim 813 , [2006] 1 Crim App R 3 paragraphs 71 to 77, R v Weir [2005] EWCA Crim 2066 , [2006] 1 Crim App R 19 at paragraph 94, R v Edwards and Rowland [2006] EWCA Crim 3244 , [2006] 2 Crim App R 4 at paragraphs 77 to 81, and R v Lesley [2006] EWCA Crim 2150 at paragraph 51, evidence that alleges the commission of an offence or other reprehensible behaviour is within the scope and definition of misconduct. It seems to us that that is the position here.” 41. Mr Parroy also submits that in any event even if it constitutes evidence it was not substantially probative. He submitted that the judge was entitled to take the view that in the context of the evidence as a whole, it did not take matters very much further and that, as a mere assertion, it did not prove anything. But since we have rejected the submission that it was a pure assertion that, in our view, undermines his submission that it is not of substantial probative value. 42. We agree with the observations of this court in the case of Scott at paragraph 45 that, in this context, "the word substantial must mean that the evidence concerned has something more than trivial probative value". In our judgment, if the appellant had been able to convince the jury that this incident had taken place, then we think it would have been of more than trivial probative value. One might test it by asking what would be the position if it were the only way in which the appellant might be able to show some motive for Mr Amani telling lies. It seems to us that it would plainly, in those circumstances, be of substantial probative value. 43. Accordingly, even if the evidence did fall under section 101(1)(e) rather than section 98(b)as the judge held, we are still satisfied that it ought to have been admitted. 44. We do have sympathy with the judge's observation that there is a danger that allowing evidence of this kind will give rise to satellite litigation and distract the jury and take their eye off the ball. But it seems to us that, as the rules currently operate, this is not a basis for excluding evidence of bad character when relied on by one accused against another, however desirable it may be to have a rule of that nature. 45. Is the verdict unsafe. 46. That leaves the issue whether the verdict is unsafe. Mr Blaxland reminds us that, in circumstances like this, where there is a procedural error, a failure to admit evidence of this kind, we must be satisfied that there has been no injustice done to this appellant before we can properly uphold the conviction, and we must of course assess that by looking at the case as a whole. 47. We are satisfied in this case that the verdict is safe. The principal significance of this evidence was that it provided a motive why Amani might want to frame the appellant, but it is patently clear that he had obvious motives quite independently of this. As the judge observed, there were essentially cut-throat defences from a relatively early stage. In fairness, Mr Blaxland effectively admitted that once the parties had accepted that there had been a fraud, and once it was shown that the documents emanating from the hard drive of the appellant's disk at his home address involved the communication of various documents involved in the fraud, and once he was denying any involvement himself in these matters, he was essentially, and necessarily, saying that it had to be both or one of his son and Amani. He may not have said that in terms, but that was the gist of his case. 48. He had been asserting that the Novsarka file would provide him with a full defence to these charges, because they would demonstrate that his involvement with Mr Amani was an innocent involvement. He was contending that from the beginning and we accept the observations of Mr Parroy that it was essentially a lynch-pin of his case. The jury would have recognised that there was every reason why Amani would want to lay the blame on the appellant. There was an additional reason, again as Mr Blaxland frankly admitted, which was to the effect that, even before the incident relied upon, it was plain that Mr Amani had been extremely upset by the loss of £125,000 in relation to the mortgage and was laying the blame for that at the door of Mr Apabhai. That, again, was something which could well have caused him to wish to misrepresent the true facts and to try and pass the blame from himself to the appellant. All these matters the jury would have had very firmly in mind. We simply do not accept that this additional reason, which in fact is in any event very closely linked to the loss of the mortgage money, would have added any significant additional motive. 49. Mr Blaxland says that the change of story by Amani at the trial wholly altered the dynamics of the case, and that this was the obvious explanation for that. It was far more important, he says, than any of the other motives. But the desire of Amani to save his own skin is the obvious and most powerful motive, and that had been there for some considerable time. 50. Mr Blaxland also submits that it is inconsistent with the appellant being involved in any conspiracy that he would go to the police in this way. He would not want to alienate Amani. But that is not so if he already anticipated that Amani may well wish to give evidence against him, because they were effectively running horses that could not run in harness. 51. Accordingly we do not accept that there is any significance, in the sense of any real prejudice to this defendant, as a result of this evidence not being admitted. 52. We should add, but we will not go into the evidence in detail, that we are satisfied that, even if one looks at the substantive evidence, and even accepting the important point which Mr Blaxland properly and forcefully makes that it was circumstantial, nevertheless the circumstantial evidence demonstrating the guilt of the appellant was extremely strong. We are not going to rehearse it all again; he is going on these trips to countries where various monies were laundered; the incriminating documents found on his hard drive; his involvement in the creation of these companies; his involvement with Mr Muhammed; his unlawful involvement with the £280,000. He of course had explanations for each one of these which was entirely consistent with the prosecution case that he was at great pains to distance himself from anything that might be able to be tracked back to him. 53. However, this is a supporting rather than the central basis on which we find that this conviction is in any event safe. It is, as we say, because we do not think that the evidence which would have been adduced would have, in any material way, altered the way in which the jury would assess the evidence before them. But it is an additional consideration that the evidence seems to us to have been, in truth, overwhelming at the end of the day. The arson convictions. 54. We deal only briefly with the second ground concerning the refusal by the judge to permit the evidence of the arson offences to be adduced before the jury. Mr Blaxland did not, for very good reason in our view, pursue this with any great enthusiasm. His case is that it is a reasonable inference that, because a 4 year sentence is imposed for arson, then the likelihood is that it was either an act of retribution or, alternatively, it supported the hearsay evidence, however many times removed, that Amani had been involved in an attempt to commit an insurance fraud. The judge, quite rightly in our view, was not prepared to admit the evidence on that basis. It would have been wrong for him to do so. Mr Blaxland accepted that without the inference he was seeking as to the circumstances of these convictions, they were not admissible. They were a long time ago and did not go to credit and nor, absent the inference, were they relevant to propensity. We would add that even if they had been relevant to propensity, helping to demonstrate that Amani was somebody who would involve himself in fraudulent activities, it is difficult to see how that would have assisted the appellant's case, since the prosecution were submitting that they were both deeply involved in this conspiracy. It does not greatly assist the appellant to show that Amani had a propensity to be involved. 55. The appellant is saying that the judge ought to have been willing to speculate as to the circumstances of the offence, and to find that they were committed in the way prejudicial to the defendant in the absence of any evidence to that effect, and to allow the jury to take into consideration that speculative evidence. Plainly he should not have done that and he did not do that. That ground of appeal fails also. 56. Sentence. 57. We turn to the question of sentence. The judge, in passing sentence, recognised that he had to have regard to sentences in other related trials. He indicated that the principal features which would determine sentence would be the particular defendant's position within the criminal hierarchy, his criminal profit, if known, and the loss to the Revenue, and he would have regard to personal mitigation. He then said this: "The determination of the part which each of you played must therefore depend upon the balance of the evidence in the application thereto of common sense. Approached in this way, it is plain to me that all three of you were far more than mere functionaries and that the actual names on the documents had little or no significance in this regard. Who did what at any given moment would have been a matter of experience, convenience, or even occasionally caprice. Quite simply, you were all in it together and you played your due part in both organising and executing the fraud. What you actually did from day to day and from time to time was merely dictated by the needs of the moment. The precise way in which originally you were recruited and by whom the initiative was taken matters not, because it is very clear that once you were involved, which would be by the beginning of 2001 at the latest, you performed whatever task was necessary, whether or not individually you were more or less cautious in what you did and how you did it". He then said this, specifically with respect to Esa Apabhai: "As to you, Esa Apabhai, much the same is true, save for this. You were relatively young at the time, so 21 years old, and you were conspiring with men with 20 years your senior, one of whom was described as a father figure and the other of whom was your actual father. A worse example for them both to set it is difficult to imagine". He noted that the Amani had had a criminal record, but he lacked detailed information and it was some time ago so he did not take that into account against him. He noted the good characters of the other two defendants and he gave a 17 per cent reduction because of the delay between the end of the conspiracy and the date of trial. That is how he arrived at the sentences he did. 58. We have heard submissions from counsel for Mr Amani, Mr Valios QC, and for Mr Esa Apabhai, Mr Payne. We take Mr Amani first. Mr Valios makes a powerful submission, essentially along the following lines. He has demonstrated, no doubt perfectly accurately, that the prosecution when opening this case were placing Amani lower in the hierarchy than the appellant Hashib Apabhai, and they were suggesting that effectively the two younger men were acting at all times under his influence and control and that he was dictating matters. In the circumstances, he submits that it was wrong for the judge to take a different view of the particular role of these individuals on the basis of his assessment. 59. We can quite see why an individual defendant may be disappointed if he finds the judge takes a different view from the prosecuting counsel in circumstances which are to his detriment, but we do not accept that the judge was precluded from doing that. The judge must form his own view of the facts, even if that differs from the prosecution, as a wealth of authorities confirm. We cite by way of example some observations of this Court in the recent case, Castillo [2010] EWCA Crim 658 , where, after referring to certain passages from the judgment of Beldam J in Soloman and Triumph [1984] 6 Crim App R (S) 120 and Cloud [2001] 2 Crim App R (S) 97. Griffith Williams J, giving the judgment of the court, (which included the Lord Chief Justice and Collins J) said this at paragraph 22: "The trial judge is not bound to accept the view of the prosecution, just as he is not bound to accept the view of the defence. In criminal trials it is not unusual for the culpability of a defendant to be markedly different in the light of all the evidence. In some cases that works to the positive advantage of a defendant. In other case it does not. As a matter of public policy, when it comes to sentencing, the public duty of the judge is to pass the appropriate sentence, that is a sentence which reflects the culpability of the offending. When it comes to the assessment of a defendant's culpability, the trial judge is best placed to make the necessary findings of fact. Absent evidence that he or she has misdirected himself or herself, and/or reached a conclusion of fact which was unreasonable, this court will not interfere". 60. It is not submitted that the conclusion was unreasonable for any reason other than that it does not follow the analysis of prosecuting counsel. We recognise that it was not merely in prosecuting counsel's opening, but also in his closing submissions that he was placing responsibility for the conspiracy more fully on the appellant Hashib Apabhai. Nonetheless, this was a case where the trial had taken place over 3-months, and it was tried by a very experienced judge who, it has to be said, produced a model summing up, and was in the best position to assess not only the relative sentences that should be given with respect to these three defendants, but also how they fitted into the wider conspiracy which he was trying. 61. Mr Valios put his submissions attractively and succinctly but, for the reasons we have given, we reject them and we are not prepared to interfere with that sentence. 62. The submission on behalf of Mr Esa Apabhai was, in part, to the same effect and, for the reasons we have given, we reject that aspect of the appeal. But his appeal also focused on certain further matters. The focus was placed on the observations of the judge, which we have read out, to the effect that this appellant was effectively led by his father and Amani, who he treated as father figures. The submission is that that is plainly correct but that the judge did not reflect that factor sufficiently in reducing the sentence by only 20 per cent. Furthermore, certain personal factors were urged, namely age - although, as we have indicated, that was a factor the judge took into account - and the fact that this appellant had an appalling childhood and was very much under the sway of his father. Again, the submission was put succinctly and attractively, but we do not accede to it. It is no doubt true that other judges may have allowed a little more for the difference in age and the influence that the father may have had over the son. But the question of appropriate differentials in cases of this kind is often a difficult one for a trial judge and we have made the point that this trial judge was best placed to deal with it. In so far as this submission has any force at all, it is, it seems to us, whether sufficient allowance was made for his age. Again, we accept that other judges may have made the differential greater, but we have concluded that we cannot say that the judge was manifestly wrong not to reflect the age difference by a lower sentence for this appellant. We see little of weight in the other submissions. 63. We have also borne in mind that counsel referred us to some of the sentences in the related trials but, in truth, we can get very little benefit from those, because we are simply not in a position to know what the particular circumstances were of the comparators on whom he is relying. 64. Accordingly, those appeals fail. 65. Can I thank everyone and apologise it is so late. 66. MR VALIOS: My Lord, can I raise one matter. I feel I am in somewhat of a invidious position in a sense, because legal aid was granted for junior counsel only. He could not be here today and I was going to do this appeal on a pro bono basis in anticipation that he would be here. He is not, but I settled the grounds and advice. Now, I am somewhat concerned in that situation as to what I do in relation to any claim for the costs thereof. That is why I say I feel I am in a rather embarrassing and invidious position in raising this matter with your Lordships, but I know of no other way of dealing with this. 67. LORD JUSTICE ELIAS: You mean legal aid was granted for junior counsel and junior counsel is not going to require the legal aid because he is not here and has not done anything? 68. MR VALIOS: I think that is right. 69. LORD JUSTICE ELIAS: Well, I would have thought it was appropriate that you should be given -- I fear it probably has to be legal aid of junior counsel's fees. 70. MR VALIOS: I suspect it would be. 71. LORD JUSTICE ELIAS: I do not think we can properly do more than that, but it seems to me that is an appropriate thing to do. You properly raise it and we are willing to grant legal aid to this counsel in substitution for the junior counsel who could not be here. 72. MR VALIOS: My Lord, I am grateful. 73. LORD JUSTICE ELIAS: Thank you very much indeed.

```yaml citation: '[2011] EWCA Crim 917' date: '2011-03-18' judges: - LORD JUSTICE ELIAS - MR JUSTICE MACKAY - 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} ======

Case No: 2005/01956/C4, 2005/03314/C1, 2005 /02337/C3, 2005/02524/D2, 2005/01877/C2 and 2005/01975/C2 Neutral Citation Number: [2005] EWCA Crim 2866 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Strand, London, WC2A 2LL Friday, 11 November 2005 Before : LORD JUSTICE KENNEDY MR JUSTICE BELL and MRS JUSTICE DOBBS - - - - - - - - - - - - - - - - - - - - - Between : R - v - Antony Albert Weir, Ramanathan Somanathan, Stephen Yaxley-Lennon, Simon Manister, Hong Qiang He and De Qun He - - - - - - - - - - - - - - - - - - - - - Mr S. James for the appellant Weir Mr R.Vardon for the Crown in Weir Mr R. Kovalevsky and Mr P. Mylaganam for Somanathan Miss G. Etherton for the Crown in Somanathan Mr A.R.H. Urquart for Yaxley-Lennon Mr N. Lobbenberg for the Crown in Yaxley-Lennon Mr F. Chamberlain for Manister Mrs A. Vigars for the Crown in Manister Mr D. Kapur for Hong Qiang He Mr A. Dalgleish for De Qun He Mr L. Mabley for the Crown in He & He - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown copyright© Lord Justice Kennedy: Introduction 1. We heard these five appeals consecutively on 20 th and 21 st September 2005. They were listed together because they raised points in relation to the Bad Character provisions of the Criminal Justice Act 2003 which have not previously been considered by the Court of Appeal, but the points raised are different in each case. There is no overlap. We therefore deal with the appeals separately in judgments to which all three members of the court have contributed, but it is convenient to begin by setting out those parts of the Act which are relevant in relation to one or more of the appeals. 2. The 2003 Act 98 Bad character “References in this Chapter to evidence of a person’s ‘bad character’ are to evidence of, or of a disposition towards, misconduct on his part, other then evidence which – a) has to do with the alleged facts of the offence with which the defendant is charged, or b) is evidence of misconduct in connection with the investigation or prosecution of that offence. 99 Abolition of common law rules (1) the common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished. (2) …… 100 Non-defendant’s bad character (1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if – (a) it is important explanatory evidence, (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,…. ……………………….. 101 Defendant’s bad character (1) In criminal proceedings evidence of the defendant’s bad character is admissible if, and only if – (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) it is evidence to correct a false impression given by the defendant, or (g) the defendant has made an attack on another person’s character (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. 102 “Important explanatory evidence” For the purposes of section 101(1) evidence is important explanatory evidence if – (a)without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b)its value for understanding the case as a whole is substantial. 103 “Matter is issue between the defendant and the prosecution” (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; (b)the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect. (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. (4) For the purposes of subsection (2) – (a)two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms; (b)two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State. 104 “Evidence to correct a false impression. (5) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression. 110 Court’s duty to give reasons for rulings (1) Where the court makes a relevant ruling – (a) it must state in open court (but in the absence of the jury, if there is one) its reasons for the ruling; (b) If it is a magistrates’ court, it must cause the ruling and the reasons for it to be entered in the register of the court’s proceedings. (2) In this section “relevant ruling” means – (a) a ruling on whether an item of evidence is evidence of a person’s bad character; (b) a ruling on whether an item of such evidence is admissible under section 100 or 101 (including a ruling on an application under section 101(3); (c) a ruling under section 107. 112 Interpretation of Chapter 1 (1) In this Chapter “misconduct” means the commission of an offence or other reprehensible behaviour; Anthony Albert Weir. 3. On 21 st March 2005 in the Crown Court at Manchester this 44 year old appellant was convicted of sexual assault by touching a girl under the age of 13, contrary to section 7 of the Sexual Offences Act 2003 . He was subsequently sentenced to an extended sentence, the custodial element of which was 15 months imprisonment. As the sentence was in excess of 30 months he is required to comply with the notification provisions of Part 2 of the Act for an indefinite period, not, as stated by the Judge when sentencing, for ten years, but that is not a matter with which have been concerned when considering his appeal. 4. The alleged victim J was a ten year old girl living in the same street as the appellant, who lived with his partner and her children C and T. J and C were friends, and sometimes J slept at C’s home. J said that when she did so on Saturday 4 th July 2004 the appellant assaulted her by touching her vagina over her night clothes. According to J he had exposed himself to her on four or five previous occasions, and on Sunday 5 th July he told her that he used to pay girls £5 to watch him masturbate, and asked her if she wanted to watch. She refused, but on that Sunday when he took the children swimming he peeped into the cubicle when she was naked, and then forced three pounds into her hand. J complained to her mother on the following Sunday, and the police were then informed. When interviewed the appellant denied that anything improper took place. He had not exposed himself to the girl, and on Saturday 4 th July his partner was away but his friend Dean Allen was with him, and he had only gone into the children’s bedroom to check that all was well. On the Sunday when he took the children swimming he had said nothing about masturbation. He had not spied on J, and although he did give her some money it was only to purchase food from the café. His case in relation to the Saturday evening was supported by Dean Allen, who detected no abnormality. 5. On 16 th February 2005, at a plea and directions hearing, the prosecution applied to adduce evidence that on 9 th August 2000 the appellant was cautioned for taking an indecent photograph of a child, contrary to section 1 of the Protection of Children Act 1978 . The application was granted, and it is that decision which is challenged in this appeal. It is common ground that the relevant statutory provisions are those to be found in the sections 101(1)(d), 103(1)(a), 103(2)(b) and 103(4(b) of the Criminal Justice Act 2003 . 6. On 15 th December 2004 the Secretary of State exercised his powers under section 103(4) (b) by making the Criminal Justice Act 2003 (Categories of Offences) Order 2004 which came into force at the same time as sections 98 to 110 of the 2003 Act . Paragraph 2 of the Order provides - (1) The categories of offences set out in Parts 1 and 2 of the Schedule to this Order are hereby prescribed for the purposes of section 103(4) (b) of the 2003 Act . (2) Two offences are of the same category as each other if they are included in the same Part of the Schedule. Part 1 of the Schedule sets out offences in the theft category. Part 2 is headed “Sexual Offences (Persons under the age of 16) Category”. It includes the section 7 offence with which the appellant was charged before the Crown Court, but contains no reference to the offence in respect of which he had received a caution. 7. Mr James, for the appellant, therefore submits that as the offence in respect of which the caution was administered was not, for the purposes of section 103(2) (b) an offence of the same category as the one with which he was charged the evidence of the caution should not have been admitted. The Order, Mr James submits, is plainly selective. It does not include every possible offence, and unless categorisation is determinative of admissibility (where, as in this case, offences are not of the same description and thus within the ambit of section 103(2) (a)) then what is the point of categorisation? That was an argument which appealed to Mitting J at Preston Crown Court in the unreported case of O’Neil 22 nd February 2005, but that was a case in which no relevant categorisation Order had been made by the Secretary of State, and it is not clear whether the attention of the judge was drawn to paragraphs 131 to 132 of the paper prepared by Professor John Spencer QC for the Judicial Studies Board. As Professor Spencer points out, and as we accept, it is necessary to look carefully at the opening words of section 103(2) . They show that a defendant’s propensity to commit offences of the kind with which he is charged can be proved in ways other than by evidence that he has been convicted of an offence of the same description or an offence of the same category. Unless that approach is adopted no proper weight is given to the use of the word “may” followed by the words in brackets, and the conclusion makes good sense because it allows for the admission of, for example, the fact that the defendant has previously asked to have taken into consideration offences of the kind with which he is now charged, despite the fact that an offence taken into consideration, like a caution, is not a conviction (see Nicholson [1947] 2 All E R 535). 8. Of course if the evidence sought to be adduced is evidence of convictions satisfying the requirements of paragraph (a) or (b) then the task of deciding admissibility is made easier, so the categorisation process does have an effect, and that seems to us to answer the question which Mr James posed. 9. For those reasons, although we do not agree with the trial judge that “an offence contrary to section 1 of the 1978 Act can properly be regarded (for the purposes of section 103(2) (b) of the Criminal Justice Act 2003 ) as being within the same category as an offence contrary to section 7 of the 2003 (Sexual Offences) Act” we do agree with the alternative line of reasoning adopted by the judge, and reflected in this judgment. That renders it unnecessary for us to consider the alternative submission put forward by Mr Vardon for the respondent that the evidence of the caution would in any event be admissible pursuant to section 101(1)(g) because the defendant had in effect attacked the character of the complainant. The appeal against conviction therefore fails, and is dismissed. Romanathan Somanathan 10. On 20 th January 2005 in the Crown Court at Croydon this 42 year old appellant was convicted of two offences of rape, and he was subsequently sentenced to nine years imprisonment. In his notice of appeal he seeks an extension of time of approximately four months in which to seek leave to appeal against conviction, and his applications for an extension of time and leave to appeal against conviction were referred to this court by the registrar. During the course of the hearing we granted the necessary extension of time (the delay was attributable to the time required to obtain transcripts) and we granted leave to appeal. We turn now to outline the case. Outline of the allegations and the Trial. 11. Wendy Anenden is now 30 years of age. She came to England from Mauritius in 1996 and married, but her marriage broke down and in 2002 she was buying a new flat. At that time she started to attend the Hindu Temple at Thornton Heath where the appellant was the main priest or Aya. It was the prosecution case that after several conversations, on the telephone and at the Temple, the appellant visited her flat on 11 th July 2002 to conduct a poojah (or blessing), and that whilst there he raped her. Thereafter he continued to contact her and she continued to attend the Temple. He visited her flat again in September 2002, ostensibly to give her a gift he had obtained on a religious trip to the Himalayas, and it was the prosecution case that he then raped her for a second time. She became pregnant, she said by him, and an abortion was performed on 26 th November 2002. She said that she made efforts to approach people at the Temple about the appellant, but the community appeared closed to her, and it was not until November 2003 that she complained to the police. 12. The appellant was then interviewed on 11 th March 2004 and denied any offending. He said that he did visit the complainant’s home in July 2002 to conduct a poojah, but there was no impropriety, and in September 2002 he never even went to her home. He also denied having had any previous problems, in particular when he worked at Tooting. The false allegations made against him were, he said, attributable to members of the Mauritian community who wanted to give his Temple a bad name. In his Defence Case Statement served on 16 th August 2004 the appellant relied on his answers given during the course of his interview under caution, and added that the complainant “is not a witness of truth and has some ulterior motive in making and indeed pursuing this complaint.” 13. At the start of the trial on 11 th January 2005 Ms G. Etherton for the prosecution applied to call three witnesses as evidence of bad character, pursuant to Chapter 1 of Part II of the Criminal Justice Act 2003 . Those witnesses were Indira Mungur, Vidula Amoorden and Seevaratnam Nagendram. The first two were young women who said that at a vulnerable time in their lives they were subjected to sexually charged approaches made by the appellant similar to those which the complainant would say were made to her. The other two women were not visited by the appellant at home because proposed visits were abandoned when he discovered that they would not be alone, and in neither case was there any allegation of rape. Mr Seevaratnam was the founder and chairman of the Board of Trustees of the Temple at Tooting, and he was able to give evidence as to the appellant’s behaviour when employed there, and as to the reasons why his employment was brought to an end. 14. The application to call the three witnesses was resisted by Mr Squirrel, who was then appearing for the appellant, and the main argument put forward was that the relevant provisions of the 2003 Act did not apply to this trial because the investigation and the initial criminal proceedings took place before the relevant provisions came into force. As a result of a subsequent decision of this court it is now clear, and before us it has been common ground, that the defence argument was misconceived, and the judge was right to reject it. During the course of his submissions Mr Squirrel was asked by the judge whether if the new Act applied he could argue against the inclusion of evidence of bad character, and he replied “well, it is going to be difficult, I concede that”. A little later, at page 11F of the transcript, counsel expressly conceded that the applications fell within section 101(1) (f) and (g) of the 2003 Act , but invited the judge to make use of his power to exclude under section 101(3) of the 2003 Act , and possibly also under section 78 of the Police and Criminal Evidence Act 1984 . 15. Having regard to the way in which the application was advanced it is not surprising that the judge, after deciding that the 2003 Act did apply, was succinct in dealing with the requirements of that Act . He found that the application was properly made under section 101(1) (f) and (g) if not under (d) as well and continued - “I have thought hard about my discretionary power under subsection 3 to exclude the evidence, but do not do so. Much of this proposed evidence would have been admissible under the old law in any event.” The trial then began, and on the following day, 12 th January 2005, Miss Etherton sought a ruling that the statement of Vidula Amoorden should be read pursuant to section 23 of the Criminal Justice Act 1988 . Evidence was called as to the circumstances under which her statement was obtained, and as to the steps taken to secure her attendance at court. They were conceded to have been appropriate steps, but it was nevertheless submitted, principally by reference to section 26 of the 1988 Act , that the statement should not be read because the evidence was important and could not be challenged. As to that the judge said - “There is no doubt that this witness is an important and significant one. She gives evidence of similar fact to the extent of the grooming process that this defendant allegedly employed to wear down the resistance of those that he targeted. However, in my judgment, Mr Squirrel falls into error in saying that the evidence cannot be challenged. The defendant has challenged her account in interview, and, moreover, the defence is as able to controvert the evidence in the statement as ever it was …. And I have come to the conclusion that, having thought about the matter carefully, that the statement ought to be read in the interests of justice, and so doing will not cause an unfairness within the meaning of this section or section 78 of the Police and Criminal Evidence Act, and consequently I allow Miss Etherton’s application.” 16. The jury then heard the rest of the evidence of the complainant and they heard evidence from two witnesses to whom she complained in June or July and in November 2002. They also heard from Indira Mungur and the statement of Vidula Amoorden was read. They heard from Mr Seevaratnam (of Tooting Temple) and they heard from Professor Lipner, professor of Hinduism at Cambridge University, who was able to set in context much of what had been said by others. Most of what the Professor said was not contentious, but at page 8B of the transcript of the Professor’s evidence he was asked - “Q. If one were a Tamil woman living in England making an allegation of rape by a priest, help us, please, how difficult a thing that would be to do given the community background and the person making the allegation and against who it is made? A. Mind-boggling - that would be a mind-boggling thing to do. For a woman to make an allegation of rape or something like that against her priest, given the ethnic circumstances involved, would require - its an extraordinary act and would require a tremendous amount of impulse of one sort or another, either courage or whatever, but it is certainly a very unusual thing to happen.” The prosecution case concluded with evidence in relation to the interview with the appellant on 11 th March 2004, and there were also schedules in relation to telephone contacts between the complainant and the appellant. 17. The appellant gave evidence on his own behalf, but the defence which he advanced was not as foreshadowed in his interviews and in his Defence Case Statement. He said that he fell out with Mr Seevaratnam at Tooting because Mr Seevaratnam was running the Temple as a business. He thought Mr Seevaratnam was worried that the appellant was too popular, and he added that by the end he was unhappy and “my contract was not renewed by agreement”. As to the complainant he gave details of his dealings with her, maintaining that she attempted to seduce him, and said - “Mrs Anenden has lied because she was obsessed with me and I rejected her – three times she tried to get me and failed. I accept I didn’t mention this in interview; only afterwards did I learn about things.” Referring to Indira Mungur and Vidula Amoorden as well as the complainant the appellant said - “All three women have collaborated and told lies about me.” At this stage it is unnecessary for us to refer to the summing-up. We will deal with specific criticisms made in relation to it later in this judgment. Issues on Appeal. 18. Having set the scene we can now summarise the issues raised in this appeal. They are as follows - (1) That the judge was wrong to admit the bad character evidence (i.e. the evidence of Indira Mungur, Vidula Amoorden and Seevaratnam Nagendram) because none of it was admissible under section 101 (d)(f) or (g) of the 2003 Act . (2) That the judge gave inadequate reasons for admitting the evidence, a point only taken during the course of submissions to us. (3) That the judge’s directions to the jury in relation to bad character evidence were inadequate. (4) That the evidence of Professor Lipner as to the likelihood of a woman making an allegation against a Hindu priest was inadmissible and prejudicial. (5) That the judge should not have permitted the statement of Vidula Amoorden to be read, and failed to give adequate directions in relation to it, and - (6) That each of the convictions is thus rendered unsafe.” For the purposes of this appeal it was common ground that the convictions stand or fall together. Relevant Legislation. 19. In this appeal the following sections of the 2003 Act are relevant, and the relevant parts of those sections are to be found set out in our introduction to all five appeals - Section 99(1) Section 101(1) (d), (f) and (g) Section 101(3) Section 103(1) (a) and (b) Section 105(6) Section 110 It will also be necessary to refer in due course to sections 23 to 26 of the Criminal Justice Act 1988 , and to section 78 of the Police and Criminal Evidence Act 1984 . Chronology. 20. For certain purposes it is important in this case to bear in mind the sequence of events as disclosed by the evidence, so we summarise the chronology. 21. In 1998 the appellant ceased to work at Tooting Temple after being there for two years, and moved to Hendon. In November 2001 he left Hendon to open his own Temple at Thornton Heath. 22. In about June 2002 the appellant was consulted by the complainant. She says that he went to her home to perform a poojah on 11 th July 2002 and that was when the first rape took place. The complainant had intended her friend Primeela to be present for the poojah but she was unable to attend. However, according to the complainant, very soon after the rape she spoke to Primeela and to another friend Evelyn Chin-Hom Lap about what had occurred, and Evelyn Lap gave evidence of that conversation at the trial. She said that in about June or July 2002 she was at Manchester University when telephoned by the complainant in distress. She said that her priest had come to her house, didn’t want to leave, and had bolted the door. He had pinned her to the floor and she struggled. She couldn’t fight him off. He said they should be together. She said no several times, but afterwards she felt weak and dirty. She said he forced her, she didn’t want to, and Evelyn Lap understood she meant something sexual. 23. In August/September 2002 the appellant was in India with his family and, according to the complainant, it was in September 2002, soon after his return, that he visited her home with a gift and raped her for the second time. She then became pregnant and consulted a Marie Stopes Clinic with a view to an abortion. She told Danusia Bourden, a nurse at the clinic, that the putative father was the priest at the Temple, and Danusia Bourden gave evidence to that effect. The abortion on 26 th November 2002 was preceded by a scan on 22 nd November 2002, which showed the foetus to be just over seven weeks old, indicating that conception took place early in October. 24. In about February or March 2003 Vidula Amoorden was planning a fast, and consulted the appellant. According to her sexual approaches then began which she initially terminated by threatening to tell his wife what he was doing. He then, in about March 2003, offered to do prayers at her house and she agreed because she wanted the house blessed. When he telephoned to say he was on his way she said that her brother was with her and looking forward to meeting him. The appellant then cancelled his visit, saying that he was getting late for the Temple. Later he rang to say that she must be alone for the blessing, which Vidula Amoorden did not accept, pointing out that her father was a priest. According to her the appellant then became offensive, and she terminated the conversation and changed her telephone number. 25. It was at about the same time, in March 2003, that Indira Mungur, who is the sister-in-law of Vidula Amoorden, consulted the appellant, and according to her suggestive conduct of which she complained continued until July 2003. 26. Meanwhile the complainant was still in contact with the appellant and taking part in ceremonies at the Temple. In April 2003 she says that she went to Windsor with her son to visit Legoland, and stayed in a family room at an hotel. According to the appellant she asked him to perform a poojah at Windsor, and provided him with a railway ticket. When he got there she took him to her hotel bedroom where she made advances to him, which he rejected, and he then left. The complainant accepted that under pressure she told the appellant of her proposed visit to the hotel and was scared that he might follow her, but he did not do so. 27. On 6 th May 2003 the complainant paid £150 to the appellant for a poojah. She was about to have an operation and, according to her, wanted a poojah in another Temple with people around, but the appellant found out and insisted that he would do it. 28. In July 2003 the appellant was to perform a service at the home of Indira Mungur, who arranged for her sister-in-law Vidula Amoorden to be present, although the appellant had told her that she should not have any family member present. About two hours before the proposed service, at a time when the appellant knew that Vidula Amoorden was to be present, the appellant telephoned to cancel the service, saying, according to Indira Mungur, that he had to have an eye operation. When she saw him a couple of days later there was no sign of any operation, and he said that his eyes had recovered. According to the appellant he did not cancel services at the homes of either Vidula Amoorden or Indira Mungur when he knew that they would not be alone, nor did he say anything to Indira Mungur about an eye operation. He was due to meet a priest from India, and simply told her that he had another appointment. 29. The appellant stated that on 11 th September 2003, after a summer visit to India, he took a gift to the complainant at her home which she rejected. That, he said, was disrespectful, and although she subsequently visited the Temple he ignored her because she had been disrespectful. 30. The appellant asserted that in October 2003 he finally rejected the complainant, and the last recorded telephone call between them was in that month. 31. In November 2003 the complainant went to the police. They then obtained statements from the complainant, Vidula Amoorden and Indira Mungur, whose name was given to the police by Vidula Amoorden, and, as we have already said, on 11 th March 2004 the appellant was interviewed by the police. Issue 1 – Admissibility of bad character evidence. 32. We turn now to the first of the issues which arise in this appeal, reminding ourselves that at the outset in the court below it was accepted that the criteria set out in section 101(1) (d) (f) and (g) were satisfied. Had that not been the case no doubt a distinction would have been drawn between the evidence of Indira Mungur and Vidula Amoorden on the one hand and the evidence of Seevaratnam Nagendram on the other. His evidence would also have been divided into two parts - the first relating to the reasons for the appellant’s departure from Tooting, and the second relating to what the witness saw or heard relating to the appellant’s behaviour whilst at Tooting. 33. Mr Kovalevsky QC, for the appellant, submitted to us that none of the bad character evidence (i.e. none of the evidence of Indira Mungur, Vidula Amoorden or Seevaratnam Nagendram) should have been admitted under section 101(1) (d) because none of it was relevant to any important matter in issue between the defendant and the prosecution. As Miss Etherton, for the respondent, pointed out, section 101(1) (d) does have to be read in the light of section 103(1) , which makes it clear that for the purposes of section 101(1) (d) matters in issue include a propensity to commit offences of the kind charged, and a propensity to be untruthful. 34. Mr Kovalevsky submitted, correctly, that the sole issue was whether the complainant’s account was true, and he went on to submit, again correctly, that before the implementation of the 2003 Act the evidence of Indira Mungur and Vidula Amoorden, if not that of Sevarartnam Nagendram, would only have been admitted if it satisfied the requirements of similar fact evidence, as set out in DPP v P [1991] 2 AC 447 . Mr Kovalevsky then submitted, contentiously, that the coming into force of the 2003 Act has not significantly altered the test for admissibility of similar fact evidence. In support of that proposition he relied upon certain passages from the speech of Lord Phillips in O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038 , and upon the reference made to those passages in R v Edwards and others [2005] EWCA Crim 1813 . 35. As Mr Kovalevsky recognised, O’Brien was not a criminal case, and we remind ourselves that section 99(1) of the 2003 Act expressly provides that - “The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished” (our emphasis). At paragraph 12 of his speech in O’Brien Lord Phillips said - “Where a defendant to a criminal charge has a criminal record, his propensity to commit crime will normally have some relevance to the question of whether he committed the offence with which he is charged. As a general rule such evidence has nonetheless been held to be inadmissible on the ground that its prejudicial effect is likely to outweigh its probative value. Exceptions have, however, been made to this general exclusion. The nature and extent of those exceptions have proved a frequent preoccupation of the appellate courts and, on at least four occasions, of your Lordships’ House. They are now to be found codified in sections 101 to 106 of the Criminal Justice Act 2003 , which were brought into effect in December last year.” We consider that passage, which is not an essential part of the reasoning in O’Brien , to be capable of being misunderstood. The 2003 Act completely reverses the pre-existing general rule. Evidence of bad character is now admissible if it satisfies certain criteria (see section 101(1) ), and the approach is no longer one of inadmissibility subject to exceptions (see also the Explanatory Notes to the Act Paragraph 358 and the observations of Professor Sir John Spencer QC in his paper for the Judicial Studies Board at paragraphs 37 and 143). 36. In paragraph 33 of his speech Lord Phillips said - “The test of admissibility advanced by Lord Mackay in Director of Public Prosecutions v P still requires similar fact evidence to have an enhanced relevance or substantial probative value before it is admissible against a defendant in a criminal trial. This is because such evidence usually shows that the defendant is a person of bad character and thus risks prejudicing a jury against the defendant in a manner that English law regards as unfair. Instead of applying Lord Mackay’s simple test, the trial judge now has to apply his mind to the matters set out in sections 101 to 106 of the 2003 Act . These preserve, however, by rules of some complexity, the requirement that the similar fact evidence should have an enhanced probative value.” That is also reflected in paragraph 52 of the speech. The Act does not say anything about “enhanced probative value” or “enhanced relevance” (the words used in R v Edwards and others ). Paragraph 363 of the Explanatory Notes does refer to an “enhanced relevance test” but only in relation to section 100 of the Act . The terms of that section clearly impose a higher test in respect of the introduction of a non-defendant’s bad character than the test for the introduction of a defendant’s bad character. If the evidence of a defendant’s bad character is relevant to an important issue between the prosecution and the defence ( section 101(1) (d)), then, unless there is an application to exclude the evidence, it is admissible. Leave is not required. So the pre-existing one stage test which balanced probative value against prejudicial effect is obsolete (see also section 99(1) ). 37. In the context of this case we are satisfied that all of the bad character evidence which the prosecution sought to adduce satisfied the requirements of section 101(1) (d). In substance it was the case for the prosecution that over a prolonged period, beginning when she was emotionally vulnerable, the complainant was subjected by the appellant to sexually charged behaviour which on two occasions culminated in rape. The defendant’s response was one of complete denial. He did not simply say that there was never any rape. He denied that he had behaved improperly at any time. It was therefore plainly relevant to an important matter in issue between the parties, namely the credibility of the complainant on the one hand and the defendant on the other, for the prosecution to show that the behaviour to which the complainant said that she had been subjected (other than the actual offences of rape) followed a pattern used by the defendant in relation to two other women who attended the Temple at Thornton Heath, that his behaviour towards women at Tooting gave cause for concern, and that, contrary to his assertion in interview that he had no problems at Tooting, he left his post there because of his behaviour and because he was untruthful, thus exhibiting a propensity to be untruthful (see section 103(1) (b). 38. That brings us to the second stage of the procedure required by the statute, namely the application of section 101(3) . In this case counsel for the defendant did apply to exclude the evidence, and bearing in mind the provisions of Article 6 of the European Convention, we consider it important that a judge should if necessary encourage the making of such an application whenever it appears that the admission of the evidence may have such a adverse effect on the fairness of the proceedings that the court ought not to admit it. As Miss Etherton accepts, section 101(3) does require the judge to perform a balancing exercise, and that exercise does require the judge to look carefully at the evidence sought to be adduced. 39. In our judgment the probative force of the evidence of Indira Mungur and Vidula Amoorden was considerable because, if accepted, it lent powerful support to what the complainant said about the appellant’s technique. Without going into detail the evidence of each woman showed that the appellant sought to strike up a relationship with them when they were at a low ebb in their lives. He belittled their former or intended partners, he admired their clothes, and suggested what colours they should wear, he acquired telephone numbers and addresses and then telephoned regularly, often late at night. He spoke of dreaming of them, of being married to them in a past life, and of the Gods now sending them to him. He offered gifts and did things to their hands and hair in the Temple which were inappropriate because they were only done when a girl became a woman or by her husband. Finally he sought to visit each of them at home when they were alone, and only in the case of the complainant did he succeed. There was no significant indication of collusion although, as we have noted, Indira Mungur and Vidula Amoorden were related by marriage, and one gave the name of the other to the police. The admission of that highly relevant evidence could not in our judgment, have such an adverse on the fairness of the proceedings that the court ought not to have admitted it, not least because the appellant knew precisely who the witnesses were, and what they would say, so he would be able where appropriate to challenge what they had said, and to adduce evidence to the opposite effect. 40. Turning to the evidence of Seevaratnam Nagendram, we take a similar view of his evidence as to the reasons why the appellant ceased to work at Tooting. The appellant had told the police officers that he had no trouble there, and it was highly probative to show that he had been dismissed because he lied to Seevaratnam Nagendram and because of behaviour which Seevarartnam Nagendram had witnessed, or put to the appellant. With all of that the appellant could be expected to deal. If Seevaratnam Nagendram had been allowed to give evidence about complaints made in relation to the appellant’s behaviour which he received from unidentified third parties and which were not put to the appellant such evidence by its nature would have been very difficult for the appellant to meet, and should therefore in fairness to the appellant have been excluded pursuant to section 101(3) , but there was no such evidence tendered in this case. Seevaratnam Negendram was quite clear that his concerns, arising from what he saw and heard, were put to the appellant. For example he was asked - “Q. Did you speak to him about the concerns that were being raised or coming to your attention about his attitude to some women? A. Yes on several occasions I have spoken to him, even spoken about his dress.” 41. Similarly in relation to the lies which, according to Seevaratnam Negendram, the appellant told about his contact with a French family, even to the extent of swearing on God. It is quite clear from the evidence that what mattered to Mr Seevaratnam was the appellant’s response to him and the appellant was well able to deal with that. 42. We therefore conclude that the judge was right to admit all of the evidence pursuant to section 101(1) (d) having given consideration to the application made under section 101(3) . 43. Our conclusions in relation to section 101(1) (d) make it possible for us to deal more succinctly with the other gateway provisions. We accept that a simple denial of the offence or offences alleged cannot, for the purposes of section 101(1) (f), be treated as a false impression given by the defendant. But that was not the situation in this case. The appellant put himself forward as a man who not only had no previous convictions but also enjoyed a good reputation as a priest, particularly at Tooting, where he had previously been employed, and was the victim of a conspiracy hatched up by members of the Mauritian community at Thornton Heath. That, as Mr Kovalevsky accepted, opened the gateway for the admission of evidence as to what happened at Tooting, but he invited our attention to section 105(6) which states that evidence is admissible under section 101(1) (f) “only if it goes no further than is necessary to correct the false impression”. We accept that is a statutory reversal of the previous common law position that character is indivisible ( R v Winfield [1939] 27 Cr A R 139), but we do not accept Mr Kovalevsky’s submission that all that was required in this case to correct the false impression was for Mr Seevaratnam to state that decisions had been taken not to renew the appellant’s contract because of complaints that had been received. The gateway having been opened the prosecution was entitled to adduce a full account of what, according to their witness, brought the Tooting contract to an end. A slightly more difficult question is whether the evidence of Indira Mungur and Vidula Amoorden would be admissible to correct a false impression given by the appellant. Miss Etherton submitted that it was because of the appellant’s allegations in interview about a conspiracy. We prefer to put it slightly differently. In our judgment the evidence of the two women was admissible under section 101(1) (f) because part of the false impression given by the appellant in interview and, as it turned out later by calling seven character witnesses, was that he was a priest who had never behaved inappropriately towards female worshippers at his Temple. 44. We note that the provisions of section 101(3) do not apply to sub section (1 )(f), and we see no reason to doubt that section 78 of the 1984 Act should be considered where section 101(1) (f) is relied upon (see the judgment of Lord Woolf CJ in Highton and others [2005] EWCA Crim 1895 at paragraph 13, and the views of Professor Spencer at paragraph 21 of the paper to which we have already referred). In this case for the reasons which we have already given when dealing with the application of section 101(3) to section 101(1) (d) we do not see any way in which, in relation to sub section (1 )(f), section 78 would assist the appellant. 45. We turn now to the final gateway provision relied upon, namely that the appellant at interview and thereafter made an attack on the complainant’s character ( section 101(1) (g)). Mr Kovalevsky accepts that he did so, but he submitted that the opening of that gateway should not be regarded as rendering all available evidence of bad character admissible. That is a somewhat difficult submission because in the first place it must be noted that section 105(6) has no application to section 101(1) (g), and, secondly, it is clear from the decision in Highton that once this gateway is open the evidence admitted may be used not only in relation to credibility but also in relation to propensity. In our judgment the attack on the character of the complainant clearly opens the door to all of the evidence on which the prosecution sought to rely, subject to the requirements of section 101(3) , which we have already considered in relation to section 101(1) (d). Issue 2 - The Judge’s reasons. 46. We accept that the judge’s reasons for deciding as he did were brief, but they have to be considered in the light of the argument advanced before him. The principal issue was whether the 2003 Act applied. He was right about that. It was accepted by the defence that the gateway provisions were satisfied, so the only other issue was the application of section 101(3) of the 2003 Act or section 78 of the 1984 Act . The significant difference between those provisions is to be found in the mandatory opening words of section 101(3) , but they do not apply until the court reaches its conclusion as to whether 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. In other words the first step is for the judge to perform the balancing act, and it is clear to us that is what the judge did. That is what he was referring to when he spoke of his discretionary power under subsection (3) to exclude evidence. We accept that he could have expressed himself better, but we do not regard infelicity of expression as an effective ground of appeal. Issue 3 - Directions to the Jury. 47. Mr Kovalevsky submits that the judge failed to direct the jury properly as to the use that could be made of the bad character evidence of Indira Mungur, Vidula Amoorden and Seevaratnam Nagendram. In particular it is said that the judge failed to refer to the possibility of collusion or innocent contamination as required by R v H [1995] 2 AC 596 and, secondly, he did not invite the jury to consider the similarities between the accounts. 48. Collusion was never raised as an issue in this case but the possibility of innocent contamination was put to and rejected by Indira Mungur. During the course of the evidence the judge did caution the jury about the way in which they should approach evidence of bad character, and he returned to the topic in his summing-up, saying at page 38G of the transcript in relation to Vidula Amoorden - “Bear in mind the direction I gave you about that, but consider both her account and that of Mrs Mungur. In the absence of collaboration and putting minds together and fabricating these allegations that they make, is it likely that these women have separately invented these incidents? You heard from Mr Seevaratnam, the owner of the Tooting Temple. I referred to his evidence when I gave you a direction about character generally. His evidence is admissible to counter the defendant’s assertion in interview that there was never any problem at Tooting, and also the defendant has made an attack on the truthfulness of Mrs Anenden.” That, as it seems to us, in the context of this case, satisfied the requirements of R v H , and earlier in his summing-up the judge had referred to the evidence of Vidula Amoorden and Indira Mungur as evidence capable of supporting the complainant. At page 6D he said - “Now, these incidents and aspects of their evidence, if you accept them, are capable of supporting Mrs Anenden’s account of the defendant’s course of conduct or course of behaviour towards her, and the prosecution say that together they show a picture of the targeting of vulnerable women at uncertain times in their lives and a purposeful course of grooming towards a situation from which he could take advantage. Now, that is a matter for your judgment.” The judge went on to deal with the evidence in detail. In our judgment he cannot be criticised for failing to spell out similarities between the accounts, and indeed had he done so he would have been assisting the prosecution rather than the defence. Issue 4 - Professor Lipner. 49. Earlier in this judgment we set out one of the questions asked of Professor Lipner and the answer that he gave. Mr Kovalevsky submits that the question should not have been asked, and the answer should not have been given, still less should it have been relied upon by prosecuting counsel in her closing speech and referred to by the judge in his summing-up because “this evidence essentially amounted to an assessment of the likelihood of false allegations of rape being made by a Hindu women against a priest.” We disagree. The word false is an interpolation. Miss Etherton did not ask the witness to express a view about the truth or falsehood of the allegation, and he did not purport to do so, but the jury was entitled to know from an expert whether or not within the Hindu community an allegation of this kind was unusual. In our judgment there is no substance whatsoever in this ground of appeal. Isue 5 – The statement of Vidula Amoorden. 50. Vidula Amoorden made her statement on 1 st March 2004 but later indicated that she did not wish to attend to give evidence, and the judge heard evidence from which he was able to conclude that all reasonable efforts had been made to locate her. That is not disputed. He then had to consider whether her statement could be read, having regard to the factors set out in section 26 of the Criminal Justice Act 1988 , namely (1) the contents of the statement; (2) the risk of unfairness to the accused having particular regard to whether it was likely to be possible for the accused to controvert the statement, and (3) any other circumstances that appeared to the court to be relevant. The judge considered those statutory provisions and in a ruling set out earlier in this judgment decided that the statement could be read. Mr Kovalevsky submitted that his conclusion was wrong because the witness was important and if she could not be produced and cross-examined her evidence should not be adduced at all. In our judgment that cannot be accepted, not least because it would frustrate one important purpose of the statute, which was to prevent a prosecution from being hampered by intimidation of witnesses. The reality was, as we have already indicated, that the appellant was well able to deal with the statement of Vidula Amoorden and, as Miss Etherton points out, his counsel was able to put his case not only to the complainant but also to Indira Mungur. We consider that the judge’s carefully considered decision to allow the statement to be read cannot be faulted. 51. Then it is said that the judge failed properly to direct the jury in relation to the statement which had been read. When the statement was read the judge warned the jury to bear in mind that because the witness did not attend they were deprived of the opportunity to hear her cross-examined, and he repeated that warning in his summing-up, saying at page 8G of the transcript - “Remember that Mr Squirrel was deprived of the opportunity to cross-examine her and challenge her evidence, and take that into account when you assess how much weight to put upon what that witness says, bearing in mind that it was a statement made to a police officer in contemplation of criminal proceedings. So tread carefully, and bear in mind Mr Squirrel was not able to put his case to her in the way that he did, for example, to Mrs Mungur.” 52. Mr Kovalevsky submitted that the direction was inadequate because the witness was important, and drew our attention to the decision of this court in McCoy 10 th December 1999, unreported save in [2000] 6 Archbold News 2. In that case the statement read was that of the victim of what was alleged to be a wounding with intent to do grievous bodily harm who identified his attacker. His evidence was, as this court found, “wholly crucial to the case”. It was not entirely clear why he did not attend, and the judge was precipitate in allowing his statement to be read before giving sufficient time to exhaust the possibility of his being brought to court. It was in that context that Laws LJ said at paragraph 25 of the transcript - “If a statement of a critical witness is to be read to a jury, perhaps especially in an alibi case where identification is the true issue, it must be incumbent on the trial judge to ensure that the jury realise the drawbacks which are imposed on the defence if the prosecution statement is read to them. It is not enough simply to say that counsel has not had the opportunity of cross-examining. A lay jury may not appreciate the significance of that fact. The judge must at least explain that it means that they may feel quite unable to attach anything like as much weight to the evidence in the statement as they might if it was tested in cross-examination; and where appropriate it would be necessary, certainly desirable, for the judge also to indicate to the jury by way of illustration the sort of matters that might well be put in cross-examination in the particular case.” 53. In the present case the evidence of Vidula Amoorden was important, but it was not crucial, and the judge in his direction drew attention not only to the lack of opportunity to cross-examine but also to the question of how much weight should be put on what the witness said. He also illustrated what might have been put to her had she attended by referring to the cross-examination of Mrs Mungur. In those circumstances it seems to us that he did all that was required of him in this case, where the situation was different to that which arose in the case of McCoy . Conclusion. 54. Thus we conclude that the appellant has failed to substantiate any of his grounds of appeal, and accordingly this appeal against conviction is dismissed. Stephen Yaxley-Lennon The Background 55. On 18 th April 2005, in the Luton Crown Court, this appellant was convicted by a majority of 11.1 of assault occasioning actual bodily harm (Count One) and by a majority of 10-2 of assault with intent to resist arrest (Count Two). He was sentenced to 12 months imprisonment on Count One and 3 months imprisonment concurrent on Count Two. He appeals by way of leave of the single judge. The prosecution case 56. The incident in question took place in Luton at around 3am on 4 th July 2004. The victim was an off duty police officer called Dalton. He and his neighbours Mr and Mrs Bye were woken by an argument in the street between the appellant and his girlfriend Jenna Vowles. Although living in the same street, Dalton and the Byes did not know each other. Concerned by the screaming and raised voices, the three of them went into the street from their homes. 57. The appellant was described as being “on a short fuse” and that “something had riled him”. Miss Vowles was sobbing and hysterical wanting nothing to do with him. Dalton concerned for Miss Vowles, told the appellant that he should let her go home alone. He indicated that he was a police officer and showed the appellant his warrant card. He tried to bring the appellant to the ground. Both men fell to the ground. The appellant managed to get to his feet and kicked Mr Dalton in the head. Dalton had thrown no punches. Dalton then stood up and told the appellant that he was arresting him for assaulting a police officer. It was subsequently decided that such an arrest would not be prudent and that the Byes who had witnessed the whole incident, would ascertain the appellant’s address. The defence case 58. In interview and in evidence, the appellant said that he had been out clubbing. He had drunk one bottle of Smirnoff Vodka. He and Jenna Vowles had an argument. She had dropped her mobile phone and was on her hands and knees trying to pick it up. The eye witnesses must have assumed that he was the aggressor. Dalton came up to him. He asked the appellant what he was doing. His breath smelled of alcohol. Jenna was not sobbing or crying. Dalton told him he was not going home and pushed him around, pushing him in the face and pulled his legs from under him. He did not produce a warrant card or say he was a police officer. The appellant did not kick him. It was only at the end when Dalton was threatening him that he indicated he was a police officer. The appellant did not believe him. He suggested that Mr Bye knew Dalton as he addressed Dalton by his Christian name, telling him to leave it and go home. The appellant and Jenna then ran home. 59. Jenna Vowles gave evidence along the same lines of the appellant, describing the argument as a tiff, but that they were happily going home when the incident broke out. Background to the judges ruling. 60. During evidence in chief of Jenna Vowles, counsel for the appellant asked her whether she or the appellant had taken any drugs that evening. She replied “No”. 61. In cross examination, counsel for the Crown asked her the following questions: “ Q - You were asked questions by Mr Urquhart about what you had been drinking. Yes? A – Yeah. Q – An you say you had had four drinks and you were a bit tipsy. Correct? A – Yeah. Q – And then he asked you about whether you had taken any drugs. Correct? A – Yeah. Q – Just tell about drugs please for a moment. What do you want to tell us about drugs? A – I don’t take drugs Q – Never taken drugs? A – No Q – Never possessed drugs? A – Yes Q – Yes. Tell the jury about that A – I was cautioned in November for possession of drugs Q – Which drug? A – It was cocaine Q – Cocaine A – It was in my possession. There were two empty bags which I was clearing out my house. I put them in my bag so my parents wouldn’t find them” It was at this point that the judge asked the jury to retire. There then followed discussions between counsel and court. 62. The Crown whilst conceding that they should have made an application to introduce the caution, said that they would not have raised the issue had the witness not been asked about drugs in evidence in chief. They submitted that the evidence was relevant to the question of credibility. 63. The defence having taken instructions made an application for the discharge of the jury on the basis that the wording of section 100 (1) (b) could not include issues relating to credibility and thus the evidence did not relate to a matter in issue in the proceedings. The judge said that it was premature to discharge the jury at that point without more and that he may have to re-visit the decision at a later point. 64. It was agreed between the parties and the court that the witness should be asked further questions about her caution. The witness was then called and questions were put to her in the absence of the jury. Following the voir dire, defence counsel submitted that the evidence could not fall under section 100 (1) (a) or (b). 65. The judge ruled that Jenna Vowles caution for possession of cocaine had substantial probative value to her credibility, which was an important issue in the case. It had been put that she was lying to support her boyfriend’s case and there was a stark difference between the Crown and Defence accounts. He gave leave for the Crown to ask further questions to the witness in front of the jury, but indicated that he was going to direct the jury that so far as credit is concerned they should ignore the evidence completely, as it could not really help the prosecution prove that she had been lying about what happened in relation to the events of the incident, given that she did not lie in relation to the caution. In the light of the judge’s comments, counsel for the crown did not cross examine further on the matter in the presence of the jury. Counsel for the appellant re-examined the witness on the background facts leading to the caution. Direction in summing up 66. When summing up to the jury, the learned judge gave a strongly worded direction to the jury, as follows: “ One exchange between Mr Heimler and her (Vowles) concerned this question of cocaine. I need to deal with it. You have heard about it. Can I ask you to disregard it completely? It has got about as much to do with this case as the price of tomatoes. First of all the caution took place well after this incident itself occurred…. Secondly – and it is important – although her credibility is in issue, clearly just as much as all the witnesses credibility is in issue, the effect of drugs on that is unknown. It has got really no issue, no bearing on any issue in this case…. I am directing you to disregard her previous caution completely because it cannot help you decide what happened in the street that night…. In fairness please just disregard that completely” Grounds of Appeal 67. The ground of appeal is that the judge erred in holding that the evidence of the caution was admissible and rejecting the defendant’s application to discharge the jury. 68. The appellant’s submissions are put on two bases: Firstly, that the evidence did not relate to a matter in issue in the proceedings as the section does not encompass matters of credibility. Second that even if credibility is encompassed by the section, the evidence did not pass the test of admissibility as it had no substantial probative value in relation to the question of credibility and was not of substantial importance in the context of the case as a whole. It was submitted that the evidence had very little value in relation to credibility and no relevance at all to the offence in question because a) the caution did not relate to an offence of dishonesty or showing evidence of untruthfulness; b) it related to an incident after the events in issue; c) the witness by agreeing to be cautioned had accepted her guilt; d) the witness was frank about her caution in evidence; and e) there was no suggestion that she was under the influence of drugs during the incident itself. 69. The appellant also submits that the conviction is unsafe in the light of the majority verdicts on each count on the basis that the evidence could have adversely affected their view of the witness despite the judge’s strong warning. 70. On behalf of the Respondent, it is submitted that Section 100 (1) must cover the issue of credibility, for were it not to do so, unfairness would ensue. It was submitted that the evidence of the caution was relevant to credibility, but it was conceded that it was difficult to suggest that the evidence had substantial probative value in relation to credibility in the light of the witnesses’ answers. 71. Their primary submission therefore is that the conviction was safe and that the strong warning given by the judge corrected any harm done by the introduction of the evidence. Judgment 72. We now deal with the submissions and the questions arising therefrom. Does section 100 (1) cover issues of credibility? 73. Although couched in different terms from the provisions relating to the introduction of the defendants bad character, in our view, Section 100 (1) does cover matters of credibility. To find otherwise would mean that there was a significant lacuna in the legislation with the potential for unfairness. In any event, it is clear from paragraph 362 of the explanatory notes that the issue of credibility falls within the section. Did the judge err in coming to the conclusion that the evidence of the caution had substantial probative value in relation to the witness’s credibility? 74. In our view he did err for a number of reasons, including those which were put forward by the judge himself when directing the jury to ignore the evidence of the caution. It follows, therefore, that we find that the evidence of the caution was inadmissible under Section 100 . Is the verdict unsafe as a result of the inadmissible evidence being in front of the jury? 75. Mr Urquhart conceded that had the judge found the evidence to be inadmissible but nevertheless declined to discharge the jury, he would have difficulty persuading the court that the judge had exercised his discretion wrongly. Although the exercise of discretion was not the basis upon which the judge declined to discharge the jury, the practical effect is still the same. We have to take a view therefore whether in the light of the admission of the evidence of the caution, the conviction is unsafe. We have considered the evidence as a whole and in particular the very strong warning given to the jury and come to the conclusion that the verdicts in this case, despite being majority verdicts are not unsafe. This appeal against conviction is therefore dismissed. Simon Charles Manister 76. On 15 April 2005 in the Crown Court at Bristol, this appellant was convicted of three offences of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956 . 77. A, the complainant in each case, was born on 12 March 1990 so she was thirteen at the time of the alleged offences; the appellant was thirty-nine. He was a friend of the girl’s father and he moved into the family home on 23 July 2003 and stayed there until December 2003. 78. A alleged that the appellant touched her sexually on a number of occasions, but the allegations which led to the three counts in the indictment were: Count 1, placing his hand between her legs in the region of her vagina, then on her breasts, both over her clothes, in December 2003 soon after he left her family home; Count 2 (an allegation of rape of which he was found not guilty but guilty of indecent assault), full sexual intercourse in mid February 2004; and Count 3, forcibly kissing her, touching the outside of her leg and her bottom and then between her legs in the area of her vagina, all over her clothes, before putting his hand under her upper clothing and bra and touching her breast, on 27 February 2004. All the offences were alleged to have been committed in his car. 79. A did not make any allegation against the appellant until just over a week after the last, alleged incident, when she was arrested for shoplifting. She was interviewed on three occasions, and the video recordings of the interviews stood as her evidence in chief. In the first interview on 9 March 2004 she spoke of the appellant’s relationship with her family and her sympathy for him because he said he had cancer, although it turned out to be a swollen gland in his throat. She spoke of the appellant touching her up on occasions and gave her account of events which led to Counts 1 and 3. At the end of the interview she asked what she should do if she later remembered something else. The interviewing officer said A could come back and speak on tape, and asked her if she had told as much as she could. She said, “Yes”. 80. The second interview was on 19 May 2004. A spoke slowly and it was difficult for the officer to get much out of her. She said that on an occasion in about mid February the appellant had spoken about paying her for sex, which disgusted her, and he tried to kiss her. She spoke of an earlier occasion just before Christmas when she was in his house and he came down naked after a shower. She spoke of him threatening to kill himself on 27 February 2004. She was asked if there was anything else she wanted to say, and she answered “No”. 81. On 28 June 2004 she was interviewed for a third time because she had more to say, and she spoke of the appellant kissing her, pulling her jeans and thong down to her ankles and having sexual intercourse with her in his car on the occasion in mid February 2004. He had ejaculated onto the seat. She had not spoken about it before because she thought people would be mad at her, and she was embarrassed. 82. The appellant had no previous convictions. His case, when interviewed by the police and in his evidence at trial, was that nothing of a sexual nature had occurred between him and A. None of the allegations upon which the indictment was based were true. In interview he said that he and A had a friendship; he gave her a little bit of confidence; he never thought that she thought there was more to their friendship, and he told her “just be mates”. In his evidence, he said that his relationship with A was just a friendship where he wanted to help a friend, a teenager. He was someone who was just there, a sounding board, someone to talk to. He accepted that, looking back, it was an emotionally unhealthy relationship, but he had not done any of the improper things that A said he had done. 83. The prosecution relied on various matters in support of the allegations. Semen with the appellant’s DNA was found on his car seat. It could not be related to A or any particular woman, and the appellant said it was the result of unprotected sex with other, adult women. 84. There were records of a large number of mobile telephone calls between the appellant and A. He had sent her a card with the message, “Be mine as I miss you lots”, which A had hidden under her mattress where it was found by her sisters. 85. The judge ruled that evidence of an earlier sexual relationship with another girl was admissible in evidence, as a result of which the appellant formally admitted, as agreed facts, that from October 1998 to September 2001 he had had a sexual relationship with B, a girl who was sixteen at the start of the relationship, when the appellant was thirty-four. 86. The judge also ruled admissible the evidence of C, a sister of A, and fifteen at the material time, that after going to the gym with the appellant he had told her, “Why do you think I’m still single? If only you were a bit older and I a bit younger”. The appellant denied saying that; it was put to C in cross-examination that she had made it up. 87. The verdict of not guilty of rape but guilty of indecent assault on Count 2 must mean that the jury was sure of sexual intercourse, unlawful because of A’s age, in mid February 2004, but not sure that A did not consent, or not sure that the appellant was reckless as to whether she consented. In those circumstances, the prosecution does not seek to uphold the appellant’s conviction for indecent assault on Count 2 in the light of the decisions of the House of Lords in R v. J [2004] UKHL 42 and of this court in R v. W.R. [2005] EWCA Crim. 1907. 88. The appellant was never charged with unlawful sexual intercourse, and the effect of those decisions is that on 15 April 2005 when Count 2 was left to the jury, it was too late to prosecute the appellant under s6(1) of the Sexual Offences Act 1956 for having unlawful sexual intercourse as an alternative to the allegation of rape, because section 37(2) of, and paragraph 10(a) of Schedule 2 to, the 1956 Act provided that no such prosecution could be commenced more than twelve months after the alleged sexual intercourse in mid-February 2004. In accordance with Rv.J and Rv.W.R, the alternative of indecent assault could not be left to the jury either. A prosecution for unlawful sexual intercourse could not be commenced, so it was also impermissible to commence a prosecution for indecent assault by leaving it to the jury as an alternative to rape. In those circumstances the appeal against conviction on Count 2 must succeed and the conviction for indecent assault on that count is quashed. 89. The remaining appeal against the convictions for indecent assault on Counts 1 and 3 is based on a number of grounds, but primarily on the contention that the judge was wrong to rule the evidence of B and C admissible. 90. The relevant sections in Part II, Chapter 1, of the Criminal Justice Act 2003 are sections 98 ,99(1), 101(1)(3) and (4), 102, 103(1) and 112(1). 91. So far as the potential evidence of an earlier sexual relationship between the appellant and B was concerned, the trial judge concluded that for a man of thirty-four to institute a sexual relationship with a girl of sixteen was properly to be described as reprehensible behaviour, and that this brought the relationship within “gateway” (d) of section 101(1) . It showed a propensity to be attracted to girls of an age which was inappropriate for persons of the appellant’s age. Since this was the context of the evidence, the passage of five or six years since the earlier relationship was not of significance for the purposes of section 101(4) . Having formed a clear view in respect of gateway (d), the judge did not think it necessary to form a view on the additional gateway (f), to correct a false impression, argued by the Crown; he thought it more difficult, but he would not shut it out. 92. The judge ruled that the potential evidence of what the appellant was alleged to have said to A’s sister, C, was admissible as “part of the background as to what is going on in this family, involving the defendant, that the jury was entitled to hear and which, if they accept the evidence, may be useful to them.” 93. Mr Chamberlain challenged both rulings, as he resisted them at the trial. In respect of the sexual relationship with B, he contended that a perfectly legal relationship could not involve the commission of an offence, which we accept; nor could it, being countenanced by the law, amount to “reprehensible behaviour”. There was no exploration of the details of the relationship. What if the appellant had married B? It could not, therefore, amount to misconduct or a disposition towards misconduct. The disputed evidence of what the appellant said to C indicated restraint on his part. 94. In our combined view, the judge was wrong to conclude that the sexual relationship between the appellant and B, without more, amounted to “evidence of, or of a disposition towards, misconduct on his part” and therefore evidence of “bad character” for the purposes of section 98 , and therefore sections 101 , 102 and 103 of the Act . The definition of “misconduct” in section 112(1) is very wide. It makes it clear that behaviour may be reprehensible, and therefore misconduct, though not amounting to the commission of an offence. The appellant was significantly older than B. But there was no evidence, or none that the Crown put forward and the judge ruled admissible, of grooming of B by the appellant before she was sixteen, or that her parents disapproved and communicated their disapproval to the appellant, or that B was intellectually, emotionally or physically immature for her age, or that there was some other feature of the lawful relationship which might make it “reprehensible”. Indeed it might be inferred from the simple agreed facts that the relationship with B was a serious one, with some real emotional attachment, because it lasted some time. 95. However, once it is decided that evidence of the appellant’s sexual relationship with B did not amount to “evidence of bad character”, the abolition of the common law rules governing the admissibility of “evidence of bad character” by section 99(1) did not apply. We have no doubt that evidence of the relationship was admissible at common law, in the particular circumstances of this case, because it was relevant to the issue of whether the appellant had a sexual interest in A. It was capable of demonstrating a sexual interest in early or mid-teenage girls, much younger than the appellant, and therefore bore on the truth of his case of a purely supportive, asexual interest in A. It was not in our judgment unfair to admit the evidence (see section 78 of the Police and Criminal Evidence Act 1984 ). 96. Although the judge came to his conclusion as to the admissibility of the appellant’s relationship with B by a different route, his direction to the jury as to its possible relevance was fair and accurate. He directed them that it was for the jury to decide whether it had any relevance. He reminded them that the age of consent was sixteen. “It is something that you can take into account in deciding whether he might have been attracted to [A]. It does not mean that he would have behaved as she says that he behaved; that is assaulting her sexually. To state the obvious, you can be attracted to someone without assaulting them”. 97. So far as C’s evidence was concerned, the judge did not expressly rule on whether it amounted to evidence of “bad character” for the purposes of the Act , or was simply relevant as part of the background as to what was going on in the sister’s family, involving the appellant. Unattractive as the alleged conversation was, we do not consider that it could safely be judged to amount to reprehensible conduct on the appellant’s part. But his words, with their implied admission of sexual attraction to fifteen year old C, were again, in our view, clearly relevant to the issue of whether the appellant was sexually attracted to A, and therefore admissible for the same reasons which applied to the sexual relationship with B. It was not unfair to admit C’s evidence. 98. The judge did not direct the jury as to the potential relevance of C’s evidence, but it must have been plain that it fell in the same category as the admission in respect of B, namely something which the jury could take into account in deciding whether the appellant was sexually attracted to A. 99. We therefore reject the challenge to the admissibility of the appellant’s conduct in respect of B and C. 100. Mr Chamberlain challenged the judge’s direction in respect of the appellant’s character. Having indicated in the summing-up that he would give a full “good character direction” he did so in the terms of the standard direction suggested by the Judicial Studies Board which, accordingly, concluded by telling the jury that they were entitled to take into account all that they had heard about the appellant. This, Mr Chamberlain contended, was likely to be understood by the jury to refer to his earlier relationship with B, and, therefore, to qualify the terms of the good character direction as a whole. We cannot accept this. The relevance of the appellant’s lack of convictions, to be taken into account in his favour both as to his credibility and the lesser likelihood of committing the offences of which he was accused, was clearly described to the jury who, nevertheless, had to take account of all they had heard. We see no mischief in that. 101. It was contended that the judge should have given the jury a specific warning to exercise caution in relation to A’s evidence in the light of what Mr Chamberlain suggested were weaknesses or implausibilities in her evidence. In particular she told the police in her first two interviews that nothing else had happened, before alleging sexual intercourse, amounting on the face of it to rape, in the third. But the case of Makinjuala; Easton [1995] 2 Cr.App.R.469 , to which we were referred simply says that a judge “may” give a special warning, and we can not fault the judge’s decision not to do so in this case. The judge pointed up the possible weaknesses or implausibilities as he reminded the jury of relevant evidence and issues. 102. It was argued that the judge made comments which might have suggested that A’s shoplifting was caused by the appellant’s behaviour towards her, when he should have directed them that the reprimand for shoplifting was central to her credibility; and that he raised matters which were not canvassed by counsel on either side, including the possibility that A was attracted to the appellant and may have consented to what happened. But the jury was clearly reminded of her shoplifting and the judge’s comments all related to questions which would have come to the minds of worldly members of the jury, and were fairly balanced. We reject the final, and associated submission that the summing-up was “overly favourable” to the Crown’s case. 103. For all these reasons we reject the challenges to the conduct of the appellant’s trial. His convictions on Counts1 and 3 were safe and his appeals against those convictions are dismissed. 104. The success of the appeal against conviction on Count 2 removes the sentence of five years. The sentence of twelve months on Count 1 was not challenged, but that of three years and six months on Count 3 was said to be manifestly excessive in the light of what was contended to be the relatively low level of indecency. But even leaving aside the events of Count 2, where the jury must have been satisfied of full sexual intercourse, Count 3 was a second occasion of indecency when the appellant had A alone in his car. It was in breach of trust by a friend of her father. It was that friendship which had enabled the appellant to become close to her. Her evidence was that on 27 February 2004 the appellant told her that he felt like killing himself, and that he had a gun in the dashboard (although there was no evidence that that was true); that he smashed her mobile telephone after looking at its images, and then drove at high speed so that she was frightened he would kill them both. Then came the indecent assault. The judge accepted her account, as he was entitled to, for the purposes of sentence. In our judgment the events of that night consisted of indecency after intimidation. The appellant did not have the mitigation of admitting his conduct, and the sentence which the judge imposed on Count 3, concurrent to that on Count 1, was not excessive. 105. The appeal against the remaining total sentence of three years and six months is dismissed. Hong Qiang He and De Qun He 106. On 10 March 2005, in the Crown Court at Southwark, these appellants were convicted of violent disorder (Count 1), contrary to section 2(1) of the Public Order Act, 1986. Each now appeals against his conviction. 107. A co-defendant, Feng He, was convicted of the same count of violent disorder. A further co-defendant, Pin Shuen Chan was acquitted of the count of violent disorder on the judge’s direction, but convicted of wounding with intent to cause grievous bodily harm (Count 2). 108. The counts arose out of a running fight between two groups of young men in Chinatown in west central London on the evening of 9 September 2004. Various weapons including knives and baseball bats were used. Parts of the concluding events were captured on CCTV in Shaftesbury Avenue. 109. The CCTV film was alleged to show the appellant De Qun He (“De”) being struck on the head after which he ran away up Shaftesbury Avenue. A group was seen fighting and moving in the direction taken by Hong Qiang He (“Hong”). Hong was said to have used a baseball bat before falling to the ground. Pin Shuenn Chan (“Chan”) was said to have walked towards the group and then run to where Hong was lying, before bending over and stabbing him twice in the leg. De was seen to return, pick up an advertising board, and wave it in a threatening manner towards the group fighting over Hong. Hong was helped to his feet and his friends moved up the street and around the corner. Two of the friends were carrying baseball bats. De put down the advertising board and went with them. They turned into Gerrard Place where some got into a car in which some of the weapons were deposited. Feng He drove the car away. Two got out of the car in King William IV Street, including Hong who was bleeding badly from leg wounds. The car was driven off but soon stopped by police. The driver and the one remaining occupant, De, were arrested. Metal bars wrapped in cellophane, lawn edge cutters and a hammer were found in the boot. 110. Hong, De and Feng He were alleged to belong to one group, and Chan, who was arrested in Shaftesbury Avenue, to the other. 111. When interviewed, Hong said he went to the scene to calm the situation. He did not know if he went to Shaftsbury Avenue. He was hit on the head and stabbed twice, and taken away in a car. 112. De was not interviewed. 113. Chan said he armed himself with a knife, fearing that he would be attacked. He was set upon by others who were armed with knives. He denied using the knife to stab someone, but he was not very clear and did not remember. 114. None of the defendants gave evidence. They put their characters in. Feng He and Chan had no previous convictions. Hong had a caution and De a Conditional Discharge. The judge gave a good character direction in respect of all. 115. The issues in the case of each defendant were his involvement in events and whether he might have been acting in lawful defence of himself or another. 116. The appeals revolve around the admission of evidence, adduced on behalf of Chan, that the appellants were known to the police from previous incidents. On 19 November 2002 they had been the victims of a knife attack but had refused to provide statements. On 6 June 2004 they had been arrested on suspicion of committing a serious assault but had been released without charge after the alleged victims refused to provide statements. 117. Counsel for Chan submitted that evidence of both incidents was admissible by virtue of section 101(1) (e) of the Act which provides that: “In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if … i. (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant …” 118. The judge rejected this submission, rightly in our view, because he did not consider that being the subject of the conduct of others on 19 November 2002, and failing to make witness statements, demonstrated “reprehensible behaviour”, still less the commission of an offence; nor did the mere fact of arrest on 6 June 2004, without evidence to support a charge against either appellant. So neither previous matter could amount to “misconduct” as defined in section 112(1) or, therefore “bad character”, as defined in section 98 for the purpose of section 101(1) (e). 119. However, the judge concluded that the fact that evidence of the previous matters was not admissible as “bad character” did not exclude its relevance. He took the view that ii. “ … it is potentially relevant to Mr Chan’s defence, namely that he was attacked. In this regard the position between defendants on the one hand and the prosecution and defendants on the other is quite different. In short a greater latitude is allowed to a defendant and if there is evidence that some defendants are to be found at or about the scene of disturbances such as the one with which we are concerned then it may assist the jury in deciding whom to believe. This is not necessarily one and the same thing as bad character. There is no conduct reprehensible or otherwise necessarily inherent in the circumstances by which someone may be surrounded, but equally the repetition of such circumstances may be relevant … in the light of the defence actually advanced by Mr Chan … I make this ruling, of course, under the common law”. 120. No doubt there are cases where previous conduct of a defendant is of probative value and therefore relevant to a matter in issue between him and the prosecution or him and a co-defendant, yet the “bad character” provisions of Chapter 1 of Part II of the Act relating to the defendant’s “misconduct” do not apply. In such cases, section 99(1) of the Act whereby the common law rules governing the admissibility of evidence of “bad character” in criminal proceedings are abolished does not exclude the relevant material because it does not amount to “evidence of bad character”. But this was not such a case. The evidence of events on 19 November 2002 and 6 June 2004 could only be relevant if it might show that either appellant had a propensity to violent conduct and therefore bear on Chan’s case of self-defence. To show such a propensity it had to amount to “reprehensible behaviour”, “misconduct” and, therefore “bad character”. By the same measure as events on 19 November 2002 and 6 June 2004 could not amount to reprehensible behaviour, misconduct or, therefore bad character, they could not bear on Chan’s case. There was no room for relaxing this approach simply because it was a defendant, Chan, who sought to introduce the evidence, rather than the prosecution. 121. On the face of the CCTV evidence, interpreted by police officers who knew the appellants, and unchallenged by evidence at trial from the appellants, there was a strong case against each appellant on Count 1, but the admission of the earlier incidents may have poisoned the well so far as their own case of self-defence were concerned, making their convictions unsafe. Their appeals against conviction are accordingly allowed. 122. It is not therefore necessary to consider Hong’s second ground of appeal, but we do so for completeness. The prosecution relied on two alleged lies by Hong, in his police interview. Mr Kapur argued that the judge erred when directing the jury: “You must first decide whether the defendant did, in fact, deliberately tell these lies”. Those words, Mr Kapur contended, removed from the jury the decision as to whether the statements were lies at all, which was contested. However, that argument depends on a partial reading of the summing-up. The judge had hitherto referred to the “alleged lie”, it being “alleged that he lied”, and to “the lies alleged” and “the alleged lies”. The jury must have understood that it was for them to decide whether either statement by Hong was in fact a deliberate untruth. The remainder of the judge’s direction on the topic was fair and accurate. We see no merit in this ground of appeal.

```yaml citation: '[2005] EWCA Crim 2866' date: '2005-11-11' judges: - LORD JUSTICE KENNEDY - 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} ======

Neutral Citation Number: [2008] EWCA Crim 1516 Case No: 2008/2177/A9 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 16 June 2008 B e f o r e : LORD JUSTICE SCOTT BAKER MR JUSTICE BURNETT HIS HONOUR JUDGE ROBERTS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 22 OF 2008 - - - - - - - - - - - - - - - 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 Aylett QC appeared on behalf of the Attorney General Mr D Chidgey appeared on behalf of the Offender - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: Her Majesty's Attorney General applies for leave to refer the sentence on Jordon Wilson under section 36 of the Criminal Justice Act 1988 as being unduly lenient. We grant leave. 2. The offender was born on 3rd December 1989 and is therefore aged 18. It appears that through no fault of the judge he was under the impression when sentencing the offender that he was in fact one year older. 3. The facts are these. On 10th August 2007 the offender pleaded guilty to one count of attempted robbery and on 27th March 2008 he was made the subject of a community order with a supervision requirement and ordered to carry out 100 hours of unpaid work. The sentencing judge was His Honour Judge Ticehurst sitting in the Crown Court at Bristol. 4. Turning to the offence, on the evening of 16th May 2007 the victim, James Dolley, aged 24, went to a nightclub in All Saints Street in Bristol. Mr Dolley left the club at about 2.30 in the morning. He went to a cashpoint machine at the junction of Union Street and Broadmead. He took his wallet from his trouser pocket and then heard someone shouting at him. When he turned around he was aware of two people standing behind him, one closer to him than the other. It is apparent from film from a CCTV camera that the offender was the man closest to Mr Dolley. The offender's co-accused, Aaron Ferguson, was standing slightly further back. The offender then sprayed Mr Dolley in the face with CS gas. Mr Dolley could feel his eyes, nose and mouth burning and he closed his eyes. The offender sprayed him twice more in the face. Mr Dolley was pushed to the ground and the offender punched and kicked him as he lay on the ground. Ferguson went towards Mr Dolley as if to join in. Someone alerted the police to what was happening and the offender ran off. He was arrested not far away. Later that day the police recovered from the area a canister of CS gas and that evening Ferguson handed himself in to the police. 5. Mr Dolley was taken to hospital. He had bruising to his right eye and grazing to his nose. Two weeks after the incident his right eye became infected and as a result very swollen. For a while Mr Dolley was unable to open his eye. By the time he made a further witness statement nearly three months later Mr Dolley said that he had still not been out on his own. 6. When he was interviewed by the police the offender submitted a prepared statement in which he denied having attempted to rob Mr Dolley. The offender then made no comment to the questions that were put to him. 7. On 13th July 2007 the offender and Ferguson were committed for trial by the Bristol Youth Court. At the plea and case management hearing on 10th August the offender pleaded guilty to one offence of attempted robbery. Ferguson pleaded not guilty. Sentencing in the offender's case was adjourned until the conclusion of Ferguson's trial. Two separate psychiatric reports, one for the defence and one for the prosecution, indicated that Ferguson was not fit to be tried. As a result on 22nd February 2008, before Judge Ticehurst, a jury was empanelled to deal with the question of whether or not Ferguson had done the act with which he had been charged. The jury found that he had indeed taken part in the attempted robbery of Mr Dolley. Ferguson's case was then adjourned for sentence. In due course a supervision order was made in his case. It is dealing with Ferguson's case that explains the regrettable delay in sentencing the offender. 8. The offender has previous convictions which include aggravated vehicle taking, threatening behaviour, possession of a knife in a public place, shoplifting, possession of cannabis and motoring offences. On 4th June 2007, that is between two and three weeks after the index offence was committed, he was made the subject of a community rehabilitation order for six months. 9. When the court came to sentence the offender on 27th March 2008 it had before it reports of 31st August 2007 and 27th March 2008. The offender claimed he committed the offence in the context of having consumed a lot of alcohol and smoking cannabis. Had he not done so he claimed he would have been able to resist pressure from others to participate in the offence. The offender successfully completed the rehabilitation order that was imposed on 4th June 2007. By the time of sentence he was said to have moderated his use of cannabis and alcohol. The author of the second probation report thought that the element of risk of further offending that had previously been described as moderate was diminishing. The probation officer recommended a community punishment and rehabilitation order with an additional curfew requirement. As we have said, the judge imposed a community order with a supervision requirement and ordered him to carry out 100 hours of unpaid work. 10. We have a further report of 22nd May 2008. His response to supervision has not been good. On 27th May 2008 he was sent a letter of final warning that if he did not respond breach action would be taken. We have no further up to date information save that Mr Chidgey says on his behalf that he has an explanation for at least one of his failures to attend. The recent report describes him as currently posing a medium risk of causing serious harm to the public. The probation officer thought that he was young for his age, relying on his mother to manage his appointments and to get him around Bristol. 11. The judge in passing sentence observed that the offender had committed an offence which would ordinarily attract a sentence of four years custody on a plea. The Sentencing Guidelines Council guidelines for the appropriate range of sentence describe for adult offenders four years' detention with a range of two to seven years, whereas the position for young offenders is somewhat different in that the starting point is three years' detention and the range one to six years. 12. This offender committed the offence at the age of 17 whereas, as we have explained, the judge was under the impression that he committed it at the age of 18. 13. The judge said that he was going to follow the recommendation in the reports. He made no reference whatever to the aggravating features of the case. Those were that the offender had armed himself with a CS gas canister, that two people were involved in the attack, that he used the CS gas to spray the victim and that he then punched and kicked him whilst he was on the ground and that the offence was committed at night. 14. The judge gave no reason for departing from what he had described as the ordinary sentence following a plea of guilty. We have been referred to Attorney General's References No 150 and 151 of 2002 [2003] 2 Cr.App.R (S) 658. That case pre-dated the Sentencing Guideline Council's recommendations but it is important in that at paragraph 9, Kay LJ, giving the judgment of the court, referred to the Lord Chief Justice's observations in the earlier authority of Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr.App.R (S) 77 at 345. At page 347 the Lord Chief Justice said this: "The information available points in the direction of telephones having played a part in the rise in robberies. Those under 18 constitute nearly half (48 per cent) of all victims, with a peak age at 15 and 16. Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences. Those who do so must understand that they will be punished severely. Custodial sentences will be the only option available to the courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions. However, both those factors are very important when a judge comes to decide on the length of sentence." It is true that that was a case concerning mobile phones whereas this is a case concerning a bank card, but in our judgment offences of the kind in the present case are no less prevalent today than those referred to by the Lord Chief Justice in Attorney General's References Nos 150 and 151 . 15. The only mitigation in the present case was the offender's plea of guilty and his youth, together in our view with one further important factor and that is the length of time that the offender had to await sentence. 16. The judge has written a letter to the court describing what he perceived as the background to the offence but he gave no reasons at the time of passing sentence for departing from the sentence that would ordinarily be expected in a case of this kind. As we have observed, the starting point was three years' detention and the sentencing range from one to six years. In our view the aggravating features would have required a starting point somewhat greater than three years' detention. We think however that the right sentence, following a plea of guilty, would have been one of three years' detention and we then have to make allowance for the important factor of double jeopardy, in particular bearing in mind that a non-custodial sentence was passed, part of which has already been served by the offender. As Kay LJ made clear in Attorney General's Reference to which we have referred, double jeopardy is particularly relevant where someone who has not been sentenced to custody by the lower court has his sentence increased to custody by this court. Taking all these factors into account, we think that the sentence that should now be imposed is one of two years' detention in a young offender institution. The sentence will be increased accordingly. 17. What is the position about surrender to custody? 18. MR AYLETT: My Lord, ordinarily my Lord might say the offender should surrender within either 24 or 48 hours to a nominated police station and the sentence should not begin to run until the time of surrender. My learned friend has a suggestion I think for a police station in Bristol. 19. MR CHIDGEY: I believe my Lord he may be in the vicinity of Trinity Road Police Station in Bristol. So he could surrender there. 20. LORD JUSTICE SCOTT BAKER: Yes, where is he at the moment? 21. MR CHIDGEY: I only know that when I spoke with him earlier today he was with his mother, although not at her house. I do not know his exact whereabouts at the moment I am afraid. 22. LORD JUSTICE SCOTT BAKER: How long are you asking for? 23. MR CHIDGEY: My Lord, could I ask for 48 hours so that things are not rushed? I do not know the situation of his parents, for example, whether he would want to see his father, if his father is still around. I do not know. I wonder if 48 hours might be allowed. 24. LORD JUSTICE SCOTT BAKER: No. We think 24 hours would be sufficient and we direct that he surrender to Trinity Road Police Station by 1 pm tomorrow. 25. MR AYLETT: Would my Lord direct the sentence does not begin to run---- 26. LORD JUSTICE SCOTT BAKER: The sentence must not begin to run until then and we take into account what we think are two days' detention that he has already served. Is that right? 27. MR CHIDGEY: My Lord, it could only have been detention the first time. He was arrested but I know he was on bail after that. 28. LORD JUSTICE SCOTT BAKER: He was in detention for two days. 29. MR CHIDGEY: I am grateful for that being taken into account. 30. LORD JUSTICE SCOTT BAKER: That should be taken into account in determining the sentence he serves. 31. MR CHIDGEY: Yes, my Lord. 32. LORD JUSTICE SCOTT BAKER: Thank you.

```yaml citation: '[2008] EWCA Crim 1516' date: '2008-06-16' judges: - LORD JUSTICE SCOTT BAKER - MR JUSTICE BURNETT - HIS HONOUR JUDGE ROBERTS 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: 200801170 C3 Neutral Citation Number: [2010] EWCA Crim 412 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE SOUTHWARK CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 25 March 2010 Before : LORD JUSTICE LAWS MR JUSTICE BEATSON MR JUSTICE BLAKE - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - TERRY WAYA - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ivan Krolick appeared on behalf of the Appellant Brendan Morris appeared on behalf of the Crown Hearing dates: 27 th January 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Blake: Introduction 1. On 10 July 2007 at the Southwark Crown Court this Appellant was convicted of a count of obtaining a money transfer by deception contrary to s.15(A) Theft Act 1968 as amended. He was acquitted of a second count of similar conduct. He was sentenced to a community punishment order for 80 hours and confiscation proceedings adjourned. On 25 January 2008 a confiscation order was made against him by HHJ Rivlin QC in the sum of £1,540,000 to be paid within 6 months. 2. This is an appeal against part of the sentence, namely the confiscation order, leave to appeal and an extension of time in which to do so having been granted by the full court on the 8 September 2009. It is concerned with how the Proceeds of Crime Act 2002 applies to cases were a person has obtained a mortgage advance by way of deception. The Proceeds of Crime Act 2002 3. Section 76 of the 2002 Act provides as follows “(1) Criminal conduct is conduct which- a. constitutes an offence in England and Wales, or b. would constitute such an offence if it occurred in England and Wales. (1) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial- a. whether conduct occurred before or after the passing of this Act; b. whether property constituting a benefit from conduct was obtained before or after the passing of this Act. (2) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs- a. conduct which constitutes the offence or offences concerned; b. conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned; c. conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence of offences concerned. (3) A person benefits from conduct if he obtains property as a result of or in connection with the conduct. (4) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. (5) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other. (6) If a person benefits from conduct his benefit is the value of the property obtained.” 4. More detailed provisions as to the determination of the value of property or a pecuniary advantage obtained by criminal conduct are spelt out in s.79 of the Act in the following terms: “ Value: the basic rule (1) this section applies for the purpose of deciding the value at any time of property then held by a person. (2) its value is the market value of the property at that time. (3) but if at that time an other person holds an interest in the property it’s value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in subsection (4). “ 5. The basic rule is supplemented by the provisions of s.80: “ Value of property obtained from conduct (1) This section applies for the purpose of deciding the value of property obtained by a person as a result of or in connection with his criminal conduct; and the material time is the time the court makes its decision. (2) The value of the property at the material time is the greater of the following- a. the value of the property (at the time the person obtained it) adjusted to take account of later changes in the value money; b. the value (at the material time) of the property found under subsection (3). (3) The property found under this subsection is as follows- a. if the person holds the property obtained , the property found under this subsection is that property; b. if he holds no part of the property obtained, the property found under this subsection is any property which directly or indirectly represents it in his hands; c. if he holds part of the property obtained, the property found under this subsection is that part and any property which directly or indirectly represents the other part in his hands. (4) The references in subsection (2)(a) and (b) to the value are to the value found in accordance with section 79” 6. The meaning of property for the purposes of this Act is set out in s.84 (1) and (2) (a) (b) (c) and (f): “ 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 in corporeal property. (2) The following rules apply in relation to property- a. property is held by a person if he holds an interest in it; b. property is obtained by a person if he obtains an interest in it; c. property is transferred by one person to another if the first one transfers or grants an interest in it to the second; f. references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest of power.” The unlawful conduct 7. In November 2003 the appellant wanted to purchase a residential property 18A Northgate Mansions, Albert Road London. The purchase price was £775,000. He purchased the property with funds from two sources: he provided £310,000 from his own resources and obtained a loan secured by mortgage from a company known as GE Money Home Lending in respect of the balance of £465,000. In order to obtain that mortgage he made false statements about his employment history and current earnings. He engaged a solicitor to act in the purchase of the property. In due course the money was advanced by the lender. As normally occurs in such transactions, first the money was paid by the lender to the solicitor; it was then paid over by the solicitor to the vendor; finally, the title to the property was registered in the name of the appellant with a charge in favour of the lender. Interest payments were then made by the appellant and kept up to date. 8. In April 2005 the first mortgage was redeemed early when a second loan in the sum of £838,943 was advanced by the Birmingham Midshires Building Society. GE Money lending received back the whole of the outstanding loan, and in addition a payment by way of premium for early repayment. The second mortgage was secured by a further charge on the property. Although the appellant was charged with a further count of obtaining the second mortgage by deception, as a result of his acquittal on count two of the indictment, it is not disputed that the obtaining this second mortgage was untainted by any deception. The appellant was arrested in November 2005. The property had increased in value and by the time of the confiscation order had an open market value of £1,850,000. The assessment of benefit at trial 9. In the confiscation proceedings, a statement was made by DC Peter Clarke indicating that the Crown was proceeding under POCA 2002 s.6(4) on the basis that the Appellant had benefited from particular criminal conduct by virtue of his conviction. This was therefore not a criminal life style case, and no statutory presumptions arise. The particular conduct was that specified in the memorandum of conviction namely that he had obtained a money transfer by deception for the amount of £465,000 from GE Money. 10. The Crown alleged that the benefit obtained by the appellant as a result of his offence was the market value of property as of the date of confiscation proceedings, namely £1,850,000. It did so by reference to a decision of Mr Justice McCulloch of R v K (unreported) 1 October 1990, that was approved by this Court in R v Layode 12 March 1993. Both were decisions under the Criminal Justice Act 1988 . It seems that the Crown’s reasoning was not the subject of dispute below. The judge accepted the Crown’s case and concluded on the basis of the decided case law that it was not necessary to analyse the case in the context of the statutory provisions cited above. He deducted the sum of £310,000 that represented the appellant’s untainted contribution to the purchase price in 2003. He accordingly reached a benefit figure of £1,540,000. It was not contended that the appellant’s available assets were less than this sum. No deduction was made for the loans advanced on the security of the property by either lender. The confiscation order was made in the sum of £1,540,000. The contentions on appeal 11. Before this court the appellant is represented by fresh counsel who did not appear below. Mr Krolick for the appellant submits that the judge was wrong to apply the cases of K and Layode . He relies on R v Walls [2002] EWCA Crim 2456 [2003] 1 Cr App R 31 and R v Nadarajah [2007] EWCA Crim 2688 (16 November 2007). All of these cases were decided before the confiscation order was made in the present case and should have been brought to judge’s attention. He submits on the basis of these authorities that there should have deducted from the confiscation order: a. the present value of the untainted contribution towards the purchase price of the house and b. the value of the equity of redemption. He supports this submission by reference to subsequent decision of this Court in R v Roach [2008] EWCA Crim 2649 12. He advances this submission as follows:- i. The property that was obtained by the appellant ‘as a result of or in connection with his criminal conduct’ was the title to 18A Northgate Mansions. ii. The court is required by s.80(2) and (3) to value the property obtained either at the time it was obtained (subject to adjustment in the value of money) or at the time of the confiscation order, whichever is the greater, but at no other time. iii. Whichever of the two times the court identifies to value the property, the court is required to value the person’s interest in the property and where at both available dates, the property was subject to a mortgage in favour of the lender for the outstanding balance of the loan, the appellant’s interest in the property is therefore his free equity in the property. iv. The value of the appellant’s interest in the free equity in the property was acquired by mixed funds, the untainted £310,000 (40% of the purchase price) as well as the tainted mortgage advance, and the criminal benefit figure is confined to the latter, either at the time of the original acquisition in 2003 or the confiscation order in 2008. v. In 2003 the value of the appellant’s interest in the free equity obtained by criminal conduct was nil. The market price of the property was the price the appellant obtained for it. 40% of this market value was obtained by untainted funds rather than unlawful conduct. The value of the tainted 60% however had to be discounted by the value of the outstanding mortgage for the whole of the balance of the purchase price. vi. The position might have been different in 2005 when the first mortgage was redeemed. It is likely that the 60% of the value represented by the tainted advance had increased in value and there may well have been a benefit in the difference of the value of the 60% and the outstanding loan. However, the 2002 Act precluded the court from making a valuation of the property at this date. vii. By 2008, the position had changed again as the whole of the tainted mortgage had been repaid and the appellant’s interest in the market value of the property at the time of the confiscation order was entirely represented by untainted funds. viii. His primary argument is therefore that the value of the property obtained by criminal conduct was nil. He presented a number of alternatives in the event that the Court disagreed with this conclusion. 13. The Crown no longer relies upon the submissions that it advanced below and persuaded the trial judge to make the confiscation order in the sum that he did. Applying the decisions of this Court in Walls , Roach , and Nadarajah in 2008 Mr Morris submits that the value in 2008 of the benefit obtained in 2003 was 60% of the market value of the property or £1,110,000. It accepts that the judge fell into error in valuing the market value of the whole property in 2008 rather than the 60% of the value of the property represented by the tainted mortgage. 14. He relies on the statement of principles in the decision of the House of Lords in R v May [2008] UKHL [2008] AC 1028 . Lord Bingham observed at [26] “ In several cases the court has been called upon to evaluate the benefit accruing to a defendant who had obtained a mortgage loan by making a fraudulent misstatement. In In re K (unreported) 6 July 1990 (McCullough J), in the context of an order applied for under the 1988 Act to restrain the defendant from disposing of his assets in anticipation of a confiscation order, the judge rejected the defendant's submission that the benefit he had obtained was the equity of redemption in the house he had bought rather than the house itself. That decision was followed by the Court of Appeal in R v Layode (unreported) 12 March 1993 (per Macpherson of Cluny J), another decision under the unamended 1988 Act. It must, however, be appreciated that section 71(4) called for an essentially factual enquiry: what is the value of the property the defendant obtained? If (say) a defendant applies £10,000 of tainted money as a down-payment on a £250,000 house, legitimately borrowing the remainder, it cannot plausibly be said that he has obtained the house as a result of or in connection with the commission of his offence. This was the conclusion correctly reached by the Court of Appeal in R v Walls [2003] 1 WLR 731. That was a case under the 1994, not the 1988, Act, but in distinguishing the earlier decisions the court relied not on the differences between the two confiscation regimes (see para 27) but on the considered reasoning of Neill LJ in the earlier Court of Appeal decision in R v Johnson [1991] 2 QB 249 , which had not been cited in the earlier cases. 15. At the conclusion of the judgment in May the Appellate Committee added this endnote : “ 48 . The committee would conclude by drawing attention to the current importance of the power to make confiscation orders. In the period April 2007-February 2008 the courts in England and Wales made 4,504 such orders in sums totalling £225.87 million. In recent years the number of orders and the sums confiscated have steadily risen. Recognition of the importance and difficulty of this jurisdiction prompts the committee to emphasise the broad principles to be followed by those called upon to exercise it in future. (1) The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses or any amounts payable to co-conspirators. (2) The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? Where issues of criminal lifestyle arise the questions must be modified. These are separate questions calling for separate answers, and the questions and answers must not be elided. (3) In addressing these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions. In very many cases the factual findings made will be decisive. (4) In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition. The language used is not arcane or obscure and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law. (5) In determining, under the 2002 Act , whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions. (6) D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.” The Property obtained 16. We would observe that Mr Morris’s submissions have the virtue of simplicity and consistency with authority and the statutory language as long as he can bring the present case within the ambit of s.80(3) (b) and (c) POCA 2002. 17. In essence what the Crown now contend is that the property obtained by the appellant was not the freehold title to 18A Northgate Mansions, but the funds transferred by the lender to his solicitor that were in turn transmitted to the vendor. If the property obtained is the money, then it can be said:- i) The appellant no longer holds the money because it was invested in the residential property. ii) 60% of the 2008 value of the residential property indirectly represents the funds obtained in 2003 despite the repayment of the first mortgage and the grant of the second, because it was only by means of the first tainted advance that the appellant was able to secure his interest in the residential property that was the basis of the second advance. iii) The funds, unlike the freehold title, were not subject to a charge in favour of someone else that now has to be credited against the current value of the property that represents the funds. iv) The analogy that the Crown makes with the position of someone who purchases shares with tainted funds is a good one. The property obtained by the unlawful conduct is the money that is changed into shares. It is the proportion of the purchase price of the shares that represents the property obtained. The value of the shares at the time of the confiscation order is the relevant value applying the proportion at acquisition. If the tainted part of the purchase price came from a loan or overdraft the value at the date of the confiscation is not discounted by the cost of repaying the loan. As explained in May “The benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses ”. 18. Mr Krolick responds to this new way in which the Crown puts its case by submitting that the share analogy is inappropriate because in the present case the appellant never obtained an interest in the funds that passed through his solicitor’s account but only in the property that was acquired in consequence of the mortgage arrangement. 19. He relies on the analysis of the position at common law given by Lord Goff in the case of R v Preddy [1996] 2 Cr App R 524 . In that case the House of Lords concluded that a mortgagor did not obtain funds belonging to another for the purposes of s.15 Theft Act 1968 before its amendment. Lord Goff observed 538-9 “ I turn first to the stage of the payment to the solicitor. At this point of time, the question has to be considered on the basis that the solicitor, when he receives the money, does so as agent of the lending institution and holds it as bare trustee for the lending institution: see Target Holdings Ltd. v. Redferns [1996] 1 A.C. 421 , 436, per Lord Browne-Wilkinson. Now it is true that, by reason of the deception of the mortgagor, the legal interest in the money has vested in the solicitor; and it may be suggested that in those circumstances the mortgagor has obtained the money either for himself or for another within section 15(2) . But (like Sir John Smith - see his commentary on the decision of the Court of Appeal in the present case [1995] Crim.L.R. 564) I find difficulty in conceiving that in either case section 15 applies where, as here, the solicitor receives the money in his capacity as agent of the lending institution, in circumstances in which the lending institution retains control over the money while in his (the solicitor's) hands and can require it to be repaid at any time. Furthermore, in any event the same difficulties arise here as they do where the money has been paid direct to the mortgagor by electronic transfer, or by cheque. This is because any chose in action which comes into existence by the crediting of the solicitor's bank account (simultaneously with the debiting of the lending institution's bank account), or by the receipt by the solicitors of a cheque from the lending institution, can never have belonged to the lending institution or its bank and so can never have belonged to another as required by section 15(1) . I turn next to the release of the money by the solicitor, with the lending institution's authority, to the vendor's solicitor in the form of a banker's draft. Presumably the solicitor's bank will debit the solicitor's general account with the amount of the draft, and in due course the solicitor will effect an adjustment in his own accounts as between his client account and his general account. The banker's draft will be made payable to the vendor's solicitor who will, on receipt of the draft, obtain property in the form of a chose in action represented by the draft; but once again that chose in action never belonged to another - either to the solicitor acting in the mortgage transaction or his bank, or to the lending institution itself. It is true that the consequence will have been that the lending institution's equitable interest, such as it was, was extinguished. But the identification of that equitable interest is not altogether easy. True, the solicitor acting in the mortgage transaction received the money as trustee, but the money itself was paid directly into the solicitor's client account where it was "mixed" with other money and its identity lost. I suppose that, if the solicitor became bankrupt, the lending institution could assert an equitable proprietary claim in the form of an equitable lien upon the chose in action represented by the credit balance (if any) in the account; but that contingency did not occur and, in any event, despite the broad words of section 5(1) of the Act applicable in the case of obtaining property by deception by virtue of section 34(1), I find great difficulty in conceiving the possibility of the mortgagor "obtaining" any such interest, which is not transferred to the mortgagor or to the vendor, but is simply extinguished, being replaced in due course by the lending institution's rights as mortgagee. In truth, the more one examines this problem, the more inapt does section 15 of the Act appear to be in cases of this kind. It is for these reasons that I have concluded that in circumstances such as these it is not appropriate to charge the mortgagor with having obtained property by deception contrary to section 15(1) of the Act of 1968.” 20. The particular problem created for the criminal law by this analysis was resolved by the enactment of the Theft (Amendment) Act 1996 introducing a new section 15A offence of obtains a money transfer by deception, with which the appellant was convicted. 21. Mr Krolick submits that whilst s.15A undoubtedly established that the appellant was guilty of the offence of “dishonestly obtaining a money transfer for himself or another” it does not alter the position at common law described by Lord Goff. He submits that on that basis it was decided that the appellant obtained no property for himself. The s15A offence could be committed by obtaining a transfer to another, namely his solicitor and therefore is not decisive of what property the appellant actually obtained by his conduct. Conclusions 22. We do not accept that the decision in Preddy is an answer to the Crown’s submissions before us. Preddy was concerned with the construction of s.15 Theft Act 1968 before the 1996 amendment, where a critical element of the offence was that it was necessary for the Crown to show the property obtained belonged to another at the moment when any obtaining took place. Lord Goff at p 534 accepted that the credit into the solicitors account was a chose in action which is turn property but he concluded that this does not assist the prosecution because : “..identifying the sum in question as property does not advance the argument very far. The crucial question, as I see it, is whether the defendant obtained (or attempted to obtain) property belonging to another. Let it be assumed that the lending institution's bank account is in credit, and that there is therefore no difficulty in identifying a credit balance standing in the account as representing property, i.e. a chose in action, belonging to the lending institution. The question remains however whether the debiting of the lending institution's bank account, and the corresponding crediting of the bank account of the defendant or his solicitor, constitutes obtaining of that property. The difficulty in the way of that conclusion is simply that, when the bank account of the defendant (or his solicitor) is credited, he does not obtain the lending institution's chose in action. On the contrary that chose in action is extinguished or reduced pro tanto, and a chose in action is brought into existence representing a debt in an equivalent sum owed by a different bank to the defendant or his solicitor. In these circumstances, it is difficult to see how the defendant thereby obtained property belonging to another , i.e. to the lending institution.” (original emphasis) 23. Lord Goff was thus not concerned to analyse the position where the lender’s money is transferred to the solicitor in contemplation of the purchase of the property and the sale is completed as contemplated. He was concerned with whether what the borrower obtained was property “belonging to another” and only to this extent with the position of the borrower. We are however concerned with s.76 (4) Proceeds of Crime Act 2002 where all that is necessary is that a person obtains property as a result of or in connection with criminal conduct. In the case of R v Mohammed Shabir [2008] EWCA Crim 1809 [2009] 1 Cr App R (S) Lord Justice Hughes observed at [10] “It seems to us that the money transfers obtained by the defendant each month were intangible, or incorporeal, property. They were not, no doubt, property belonging to the paying authority, for the reasons explained some time ago in R v Preddy [1996] AC 815 , because the paying authority never owned the precise chose in action created when the defendant's bank account was credited. Rather, a new piece of property, in the form of a new chose in action, was created, but this is still property obtained by the defendant. For this, see particularly the speech of Lord Goff at 834. In the end, however, it does not matter for present purposes whether what the defendant obtained is properly described as 'property' or as 'a pecuniary advantage'. Whichever it is, the question which matters is what its value is”. 24. Section 84 (1) Proceeds of Crime Act 2002 gives property a wide meaning including things in action and other intangible or incorporeal property. Section 84(2)(a) and (b) demonstrate that property is held and obtained if a person obtains an interest in it, and (f) identifies that an equitable interest suffices. 25. In our judgment, at the latest at the time the conditions upon which the money was advanced were satisfied, the appellant had at the least an equitable interest in the money transfer order in his solicitor’s account, namely a right to ensure that the money was forwarded to the vendor to complete the purchase. Whether the appellant’s interest was in property belonging to the lender institution at a time when his interest arose is irrelevant to our inquiry although it was central to the decision in Preddy. In the words of s.15A Theft Act as amended he obtained the money transfer for himself, if only for the purpose of it being applied to discharge the obligation to pay the purchase price for the property through the solicitor’s account. 26. It follows that the Crown is correct in submitting that it is necessary to trace the money transferred to the appellant through the process when it is invested in the property and changes in character from money into a proportion of the value of the property. Further it makes no difference that before the confiscation order was made, there was a fresh mortgage. The Proceeds of Crime Act 2002 is not concerned with whether there has been a loss to a mortgage company but whether there has been a benefit obtained from criminal conduct. Where there has been, the benefit can be identified and followed into new property in accordance with the statutory scheme. 27. After the conclusion of the argument, we drew attention to s.76(5) and (6) Proceeds Crime Act 2002 and invited submissions as to whether the appellant had gained a pecuniary advantage by the money transfer that he was convicted of, whether or not it was property that he obtained. Section 76(5) equates pecuniary advantage with a sum of money equal to its value. In the event, it is unnecessary to consider this question as we are satisfied that the appellant had obtained a sufficient interest in the transfer to amount to property. There is no statutory definition of pecuniary advantage in the present context. 28. We observe, however, that the terms of s.76(5) where it applies, may be said to support the tenor of the Crown’s construction of the pertinent sections of the 2002 Act which look realistically at the value of the benefit obtained rather than become side tracked by technical complexities of the process of purchase and conveyance with a mortgage. Further Lord Justice Hughes’s observation in the case of Shabir noted above at [23] supports the conclusion that a money transfer is either property or a pecuniary advantage and possibly both. 29. It follows that this appeal should be allowed, but only to the extent that the sum of £1,110,000 should be substituted for the sum of £1,540,000 made by the judge.

```yaml citation: '[2010] EWCA Crim 412' date: '2010-03-25' judges: - LORD JUSTICE LAWS - MR JUSTICE BEATSON - MR JUSTICE BLAKE ```

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No. 2011/04593/C1 Neutral Citation Number: [2012] EWCA Crim 549 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 1 March 2012 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MRS JUSTICE MACUR DBE and MR JUSTICE SAUNDERS - - - - - - - - - - - - - - R E G I N A - v - ANTHONY RUSSELL COX - - - - - - - - - - - - - - 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 Lewis appeared on behalf of the Applicant Miss F Gerry appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T Thursday 1 March 2012 THE LORD CHIEF JUSTICE: 1. This is an application for leave to appeal against conviction which has been referred to the full court by the Registrar. We grant leave. 2. On 26 July 2011, in the Crown Court at Leicester, before His Honour Judge Head and a jury, the appellant was convicted of rape. 3. The facts can be briefly summarised. The complainant and the appellant had known each other for some time. She was aged 20 at the material time. She had a long-established history of alcohol and drug dependency. She worked as a prostitute and lived in a hostel. 4. The appellant was 26 years old. He lived in a nearby hostel. He had major difficulties which included alcohol dependency, personality disorder and a learning disability. The extent and impact of these disabilities are at the heart of the appeal. 5. On the evening of 1 November 2008, after they had both consumed alcohol, the two were walking together. Sexual intercourse took place between them in some bushes in a wooded area near the canal in Leicester. The complainant screamed. Her screams were heard by independent witnesses. The police were called. When they arrived the complainant was in obvious distress. She immediately alleged that she had been raped. 6. In interview the appellant's response was that the complainant had initiated sexual intercourse and had consented throughout. He was granted bail, but was subsequently remanded in custody in October 2009 when the complainant alleged that he had twice approached her in the street and threatened her in an attempt to persuade her to drop the rape charge. The jury which convicted him of rape acquitted him of two offences alleging witness intimidation arising from this allegation. 7. The grounds of appeal are unusual. The conviction followed a carefully conducted trial and a characteristically fair and meticulous summing-up. The basis of the present appeal is that the trial should not have taken place at all. The argument arises in this way. 8. The appellant is a man with complex psychiatric difficulties. These facts were known well before the trial began. Considerable efforts were made to investigate the extent of his multifactorial problems and the appropriate steps to address them in the context of the forthcoming trial of the very serious offence. The history showed that between 1998 and 2006 the appellant had made eight separate court appearances for a variety of different offences. Following indecent assaults on his mother when he was 15 years old, there was an indication that he had been found unfit to plead. However, the subsequent history of his previous convictions did not suggest, and does not suggest to us, either that his fitness to plead was raised as an issue, or, if it was, that he was found to be fit to plead on any other occasions. 9. In March 2011 the issue of using an intermediary was raised before the judge. The judge examined whether he had any power to direct the necessary public funding for this purpose, or indeed whether there was any statutory provision then in force which related to the use of intermediaries for a defendant at trial. On the basis of the well-known decision of the Divisional Court in C v Sevenoaks Youth Court [2010] 1 All ER 735 , the judge concluded that he was possessed of a common law power to give a direction which would enable the appellant to be provided with an intermediary, and accordingly he directed that one should be made available to assist. The direction was ineffective. No intermediary could be identified for whom funding would be available. The issue was taken up in June 2011 before Judge Hammond, another judge who sits in Leicester Crown Court. He was told that three intermediaries had been approached but that each felt unable to provide the necessary assistance. Judge Hammond, anxious to ensure the fairness of the forthcoming trial, took the view that if the problem related to the funding of an appropriate intermediary, he would give an indication of the importance he attached to the provision of an intermediary. 10. In the meantime, both the prosecution and the defence stated that they would obtain further reports on the issue of the appellant's fitness to plead, although in the result the only further report was provided by the defence. 11. In early June 2011 the response to Judge Hammond by the Ministry of Justice, through the Policy Officer for Vulnerable and Intimidated Witnesses, was that every attempt had been made to find a registered intermediary for the case, without success, that the provision of a non-registered intermediary was the responsibility of the solicitors acting for the appellant, and that they had been so informed on a number of earlier occasions. 12. On 13 July 2011 the issue was reviewed at Leicester Crown Court, again before Judge Hammond. Counsel for the appellant told the judge that it was agreed that the real problem was communication with the appellant, and that it was in that context that assistance was needed. 13. On 19 July the case began before Judge Head. The question of the appellant's fitness to plead was closely examined. A substantial body of evidence was placed before the judge to enable him to rule not only on the application which related to his fitness to plead, but also to the question whether, if he was fit, the trial should be stayed as an abuse of process on the basis that it would be unfair for the appellant to be tried without the assistance of an intermediary. In reality, the evidence on these two distinct applications was essentially the same. To that extent, therefore, they were linked. 14. The judge examined the written material. He heard the evidence of Dr Latham who gave oral testimony before him. The judge concluded that, although the appellant's capacity was significantly reduced by "genuine disabilities", there nevertheless remained "a sufficient residue of capacity [for him] to be fit to plead and stand trial". By the date of this ruling it had become apparent that, despite every effort, no intermediary could be found. Examining the second submission the judge asked himself whether, absent the participation of an intermediary, the appellant could receive a fair trial. He concluded that, although the situation was far from ideal, with a number of modifications to the ordinary process, the appellant would indeed be afforded a fair trial. 15. The single ground of appeal is that, notwithstanding the care with which the judge approached these issues, and the provision of competent counsel and solicitors, the appellant was deprived of special measures in the form of an intermediary necessary to enable him to play a proper and effective part in the trial. We must narrate the facts in greater detail. 16. Judge Head considered the evidence of Dr Latham with great care. He noted that, in view of the multifactorial features of the appellant's condition, it was not possible to be satisfied about the correct diagnostic label for the appellant's condition which, according to Dr Latham, was at that time stable. Dr Latham believed that the appellant understood the charges against him. He appreciated that rape involved sexual intercourse with a woman who did not consent. The essence of his account was that he had been invited to take part. Indeed, as the judge noted, during various different examinations throughout the process the appellant had reiterated that when making her complaint that sexual intercourse took place without her consent, the complainant had lied. For example, when one doctor asked him why he was in custody, the appellant replied, "She said I intimidated her, but I never did that". On this basis Dr Latham reiterated, and the judge concluded, that the appellant was well able to decide on his plea, that on the basis of his instructions a not guilty plea was appropriate, and that the appellant was also capable of understanding his right, limited as it now is, of challenge to jurors. 17. As part of his analysis of the issue of fitness to plead, the judge considered the tape-recording of the 25 minute long interview between the police and the appellant. This is a crucial piece of material. As far as we can discover, neither Judge Head nor Judge Hammond had listened to the tape-recording at the time, pre-trial, when various discussions took place about the value that would be provided by an intermediary. Judge Head's observations about the recording are important. He was struck by the fact that the appellant's speech is "undoubtedly odd and at times difficult to follow until one is accustomed to it", but he noted that the answers given by the appellant were relevant and coherent. The judge used his detailed answers about the consumption of alcohol as an example. The interview record also indicated to Judge Head that the appellant was able to think "relevantly beyond the precise question asked" and that he was able to seek an explanation for things spoken in the interview which he did not understand, in particular, as the discussion between counsel and the court this morning indicated, the meaning of the word "ejaculate". He was able to challenge a suggestion made by the interviewing officer which was based on a misunderstanding by the officer of the facts. Accordingly, Judge Head came to the conclusion that, making every allowance for the peculiarity of the appellant's method of speaking, the answers given by him in the interview were "at the least appropriate and coherent". 18. The judge then addressed the particular question of the concerns expressed by Dr Latham about the ability of the appellant to communicate both with his own lawyers and, if he elected to give evidence, when giving evidence. The judge was satisfied that the appellant was "by no means unable to communicate" with them. A consideration of the record of the police interview and the various account of events recorded in the course of a variety of different medical examinations led to the conclusion that the appellant had demonstrated "a substantial capacity to listen, to understand questions and to reply appropriately and relevantly", notwithstanding that the appellant was, as Dr Latham had explained, capable of seeking to "manipulate his disability to his own advantage in relying on it to evade giving answers". 19. Having examined all the available evidence the judge concluded that, notwithstanding genuine difficulties, a sufficient residue of capacity remained for the appellant to be regarded as fit to plead and to stand trial. This conclusion is not the subject of any criticism. 20. Nevertheless, it remained the submission that the trial of the appellant, which would follow the conclusion that he was fit to plead and to stand trial, would be an unfair one because of the absence of an appropriate intermediary to provide the appellant with assistance. The judge examined this issue distinctly from his conclusion in relation to fitness to plead. He said that he would grasp the nettle. He would not examine the question of whose fault or responsibility it was that there was no intermediary. He recognised that the situation was far from ideal. He said (and this is reflective of an examination of the evidence): "My impression of this defendant and his abilities has changed and matured during my involvement in this case. It has now been informed by my hearing the police interview tape, reading a bundle of reports, including Mr Hendy's, and hearing Dr Latham." 21. The judge referred to authority which suggested that trials should not be stayed where an asserted unfairness can be met by the trial process, and also to the emphasis in the authorities on the exceptionality of an order for a stay. He referred to the court's decision in TP (R on the application of) v West London Youth Court & (1) Crown Prosecution Service (2) Secretary of State for the Home Department (Interested Party ) [2005] EWHC 2583 Admin , propounding the test: "Taking into account the steps that can be taken in the youth court will the claimant be able effectively to participate in his trial?" Judge Head underlined the use in that quotation of the word "effectively". He examined "a complete raft of procedural modifications to the ordinary trial process" which would be appropriate in the situation which now obtained. These included short periods of evidence, followed by twenty minute breaks to enable the appellant to relax and his counsel to summarise the evidence for him and to take further instructions. The evidence would be adduced by means of very simply phrased questions. Witnesses would be asked to express their answers in short sentences. The tape-recordings of the interview should be played, partly to accustom the jury to the appellant's patterns of speech, and also to give the clearest possible indication of his defence to the charge. For this purpose it was an agreed fact before the jury that "Anthony Cox has complex learning difficulties. He could understand simple language and pay attention for short periods". This was a carefully crafted admission to ensure that proper allowances would be made for the difficulties facing the appellant without creating any risk that the jury might reflect on the evidence in the context of the question of whether or not the appellant was potentially dangerous. 22. The judge concluded that the interests of justice required him to maintain a close control over the questioning, to intervene where any possible unfairness might arise, and to ensure that the appellant was not unduly stressed by the proceedings. He would have to be "rather more interventionalist" than normal. He would play "part of the role which an intermediary, if available, would otherwise have played". He recognised the continuing obligation on him to monitor his "initial conclusion" on these issues. He plainly did so. He gave his reasoned ruling before closing speeches at trial in the light of events that had happened following his ruling. 23. Summarising the judge's approach to this issue, Mr Lewis, who represented the appellant at trial and before us today, in a vivid phrase suggested that the judge's conclusion was that "the pursuit of the perfect must not become the enemy of the good, or at least the good enough". In short, Judge Head distinguished between the best practice and an acceptable sufficiency. 24. We are grateful to Mr Lewis for his forthright and candid approach to the issues raised in his ground of appeal. He has struck precisely the difficult balance to be drawn between his obligations to the appellant and his responsibilities to the court. In his written submissions he says that the measures put in place by Judge Head appeared to work to a large extent. The appellant was able to follow most of the evidence for twenty-minute periods. The appellant was able to provide simple instructions. Constant meetings with him seemed to reduce his anxiety. The judge intervened when the appellant appeared distressed or distracted in the dock, and, as he promised, the judge did his best to fulfil some of the functions which an intermediary would have fulfilled. Indeed, Mr Lewis concluded his written perfected grounds of appeal by frankly stating that he was unable to identify a point where the measures taken by the judge did not work. 25. Mr Lewis drew attention to one difficulty: the question of whether the appellant should give evidence, where he had the assistance of an experienced solicitor who understood the appellant better than most. He told us that the absence of an intermediary played a part in the decision by the appellant not to give evidence, although it was not the only reason for not calling him to give evidence on his own behalf. We can see a number of sound reasons why the decision was taken that the appellant should not give such evidence. 26. It is clear that the judge summed up the appellant's exculpatory account given in his second police interview as if it were evidence. He resisted suggestions by the Crown that the jury should be reminded that it was not evidence. In the context of the decision by the appellant not to give evidence, although the judge gave the jury the appropriate direction in relation to the possibility of drawing inferences against him for that reason, he carefully reminded the jury of the submissions made to them by Mr Lewis based on the appellant's difficulties, as summarised in the agreed facts. 27. For the purposes of this appeal we have read all the medical and the other evidence, and the transcript of Dr Latham's evidence. In the short oral submissions we have heard today, Mr Lewis drew to our attention particular features of Dr Latham's evidence. We have also listened to the tape-recording of the appellant's interview with the police and his exculpatory accounts of the relevant events. We shall not repeat all the findings made by Judge Head. The appellant's manner of speech is unusual. To understand him it is necessary to concentrate closely on what he is saying. Even allowing for the stress of the situation in which the appellant found himself at the time, that is being interviewed by the police in the context of an allegation of rape, we were struck and, having read the evidence, somewhat surprised by the extent of his ability to comprehend the questions -- sometimes not short and simple, and sometimes quite long and complex -- and to provide appropriate answers, that is appropriate to the questions and consistent with his assertion that when sexual intercourse took place the complainant was a willing participant. So, for example, in the interview he asserted that the complainant had told him to take down his trousers. He first of all claimed that he had not heard her screams and then said that afterwards she "started roaring". He explained that he was drunk. The interview was also marked by the absence of any significant interventions to assist him by the appropriate adult who was present to offer assistance if it was needed. 28. The use of intermediaries is one of the special measures created by the Youth Justice and Criminal Evidence Act 1999 . It is worth underlining that, like many of the special measures provisions, it is a discretionary measure -- one which may be taken if the judge at trial making the appropriate judgment on the evidence decides that its use would be appropriate. For present purposes we shall assume that if necessary an intermediary should be made available for a defendant. However, as the current edition of Blackstone's Criminal Practice suggests "experience has shown that one of the most useful functions of intermediaries is to assist the trial judge and counsel in establishing what types of question are likely to cause misunderstanding and thus averted". Although it is clear from section 29 of the 1999 Act which creates the discretion to use intermediaries as a special measure, that an intermediary can also assist a witness to communicate by explaining questions and answers, again as Blackstone records, this "happens rarely in practice". Questions, therefore, are usually put directly to the witness. The intermediary's function is actively to intervene when miscommunication may or is likely to have occurred or to be occurring. 29. We immediately acknowledge the valuable contribution made to the administration of justice by the use of intermediaries in appropriate cases. We recognise that there are occasions when the use of an intermediary would improve the trial process. That, however, is far from saying that whenever the process would be improved by the availability of an intermediary, it is mandatory for an intermediary to be made available. It can, after all, sometimes be overlooked that as part of their general responsibilities judges are expected to deal with specific communication problems faced by any defendant or any individual witness (whether a witness for the prosecution or the defence) as part and parcel of their ordinary control of the judicial process. When necessary, the processes have to be adapted to ensure that a particular individual is not disadvantaged as a result of personal difficulties, whatever form they may take. In short, the overall responsibility of the trial judge for the fairness of the trial has not been altered because of the increased availability of intermediaries, or indeed the wide band of possible special measures now enshrined in statute. 30. In the context of a defendant with communication problems, when every sensible step taken to identify an available intermediary has been unsuccessful, the next stage is not for the proceedings to be stayed, which in a case like the present would represent a gross unfairness to the complainant, but for the judge to make an informed assessment of whether the absence of an intermediary would make the proposed trial an unfair trial. It would, in fact, be a most unusual case for a defendant who is fit to plead to be found to be so disadvantaged by his condition that a properly brought prosecution would have to be stayed. That would be an unjust outcome where, on the face of the evidence, a genuine complaint has properly been brought against the defendant. If the question were to arise, this court would have to re-examine whether the principles relating to fitness to plead may require reconsideration. 31. We have closely examined the evidence in this trial. In our judgment from start to finish Judge Head conducted the proceedings with appropriate and necessary caution. Having examined all the material, we are in the result satisfied that the appellant's conviction followed a fair trial. Accordingly, this appeal will be dismissed.

```yaml citation: '[2012] EWCA Crim 549' date: '2012-03-01' judges: - MRS JUSTICE MACUR DBE - MR JUSTICE SAUNDERS ```

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No: 200400806 A1 Neutral Citation Number: [2004] EWCA Crim 2046 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 21st July 2004 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE NELSON MR JUSTICE MCCOMBE REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 9 OF 2004 Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) MR C HEHIR appeared on behalf of the ATTORNEY GENERAL MR A VAITILINGAM appeared on behalf of the OFFENDER J U D G M E N T Wednesday, 21st July 2004 1. LORD JUSTICE ROSE: The Attorney General seeks the leave of the court under section 36 of the Criminal Justice Act 1988 to refer a sentence said to be unduly lenient. We grant leave. 2. The offender was born in December 1974 and is therefore 29 years of age. He was charged on an indictment containing two counts. On the first day of the trial he pleaded guilty to assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861 , and three days later, on 7th November 2003, he was convicted of the more serious alternative offence of inflicting grievous bodily harm with intent, contrary to section 18 of the same Act. 3. On 8th January 2004 he appeared before Mr Recorder Still at Exeter Crown Court. He was sentenced on that occasion to two years' imprisonment suspended for two years; that sentence being made up of two years suspended for two years for the section 18 offence, which had been committed in May 2002, a concurrent sentence of 12 months suspended for two years for an offence of affray on 3rd November 2002, and a similar sentence, similarly suspended, for an offence of affray on 4th March 2003. There were a number of other matters: common assault, possession of offensive weapons and driving offences committed between 14th February and 4th March 2003. Concurrent sentences of three and six months were passed in relation to those offences, but suspended, and orders were also made for disqualification and endorsement. 4. An existing Community Rehabilitation Order, which had been imposed on 4th October 2002, was ordered to continue. The offensive weapons, which were three Samurai swords, were ordered to be forfeited. No action was taken in relation to possible recall to prison for a one and a half month unexpired period of sentence which remained outstanding. 5. Thereafter, however, on 23rd January 2004, the matter was re-listed before the Recorder for reconsideration under the slip rule. On that occasion he deferred sentence for six months; that is until 23rd July, which is two days from today. 6. The circumstances, in outline, were that, in drink, the offender, who has a history of violence, attacked a vulnerable man who had annoyed him. He punched the victim to the ground and kicked and punched him in the head while he lay there unconscious. He bit the victim's genitals, wounding his penis. He persisted in the attack, in spite of intervention by members of the public. The victim's left eye, by virtue of the attack, sustained a permanent deterioration in the quality of its vision. 7. In a little more detail, the offender had been drinking in a public house when the victim, a Mr Lumley, who was also a customer in the same public house, was talking loudly in a way which annoyed the offender, who was using the telephone. Mr Lumley has learning difficulties and, as we have said or implied, he had been drinking. There was a heated debate. Both of them, Mr Lumley and the offender, were told to leave. Once outside the offender knocked Mr Lumley to the ground with a punch, rendering him unconscious. He then kicked and punched him, using what was described as "full" force to the extent that the victim's body moved along the ground as a result of the impacts upon it. The offender then lent over the victim, turned him over onto his back, knelt down and bit him several times, through his trousers, in the genital area. Each time his head was described as coming away in a tearing action with the victim's trousers gripped between the offender's teeth. One of those observing sought to intervene, but the offender ran round him and kicked Lumley in the head again. More than one witness described the assault as the most vicious he had ever seen. Ten or twelve blows of one sort or another were observed. The final kicks were likened to a rugby player kicking a conversion. 8. The offender made off. The victim was taken to hospital. He was not at that stage aware of the injury to his private parts. He was examined by doctors and found to have an extremely swollen and cut left eye and marked bruising around the socket. The pupil of that eye did not react to light. There was a suspected fracture, not confirmed on x-ray. He also had bruises and abrasions to his face and he had blood coming from his nose. 9. A little later the victim realised that his penis had lost a piece of skin measuring some 4 cm by 2 to 3 cm. 10. His left eye was damaged to the extent that by the time of trial, 20 months after the assault, his vision was still impaired and that eyeball was not as mobile as the other uninjured one. He continued at that stage to have pain in his eye and forehead. 11. There was scarring of the penis by reason of the injury which we have described, and, unsurprisingly, the victim felt considerable embarrassment by virtue of that. 12. When he was interviewed by the police, having been arrested the day after the incident, the offender chose to remain silent. 13. At his trial, his defence was twofold: first, that the injuries did not amount to grievous bodily harm and, secondly, that he had no intention to cause really serious harm and, furthermore, he had been acting in self-defence. 14. The offender has 38 previous convictions and has since 1993 appeared in court on 16 occasions. He has been dealt with in a variety of ways, including discharge, fine, curfew order, Community Service Order and Community Rehabilitation Order. He has been sentenced to detention in a young offender institution and to imprisonment. 15. His most recent appearances are as follows. On 31st July 2001 he was sentenced to nine months for affray, criminal damage and battery, having entered someone's house with a pick axe head and forced his way upstairs causing damage during a fight. 16. On 8th February 2002 he was sentenced to nine months for assaulting a police constable, assault with intent to resist arrest and theft. He was recalled to prison for three months for breach of licence following his conviction for the offence dealt with in the way which we have described on 31st July 2001. 17. He was released on licence on 9th April 2002 and was accordingly on licence when the present offence was committed six weeks later on 19th May. 18. On 31st May he was returned to prison and his licence was revoked. On 3rd July he was released on conditional licence. 19. On 4th October a two year Community Rehabilitation Order, with a condition of participation in specified activities, was made. 20. While he was on bail for the offence which is presently the concern of the court, the offender committed a dwelling house burglary. No action resulted so far as the consequential breach of licence was concerned. 21. On 3rd November 2002, he committed an offence of affray. He had been drinking and an argument had developed with his girlfriend, who had asked him to leave. He had gone upstairs to pack and poured paint on her bed and caused a variety of other damage. 22. On 9th January 2003 he pleaded guilty before the magistrates to that affray and was committed for sentence, but the same evening he was arrested for being drunk and disorderly. He punched an unknown man in the street and caused some injury. He was arrested and found to have two wraps of heroin in his possession. For those offences he was sentenced on 25th March 2003 to a six month curfew order. 23. Meanwhile on 4th March 2003, for another offence of affray, he pleaded guilty before the magistrates and was committed for sentence together with the section 18 offence. That related to three Samurai-style swords which he had bought in January. He was in dispute with the former boyfriend of his girlfriend. He appeared in the street near the ex-boyfriend's address, wielding the swords in a martial arts type movement. He approached a woman returning home with her family and told her not to say a word or he would kill her. He also made threats to the ex-boyfriend at his home, although apparently the ex-boyfriend was not there at the time. A 16 year old boy was one of those who attended the scene caused by these activities and he tried to calm him down. He seized the boy by the scruff of the neck. 24. On 30th July 2003 he was fined for being drunk and disorderly. 25. On 8th January and 23rd January 2004 the sentencing processes to which we referred at the outset of this judgment were carried out. 26. On behalf of the Attorney General, Mr Hehir draws attention to what he says are nine aggravating features in relation to this case. First, the offence was unprovoked. Secondly, it was in a public place. Thirdly, the victim was vulnerable. Fourthly, the victim was knocked unconscious and most of the attack took place while he was in that condition. Fifthly, full force was used in the kicks and punches. Sixthly, the offender persisted in the attack despite intervention by members of the public. Seventhly, the biting of the victim's genitalia occurred more than once. Eighthly, lasting damage was done to the victim's eye and penis. Finally, he was, as has already been described, on licence at the time. 27. Mr Hehir draws attention to the mitigation to be found in the fact that no specific other weapon was used, although a shod foot and teeth are themselves, as was said by Lord Taylor CJ in Attorney General's Reference No 47 of 1994 , R v Smith 16 Cr App R (S) 865 at the foot of 867, just as much weapons as are weapons more traditionally so described. 28. Mr Hehir also points out that the offender apologised to the landlord of the public house some time after the incident, and, in the pre-sentence reports, which were before the sentencing judge and which are before us, he expressed remorse. 29. Mr Hehir submits that deferral of sentence was outwith the bounds of sentencing options properly open to the judge and an immediate term of imprisonment of sufficient length to make suspension unavailable was the only proper form of sentence for an offence of this kind, committed in the circumstances which we have described by this offender. It was also submitted by Mr Hehir that, in deferring sentence, the Recorder failed to have regard to the aggravating features and the need to protect the public and society's concern about offences of this nature. 30. On behalf of the offender, Mr Vaitilingam accepts that this was what he described as "a serious and repugnant offence". He accepts that it would be very unusual for a non-custodial sentence to be imposed in relation to such an offence. But, he submits, the course followed by the learned Recorder, albeit lenient, was not unduly lenient. He invites the court, even if it concludes to the contrary, to exercise its discretion in favour of not interfering with the course proposed by the learned Recorder and permitting, in two days' time, the possible imposition of a suspended sentence. 31. In support of that submission, Mr Vaitilingam draws attention to the history of this case in that, although the offence was committed in May of 2002, the offender was not charged until March of 2003 when forensic evidence became available. The offender was always willing, says Mr Vaitilingam, to plead guilty to the section 47 offence. 32. Mr Vaitilingam places particular stress upon the many appointments kept in relation to the treatment of the offender's aggression. Some two hundred such appointments, he suggests, had been kept prior to sentencing. By today, some three hundred appointments have been kept. The material before the court, Mr Vaitilingam submits, suggests that some benefit is accruing to the offender from the course which he has been following. The way in which it is expressed in the most recent report dated 1st June is that "for the most part Mr Doyle has maintained the progress referred to in the Pre Sentence Report", and: "... work undertaken by Mr Doyle has gone some way towards lowering his risk of reoffending and consequently protecting the public. The Court permitting this work would continue in a similar fashion until at least October 2004." 33. Mr Vaitilingam submits that the court should have regard to the offender's expectations having been raised in relation to the sentence to be passed upon him, both by the initial imposition of a suspended sentence and the subsequent deferral of sentence. Those matters, Mr Vaitilingam submits, rightly, are pertinent to the exercise of this court's discretion as well as pertinent to consideration of the extent, if at all, to which the course followed by the learned Recorder was unduly lenient. 34. To all of those matters we have regard. This was, as we have described it, a serious attack upon a vulnerable man which was sustained, despite the attempted intervention of others, and took a variety of forms of insult to different parts of the victim's body. Even taking into account such delay as took place before the appellant was sentenced, and even taking into account the steps which the offender had taken by way of attending appointments to seek to deal with his aggression, we have no doubt that the sentence passed by the learned Recorder was an unduly lenient one. We say that because we would have expected him to pass a sentence of at least four years' imprisonment for this offence. 35. The question which then arises is whether or not this court should interfere with the sentence which was passed. In our judgment, it would be wholly inappropriate, having regard to the level of sentence which we have indicated ought to have been imposed in the first place, not to interfere. We take into account, however, not only the element of double jeopardy, that is to say that the offender is being sentenced a second time, but also the efforts which he has undoubtedly made with a view to improving his behaviour, although only time will tell the extent to which they have an effective result. 36. In those circumstances, although, as we have said, we would have expected a sentence of at least four years to be passed below, the sentence which we pass in substitution for both the proposed suspended sentence and the deferral of sentence by the learned Recorder, is one of two years' imprisonment, that period of course not being suspended. 37. MR HEHIR: My Lord, out of an abundance of caution perhaps, can I ask whether your Lordship expresses any part of that sentence concurrently or otherwise as relating to the concurrent sentences for the affrays and the other matters for which the offender was also dealt with. 38. LORD JUSTICE ROSE: Yes, you are quite right, Mr Hehir. The sentences were suspended in relation to the affrays, were they not, and then deferred? 39. MR HEHIR: My Lord, that is right. 40. LORD JUSTICE ROSE: We are not dealing with that. It is right that you should raise it, but we are dealing with the section 18 offence and that sentence will be served from the date on which the offender surrenders to custody. 41. MR HEHIR: I am grateful. 42. LORD JUSTICE ROSE: It may be that the most convenient course, as he was anticipating -- I assume he is not here, is he? 43. MR VAITILINGAM: My Lord, he is not. I imagine he will be at court tomorrow. The deferred sentencing for Friday has been brought forward to tomorrow and I imagine he will be there. Can I say, it is not clear to me, but is it the position that the other matters will remain with the Recorder for sentence tomorrow, or does your Lordship impose concurrent sentences on them now? 44. LORD JUSTICE ROSE: I am not sure, off the top of my head, that we have jurisdiction in relation to affray, have we? It is an either way offence. 45. MR HEHIR: It is, but your Lordships of course have jurisdiction in relation to any sentence passed at the same time as the offence which is the subject of the reference. 46. LORD JUSTICE ROSE: Yes. 47. MR HEHIR: So your Lordships do have jurisdiction. I would respectfully suggest that the appropriate course would be to order no separate penalty for the other offences or to impose concurrent terms of appropriate length, not interfering with the overall period of two years that my Lord has just indicated. 48. LORD JUSTICE ROSE: Yes. In place of the suspended/deferred sentences imposed by the learned Recorder, we shall impose concurrent sentences of 12 months' imprisonment in relation to both the affray offences. Those concurrent sentences will run concurrently with the two year sentence which we pass in relation to the section 18 offence. Those sentences will start to be served when the offender surrenders to custody, which we anticipate will be tomorrow. 49. MR HEHIR: I am grateful. I apologise for continuing to trouble my Lords. There are also the other matters of common assault, possession of offensive weapons and the driving matters. 50. LORD JUSTICE ROSE: We impose no separate penalty in relation to those, but thank you for reminding me. 51. MR HEHIR: I am grateful.

```yaml citation: '[2004] EWCA Crim 2046' date: '2004-07-21' judges: - LORD JUSTICE ROSE ```

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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. No. 201902932 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION [2020] EWCA Crim 466 Royal Courts of Justice Friday, 13 March 2020 Before: LORD JUSTICE HADDON-CAVE MRS JUSTICE CARR DBE MR JUSTICE PEPPERALL REGINA V GARY KEVIN SMITH __________ 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] REPORTING RESTRICTIONS APPLY: THE SEXUAL OFFENCES (AMENDMENT) ACT 1992 ________ J U D G M E N T MRS JUSTICE CARR: 1 Following his earlier guilty pleas, the appellant was sentenced on 30 July 2019 in Nottingham Crown Court to a total sentence of 10 years' imprisonment on three offences of sexual activity with a child family member and two offences of inciting a child family member to engage in sexual activity. 2 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. 3 This is the appellant's appeal against sentence with limited leave: the matter is before us for the sole purpose of clarifying the sentence methodology. At the conclusion of his sentencing remarks, the Judge stated that looking at the totality of the case, had the appellant been convicted after a trial, the total sentence would have been 15 years' imprisonment made up of 10 years on the lead offence on Count 5, five years' imprisonment concurrent with each other, but consecutive to the ten years on Counts 1, 2 and 4 and three years' imprisonment concurrent on Count 3. Giving credit for the plea, the sentence was reduced to ten years' imprisonment. The Judge therefore failed to make clear the discount for plea on each of the sentences on each count. 4 The necessary corrections which we make are as follows. Taking each sentence as imposed and applying a full one-third credit for guilty plea, on Counts 1, 2 and 4 the previous sentences will be quashed and reduced to 40 months on each. On Count 3 the previous sentence will be quashed and reduced to 24 months. On Count 5 the previous sentence will be quashed and reduced to one of 80 months. The sentence structure remains the same. Thus, the sentences on Counts 1 to 4 are to run concurrently with each other, but consecutively to the sentence on Count 5. The overall sentence of 10 years' imprisonment stands. __________ OPUS 2 DIGITAL TRANSCRIPTION CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] This transcript has been approved by the Judge.

```yaml citation: '[2020] EWCA Crim 466' date: '2020-03-13' judges: - LORD JUSTICE HADDON ```

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Neutral Citation Number: [2009] EWCA Crim 955 No: 2009/0636/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL 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 LINDA STRAUGHAN - - - - - - - - - - - - - - - - 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 Macadam appeared on behalf of the Applicant - - - - - - - - - - - - - - - - Judgment 1. 1. MR JUSTICE HICKINBOTTOM: On 16 May 2007 in the Crown Court at Bradford the applicant, Linda Straughan, was convicted of six counts of fraudulent trading for which she was sentenced the following day to a total of two years' imprisonment. 1. 1. The charges arose out of a course of dealing between a number of banks and a series of companies by which the applicant was employed, together with her three co-accused (including Mark Grainger), all of whom pleaded guilty or were convicted on similar charges. As a result of this fraudulent activity the companies obtained nearly £50 million, leaving the banks with losses of £7.5 million. 1. 1. On 21 January 2008, at a confiscation hearing, the trial judge, His Honour Judge Durham Hall, assessed the benefit of the applicant and each of her co-accused respectively as the aggregate value of the property obtained by the companies as a result of the fraud, that is £46.7 million-odd, which he proceeded then to apportion between the four defendants, adopting what he called a "pragmatic" approach. He assessed the applicant's share as 7.3% which translated into £3.89 million. 1. 1. The realisable assets of the applicant being £125,000, he made a confiscation order against her in that sum to be paid within 12 months with 15 months' imprisonment in default. 1. 1. The applicant now seeks to appeal against that confiscation order relying upon a single ground, namely that following Jennings v Crown Prosecution Service [2008] UKHL 29 the approach of the judge in this case -- which in fairness to him was that advocated by the Court of Appeal in Jennings [2005] EWCA Civ 746 -- was wrong. It is submitted on her behalf that, following the approach of the House of Lords in Jennings , on a confiscation hearing in relation to benefit the prosecution must show personal benefit to the particular defendant against whom an order is sought, i.e. the value of the property obtained by him or her, rather than the value of what he or she may have helped others (including any corporate vehicle) to obtain. The applicant, a mere employee of the relevant companies in this case, cannot be regarded as having obtained any part of the payment made to the companies by the banks merely by virtue of her employment, in the absence of evidence of her obtaining as a result of the criminal activity (for example) a salary at a higher than market rate, or a level of expenses or other emoluments higher than employees not engaged in criminal conduct. A similar submission was successfully made to this court on an appeal by the applicant's co-accused against the confiscation order made at the same time against him ( R v Grainger [2008] EWCA Crim 2506 ). In the circumstances, the Crown accepts before us that it cannot properly oppose this appeal. 1. 1. For the reasons more fully set out in Grainger , we agree. In the circumstances we extend time so that the applicant is in time - by our calculation an extension of 11 months and 19 days -- and we grant permission to appeal. Given the limited factual basis on which the prosecution presented its case on confiscation and given that this court is not a court of review, we do not have the relevant primary facts upon which we could make any finding with regard to benefit the applicant may have obtained. In the circumstances, as the Crown concedes, the appeal must be allowed and the confiscation order quashed. We make an order in those terms.

```yaml citation: '[2009] EWCA Crim 955' date: '2009-04-28' judges: - LORD JUSTICE AIKENS - MR JUSTICE HEDLEY - MR JUSTICE HICKINBOTTOM ```

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Neutral Citation Number: [2012] EWCA Crim 2 Case No: 2011/04258/C3 (1) 2011/03081/D1 (2) 2011/03115/C3 (3) IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM: (1)HH JUDGE SMITH (READING CC); (2) HH JUDGE METTYEAR (3) MR JUSTICE LLOYD JONES (1) T2010/7430; (2) T2010/7390-1; (3) T2010/7399 Royal Courts of Justice Strand, London, WC2A 2LL Date: 17/01/2012 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE HENRIQUES and MRS JUSTICE GLOSTER DBE - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - v - Clinton (1) Appellant And R Respondent -v- Parker (2) Appellant And R Respondent -v- Evans (3) Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M Birnbaum QC for Clinton (1) W Harbage QC for Parker (2) C Clee QC for Evans (3) A Edis QC for the Crown Hearing date: 25 th October 2011 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales: Introduction 1. The difficulties of giving consistent effect to section 3 of the Homicide Act 1957 , which encapsulated in statutory form the common law defence of provocation, were notorious. As Professor David Ormerod observes in Smith & Hogan’s, Criminal Law, 13 th Edition, “For the appellate courts to fluctuate so often and so significantly on the interpretations of a defence in cases of such seriousness led to confusion and presented a disappointing spectacle”. This measured criticism is entirely justified. With effect from 4 October 2010 section 3 of the 1957 Act ceased to have effect. The ancient common law defence of provocation, reducing murder to manslaughter, was abolished and consigned to legal history books. 2. It was replaced by sections 54 and 55 of the Coroners and Justice Act 2009 ( the 2009 Act ) which created a new partial defence to murder, “loss of control”. Just because loss of control was an essential ingredient of the old provocation defence, the name is evocative of it. It therefore needs to be emphasised at the outset that the new statutory defence is self-contained. Its common law heritage is irrelevant. The full ambit of the defence is encompassed within these statutory provisions. Unfortunately there are aspects of the legislation which, to put it with appropriate deference, are likely to produce surprising results. 3. In order to enlighten our understanding our attention was drawn to different passages in the Report of the Law Commission (Report No. 290, Partial Defence as to Murder (2004), the Law Commission Consultation Paper No. 177, A New Homicide Act for England (2005) and the Law Commission Report No. 304 ( Murder, Manslaughter and Infanticide (2006). In July 2008 the Ministry of Justice issued its consultation paper in response to these recommendations, Murder, Manslaughter and Infanticide; proposals for reform of the law . Although the title of the Law Commission Report was adopted, its contents were selectively chosen. Looked at overall, the legislation does not sufficiently follow the recommendations of the Law Commission to enable us to discern any close link between the views and recommendations of the Law Commission and the legislation as enacted. 4. In these appeals the main focus of our attention is the controversial provision which relates to the impact on the “loss of control” defence of what is described as “sexual infidelity”. We looked, de bene esse, at the debates in Parliament prior to the enactment. Even on the most generous interpretation of Pepper v Hart , the debates did not reveal anything which assisted in the process of legislative construction. So we must ascertain the meaning of these provisions from their language. As we shall explain, however, the conclusion we have reached is consistent not only with the views which would have been expressed by those who were opposed to this provision in its entirety, but also with the views expressed by ministers responsible for the legislation during its passage through Parliament. The convictions 5. These are appeals against conviction for murder by: (a) Jon-Jacques Clinton was born in 1965. On 15 th November 2010 he killed his wife, Dawn Clinton, then aged 33 years, in the family home in Bracknell. On 23 rd May 2011, in the Crown Court at Reading before Her Honour Judge Smith, he was convicted of murder and arson. On the following day he was sentenced to imprisonment for life on count 1, with a specified minimum term of 26 years, less 187 days, for murder and to 2 years imprisonment concurrent on count 2. The verdict was returned by the jury after considering the partial defence of diminished responsibility. Judge Smith ruled that there was insufficient evidence of loss of control for that issue to be considered by the jury. The correctness or otherwise of this decision forms the basis for the present appeal. (b) On 26 th October 2010 Stephen Parker killed his wife, Jane Parker, in the family home in …. On 9 th May 2011, in the Crown Court at Hull before His Honour Judge Mettyear, the jury rejected the loss of control defence and convicted him of murdering his wife. He was sentenced to imprisonment for life. The specified minimum term was 17 years, less 196 days. (c) Dewi Evans killed his wife … on 11 th November 2010 in the matrimonial home in South Wales. On 29 th June 2011, in the Crown Court at Swansea before Mr Justice Lloyd Jones, again, the jury rejected the loss of control defence and he was convicted of murdering his wife. He was sentenced to imprisonment for life, with a minimum specified term of 11 years, less 248 days. The legislation The “loss of control” defence 6. Section 54 of the 2009 Act provides: “ Partial Defence to Murder: loss of control (1) Where a person (“D”) kills or is party to the killing of another (“V”), D is not to be convicted of murder if – (a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control, (b) the loss of self-control had a qualifying trigger, and (c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. (2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden. (3) In subsection 1(c) the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint. (4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. (5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. (6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. (7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter. (8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it. ” 7. Section 55 provides: “ Meaning of “qualifying trigger” (1) This section applies for the purposes of section 54 . (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. (3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person. (4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which – (a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged. (5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4). (6) In determining whether a loss of self-control had a qualifying trigger – (a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; (b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence; (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded. (7) In this section references to “D” and “V” are to be construed in accordance with section 54 .” 8. This is the “loss of control” defence in its entirety. Its components are set out in section 54(1) , as amplified in section 55 . There is however a further reference in the 2009 Act to the concept of loss of control. Section 2 of the Homicide Act 1957 , which dealt with the diminished responsibility defence, has been replaced by section 52 of the 2009 Act and, as with the law relating to provocation, the ingredients of the defence have changed. Its potential relevance to the issues under discussion is readily identified. There are cases, and Clinton was one, where the defences of loss of control and diminished responsibility will be raised in the same proceedings. The defence arises from an abnormality of mental functioning which “… (b) substantially impaired D’s ability to do one or more of the things mentioned in sub-section (1a) and … (1A) those things are - (a) to understand the nature of D’s conduct; (b) to form a rational judgment; (c) to exercise self-control. …” 9. The first feature of section 54 is that it identifies three statutory components (or ingredients) to the “loss of control” defence. We begin by emphasising that each is integral to it. If one is absent, the defence fails. It is therefore inevitable that the components should be analysed sequentially and separately. However, it is worth emphasising that in many cases where there is a genuine loss of control, the remaining components are likely to arise for consideration simultaneously or virtually so, at or very close to the moment when the fatal violence is used. Further, the discussion will proceed in terms which suggest that the defendant seeking to advance the loss of control defence is not always male. This is because experience shows that women as well as men kill when they have lost self control. In the legislation no special provision is made for the gender of the killer. Finally, by way of introduction, we do not overlook that the burden of disproof is on the prosecution. The first component 10. For present purposes, subsection 1(a), which addresses the first ingredient, is self explanatory. The killing must have resulted from the loss of self control. The loss of control need not be sudden, but it must have been lost. That is essential. Before reaching the second ingredient, the qualifying trigger, there is a further hurdle, that the defendant must not have been acting in a “considered” desire for revenge. The possible significance of “considered” arises in the appeal of Evans . In the broad context of the legislative structure, there does not appear to be very much room for any “considered” deliberation. In reality, the greater the level of deliberation, the less likely it will be that the killing followed a true loss of self control. The second component 11. The qualifying trigger provisions are self contained in section 55 . There is no point in pretending that the practical application of this provision will not create considerable difficulties. Sections 55(3) and (4) define the circumstances in which a qualifying trigger may be present. The statutory language is not bland. In section 55(3) it is not enough that the defendant is fearful of violence. He must fear serious violence. In subsection (4)(a) the circumstances must not merely be grave, but extremely so. In subsection (4)(b) it is not enough that the defendant has been caused by the circumstances to feel a sense of grievance. It must arise from a justifiable sense not merely that he has been wronged, but that he has been seriously wronged. By contrast with the former law of provocation, these provisions, as Mr Michael Birnbaum QC, on behalf of Clinton submitted, have raised the bar. We have been used to a much less prescriptive approach to the provocation defence. 12. Mr Birnbaum submitted, and we think correctly, that the defendant himself must have a sense of having been seriously wronged. However even if he has, that is not the end of it. In short, the defendant cannot invite the jury to acquit him of murder on the ground of loss of control because he personally sensed that he had been seriously wronged in circumstances which he personally regarded as extremely grave. The questions whether the circumstances were extremely grave, and whether the defendant’s sense of grievance was justifiable, indeed all the requirements of section 55(4)(a) and (b), require objective evaluation. 13. The process of objective evaluation in each individual case is hugely complicated by the prohibitions in section 55(6) which identifies a number of features which are expressly excluded from consideration as qualifying triggers. Thus the defendant, who, looking for trouble to the extent of inciting or exciting violence loses his control, does not qualify. In effect self induced loss of control will not run. The most critical problem, however, which lies at the heart of the Clinton appeal, is subsection 6(c), “sexual infidelity”. 14. This provision was described by Mr Andrew Edis QC, who acted for the prosecution in each of the appeals, as a “formidably difficult provision”: so indeed it is. On the face of the statutory language, however grave the betrayal, however humiliating, indeed however provocative in the ordinary sense of the word it may be, sexual infidelity is to be disregarded as a qualifying trigger. Nevertheless, other forms of betrayal or humiliation of sufficient gravity may fall within the qualifying triggers specified in section 55(4) . What, therefore, is the full extent of the prohibition? 15. We highlight some of the matters raised in argument to illustrate some of the potential problems. This list is not comprehensive. The forensic analysis could have gone on much longer, and so, for that matter, could this judgment. 16. We immediately acknowledge that the exclusion of sexual infidelity as a potential qualifying trigger is consistent with the concept of the autonomy of each individual. Of course, whatever the position may have been in times past, it is now clearly understood, and in the present context the law underlines, that no one (male or female) owns or possesses his or her spouse or partner. Nevertheless daily experience in both criminal and family courts demonstrates that the breakdown of relationships, whenever they occur, and for whatever reason, is always fraught with tension and difficulty, with the possibility of misunderstanding and the potential for apparently irrational fury. Meanwhile experience over many generations has shown that, however it may become apparent, when it does, sexual infidelity has the potential to create a highly emotional situation or to exacerbate a fraught situation, and to produce a completely unpredictable, and sometimes violent response. This may have nothing to do with any notional “rights” that the one may believe that he or she has over the other, and often stems from a sense of betrayal and heartbreak, and crushed dreams. 17. Mr Birnbaum drew attention to and adopted much of the illuminating and critical commentary by Professor Ormerod at pp.520-522 in Smith and Hogan’s Criminal Law. To begin with, there is no definition of “sexual infidelity”. Who and what is embraced in this concept? Is sexual infidelity to be construed narrowly so as to refer only to conduct which is related directly and exclusively to sexual activity? Only the words and acts constituting sexual activity are to be disregarded: on one construction, therefore, the effects are not. What acts relating to infidelity, but distinguishable from it on the basis that they are not “sexual”, may be taken into account? Is the provision directly concerned with sexual infidelity, or with envy and jealousy and possessiveness, the sort of obsession that leads to violence against the victim on the basis expressed in the sadly familiar language, “if I cannot have him/her, then no one else will/can”? The notion of infidelity appears to involve a relationship between the two people to which one party may be unfaithful. Is a one-night-stand sufficient for this purpose? 18. Take a case like R v Stingel [1990] 171 CLR 312 , an Australian case where a jealous stalker, who stabbed his quarry when he found her, on his account, having sexual intercourse. He does not face any difficulty with this element of the offence, just because, so far as the stalker was concerned, there was no sexual infidelity by his victim at all. Is the jealous spouse to be excluded when the stalker is not? In R v Tabeel Lewis … an 18 year old Jehovah’s Witness killed his lover, a 63 year old co-religionist, because on one view, he was ashamed of the consequences, if she carried out her threat to reveal their affair to the community. She was not sexually unfaithful to him, but he killed her because he feared that she would betray him, not sexually, but by revealing their secret. Mr Birnbaum asked rhetorically, why should the law exclude one kind of betrayal by a lover but not another? 19. Mr Edis agreed that “sexual infidelity” is not defined. He suggested that its ambit is not confined to “adultery” and that no marriage or civil partnership ceremony or any formal arrangement is required to render the violent reaction of the defendant to the sexual infidelity of the deceased impermissible for the purposes of a qualifying trigger. He suggested however that the concept of “infidelity” involves a breach of mutual understanding which is to be inferred within the relationship, as well as any of the more obvious expressions of fidelity, such as those to be found in the marriage vows. Notwithstanding their force, these considerations do not quite address the specific requirement that the infidelity to be disregarded must be “sexual” infidelity. The problem was illustrated when Mr Edis postulated the example of a female victim who decided to end a relationship and made clear to her former partner that it was at an end, and whether expressly or by implication, that she regarded herself as free to have sexual intercourse with whomsoever she wanted. After the end of the relationship, any such sexual activity could not sensibly be called “infidelity”. If so, for the purposes of any qualifying trigger, it would not be caught by the prohibition in section 55(6)(c) . In such a case the exercise of what Mr Edis described as her sexual freedom might possibly be taken into account in support of the defence, if she was killed by her former partner, whereas, if notwithstanding her disillusionment with it, she had attempted to keep the relationship going, while from time to time having intercourse with others, it could not. 20. Mr Birnbaum and Mr Edis could readily have identified a large number of situations arising in the real world which, as a result of the statutory provision, would be productive of surprising anomalies. We cannot resolve them in advance. Whatever the anomalies to which it may give rise, the statutory provision is unequivocal: loss of control triggered by sexual infidelity cannot, on its own, qualify as a trigger for the purposes of the second component of this defence. This is the clear effect of the legislation. 21. The question however is whether it is a consequence of the legislation that sexual infidelity is similarly excluded when it may arise for consideration in the context of another or a number of other features of the case which are said to constitute an appropriate permissible qualifying trigger. The issue is complex. 22. To assist in its resolution, Mr Edis drew attention to the formal guidance issued by the Crown Prosecution Service on this issue. This provides that “it is the issue of sexual infidelity that falls to be disregarded under sub-section (6)(c). However certain parts of the case may still amount to a defence under section 55(4) ”. The example is given of the defendant who kills her husband because he has raped her sister (an act of sexual infidelity). In such a case the act of sexual infidelity may be disregarded and her actions may constitute a qualifying trigger under section 55(4) . 23. This example is interesting as far as it goes, and we understand it to mean that the context in which sexual infidelity may arise may be relevant to the existence of a qualifying trigger, but in truth it is too easy. Any individual who witnesses a rape may well suffer temporary loss of control in circumstances in which a qualifying trigger might well be deemed to be present, although in the case of a rape of a stranger, insufficient to cause the defendant to have a sense of being seriously wronged personally. A much more formidable and difficult example would be the defendant who kills her husband when she suddenly finds him having enthusiastic, consensual sexual intercourse with her sister. Taken on its own, the effect of the legislation is that any loss of control consequent on such a gross betrayal would be totally excluded from consideration as a qualifying trigger. Let us for the purposes of argument take the same example a little further. The defendant returns home unexpectedly and finds her spouse or partner having consensual sexual intercourse with her sister (or indeed with anyone else), and entirely reasonably, but vehemently, complains about what has suddenly confronted her. The response by the unfaithful spouse or partner, and/or his or her new sexual companion, is to justify what he had been doing, by shouting and screaming, mercilessly taunting and deliberately using hurtful language which implies that she, not he, is responsible for his infidelity. The taunts and distressing words, which do not themselves constitute sexual infidelity, would fall to be considered as a possible qualifying trigger. The idea that, in the search for a qualifying trigger, the context in which such words are used should be ignored represents an artificiality which the administration of criminal justice should do without. And if the taunts by the unfaithful partner suggested that the sexual activity which had just been taking place was infinitely more gratifying than any earlier sexual relationship with the defendant, are those insults – in effect using sexual infidelity to cause deliberate distress - to be ignored? On the view of the legislation advanced for our consideration by Mr Edis, they must be. Yet, in most criminal cases, as our recent judgment in the context of the riots and public order demonstrates, context is critical. 24. We considered the example of the wife who has been physically abused over a long period, and whose loss of self control was attributable to yet another beating by her husband, but also, for the first time, during the final beating, taunts of his sexual activities with another woman or other women. And so, after putting up with years of violent ill-treatment, what in reality finally caused the defendant’s loss of control was hurtful language boasting of his sexual infidelity. Those words were the final straw. Mr Edis invited us to consider (he did not support the contention) whether, on a narrow interpretation of the statutory structure, if evidence to that effect were elicited (as it might, in cross-examination), there would then be no sufficient qualifying trigger at all. Although the persistent beating might in a different case fall within the provisions for qualifying triggers in section 55(4)(a) and (b), in the case we are considering, the wife had endured the violence and would have continued to endure it but for the sudden discovery of her husband’s infidelity. On this basis the earlier history of violence, as well as the violence on the instant occasion, would not, without reference to the claims of sexual infidelity, carry sufficient weight to constitute a qualifying trigger. Yet in the real world the husband’s conduct over the years, and the impact of what he said on the particular occasion when he was killed, should surely be considered as a whole. 25. We addressed the same issue in discussion about the impact of the words “things said” within subsection 55(6)(c). Everyone can understand how a thing done may constitute sexual infidelity, but this argument revolved around finding something “said” which “constituted” sexual infidelity. Mr Edis accepted that no utterance, as such, could constitute sexual infidelity, at any rate as narrowly construed. Professor Ormerod suggests the example of a defendant hearing a wife say to her lover, “I love you”. On close examination, this may or may not provide evidence of sexual infidelity. However it does not necessarily “constitute” it, and whether it does or not depends on the relationship between the parties, and the person by whom and to whom and the circumstances in which the endearment is spoken. It may constitute a betrayal without any sexual contact or intention. Mr Birnbaum raised another question. He pointed out that in the case of Clinton, Mrs Clinton confessed to having had an affair on the day before she was killed, but earlier she boasted that she had had sex with five men. If the boast, intended to hurt, was simply untrue, how could those words “constitute” infidelity? 26. We are required to make sense of this provision. It would be illogical for a defendant to be able to rely on an untrue statement about the victim’s sexual infidelity as a qualifying trigger in support of the defence, but not on a truthful one. Equally, it would be quite unrealistic to limit its ambit to words spoken to his or her lover by the unfaithful spouse or partner during sexual activity. In our judgment things “said” includes admissions of sexual infidelity (even if untrue) as well as reports (by others) of sexual infidelity. Such admissions or reports will rarely if ever be uttered without a context, and almost certainly a painful one. In short, the words will almost invariably be spoken as part of a highly charged discussion in which many disturbing comments will be uttered, often on both sides. 27. We must briefly return to the second example suggested by Professor Ormerod, that is the defendant telling his spouse or partner that he or she loves someone else. As we have said, this may or may not provide evidence of sexual infidelity. But it is entirely reasonable to assume that, faced with such an assertion, the defendant will ask who it is, and is likely to go on to ask whether they have already had an affair. If the answer is “no” there would not appear to be any sexual infidelity. If the answer is “yes”, then obviously there has been. If the answer is “no”, but it is perfectly obvious that the departing spouse intends to begin a full relationship with the new partner, would that constitute sexual infidelity? And is there a relevant distinction between the defendant who believes that a sexual relationship has already developed, and one who believes that it has not, but that in due course it will. Situations arising from overhearing the other party to a relationship saying “I love you”, or saying to the defendant, “I love someone else”, simple enough words, will give rise to manifold difficulties in the context of the prohibition on sexual infidelity as a qualifying trigger. 28. This discussion of the impact of the statutory prohibition in section 55(6)(c) arises, we emphasise, in the context, not of an academic symposium, but a trial process in which the defendant will be entitled to give evidence. There is no prohibition on the defendant telling the whole story about the relevant events, including the fact and impact of sexual infidelity. To the contrary: this evidence will have to be considered and evaluated by the jury. That is because notwithstanding that sexual infidelity must be disregarded for the purposes of the second component if it stands alone as a qualifying trigger, for the reasons which follow it is plainly relevant to any questions which arise in the context of the third component, and indeed to one of the alternative defences to murder, as amended in the 2009 Act , diminished responsibility. 29. We shall return to the question whether, notwithstanding that it must be disregarded if it is the only qualifying trigger, a thing done or said which constitutes sexual infidelity is properly available for consideration in the course of evaluating any qualifying trigger which is not otherwise prohibited by the legislation. The third component 30. Assuming that the qualifying trigger is present, the defence is still not complete. We must return from section 55 to section 54 (1)(c). This third ingredient is related to the requirement, that even faced with situations which may amount to a qualifying trigger, the defendant is nevertheless expected to exercise a degree of self control. For this purpose the age and sex of the defendant is relevant. Perhaps a very immature defendant will be less likely to be able to exercise the self control which might be exercised by an adult. The defendant’s reaction (that is what he actually did, rather than the fact that he lost his self control) may therefore be understandable in the sense that another person in his situation and the circumstances in which he found himself, might have reacted in the same or in a similar way. 31. For present purposes the most significant feature of the third component is that the impact on the defendant of sexual infidelity is not excluded. The exclusion in section 55(6)(c) is limited to the assessment of the qualifying trigger. In relation to the third component, that is the way in which the defendant has reacted and lost control, “the circumstances” are not constrained or limited. Indeed, section 54(3) expressly provides that reference to the defendant’s circumstances extends to “all” of the circumstances except those bearing on his general capacity for tolerance and self-restraint. When the third component of the defence is examined it emerges that, notwithstanding section 55(6)(c) , account may, and in an appropriate case, should be taken of sexual infidelity. 32. We must reflect briefly on the directions to be given by the judge to the jury. On one view they would require the jury to disregard any evidence relating to sexual infidelity when they are considering the second component of the defence, yet, notwithstanding this prohibition, would also require the same evidence to be addressed if the third component arises for consideration. In short, there will be occasions when the jury would be both disregarding and considering the same evidence. That is, to put it neutrally, counter intuitive. Diminished responsibility 33. The situation for the jury, and the judge, is yet further complicated if and when, as sometimes happens, the defence is inviting the jury to consider possible verdicts of manslaughter both on the grounds of loss of control and diminished responsibility. If the defendant is suffering from a recognised medical condition, for example, serious and chronic depression, the discovery that a partner has been sexually unfaithful may, and often will be said to, impair the defendant’s ability to form a rational judgment and exercise self control. This situation is not all that uncommon. It arose in Clinton where one of the psychiatrists suggested that if Clinton was telling the truth, the effect of his “depressed state” would have been that he would have been more likely to lose self control following his wife’s graphic account of sexual activity with other men and her taunts that he lacked the courage to commit suicide. Sexual infidelity may therefore require consideration when the jury is examining the diminished responsibility defence even when it has been excluded from consideration as a qualifying trigger for the purposes of the loss of control defence. Sexual infidelity – conclusion 34. We must now address the full extent of the prohibition against “sexual infidelity” as a qualifying trigger for the purposes of the loss of control defence. The question is whether or not sexual infidelity is wholly excluded from consideration in the context of features of the individual case which constitute a permissible qualifying trigger or triggers within section 55(3) and (4). 35. We have examined the legislative structure as a whole. The legislation was designed to prohibit the misuse of sexual infidelity as a potential trigger for loss of control in circumstances in which it was thought to have been misused in the former defence of provocation. Where there is no other potential trigger, the prohibition must, notwithstanding the difficulties identified earlier in the judgment, be applied. 36. The starting point is that it has been recognised for centuries that sexual infidelity may produce a loss of control in men, and, more recently in women as well as men who are confronted with sexual infidelity. The exclusion created by section 55(6) cannot and does not eradicate the fact that on occasions sexual infidelity and loss of control are linked, often with the one followed immediately by the other. Indeed on one view if it did not recognise the existence of this link, the policy decision expressly to exclude sexual infidelity as a qualifying trigger would be unnecessary. 37. In section 54(1)(c) and (3) the legislation further acknowledges the impact of sexual infidelity as a potential ingredient of the third component of the defence, when all the defendant’s circumstances fall for consideration, and when, although express provision is made for the exclusion of some features of the defendant’s situation, the fact that he/she has been sexually betrayed is not. In short, sexual infidelity is not subject to a blanket exclusion when the loss of control defence is under consideration. Evidence of these matters may be deployed by the defendant and therefore the legislation proceeds on the basis that sexual infidelity is a permissible feature of the loss of control defence. 38. The ambit of section 55(3) and (4) – the second component, the qualifying triggers – is clearly defined. Any qualifying trigger is subject to clear statutory criteria. Dealing with it broadly, to qualify as a trigger for the defendant’s loss of control, the circumstances must be extremely grave and the defendant must be subject to a justifiable sense of having been seriously wronged. These are fact specific questions requiring careful assessment, not least to ensure that the loss of control defence does not have the effect of minimising the seriousness of the infliction of fatal injury. Objective evaluation is required and a judgment must be made about the gravity of the circumstances and the extent to which the defendant was seriously wronged, and whether he had a justifiable sense that he had been seriously wronged. 39. Our approach has, as the judgment shows, been influenced by the simple reality that in relation to the day to day working of the criminal justice system events cannot be isolated from their context. We have provided a number of examples in the judgment. Perhaps expressed most simply, the man who admits, “I killed him accidentally”, is never to be treated as if he had said “I killed him”. That would be absurd. It may not be unduly burdensome to compartmentalise sexual infidelity where it is the only element relied on in support of a qualifying trigger, and, having compartmentalised it in this way, to disregard it. Whether this is so or not, the legislation imposes that exclusionary obligation on the court. However, to seek to compartmentalise sexual infidelity and exclude it when it is integral to the facts as a whole is not only much more difficult, but is unrealistic and carries with it the potential for injustice. In the examples we have given earlier in this judgment, we do not see how any sensible evaluation of the gravity of the circumstances or their impact on the defendant could be made if the jury, having, in accordance with the legislation, heard the evidence, were then to be directed to excise from their evaluation of the qualifying trigger the matters said to constitute sexual infidelity, and to put them into distinct compartments to be disregarded. In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it. 40. We have proceeded on the assumption that legislation is not enacted with the intent or purpose that the criminal justice system should operate so as to create injustice. We are fortified in this view by the fact that, although the material did not assist in the construction of section 55(6)(c) , our conclusion is consistent not only with the views expressed in Parliament by those who were opposed in principle to the enactment of section 55(6)(c) but also with the observations of ministers who supported this limb of the legislation. 41. Thus, for example, on 3 March 2009, Angela Eagle, speaking for the Government, said that the Government did not believe that “sexual infidelity ought to be a sufficient reason to reduce a murder charge to a finding of manslaughter … we do not accept that that itself ought to lead to reducing a murder finding …” (our emphasis). 42. On 9 November 2009, Claire Ward, speaking for the Government, said that the Government did not think it appropriate in this day and age “for a man to be able to say that he killed his wife as a result of sexual infidelity … if other factors come into play, the court will of course have an opportunity to consider them, but it will not be able to make the decision exclusively on the ground of sexual infidelity”. Answering a later question, she observed that the court would not be able to “take into account a set of circumstances in which the defendant killed someone in an attempt to punish … them or carry out some form of revenge purely as a result of sexual infidelity”. Later still she said “We are simply saying that sexual infidelity in itself cannot and should not be … a defence for murder”. Yet later she spoke of how important it was in relation to sexual infidelity “to set out the position precisely and uncompromisingly – namely that sexual infidelity is not the kind of thing done that is ever sufficient on its own to found a successful plea of loss of control”. Later she observed: “If something else is relied on as the qualifying trigger, any sexual infidelity that forms part of the background can be considered, but it cannot be the trigger”. (Our emphasis). This was the consistent pattern of her observations. 43. In the House of Lords, Lord Bach on 26 October 2009, speaking for the Government, invited opponents of the prohibition in section 55(6)(c) to explain “why they consider that, when one person kills another, the fact that the deceased had been unfaithful to their killer should ever be enough …”. Shortly afterwards, on 11 November 2009, he suggested that opponents of the provision were implicitly arguing that the defendant “should be able to make out a partial defence based on sexual infidelity, in and of itself , on the part of the victim. We simply do not agree…” (Our emphasis.) 44. Our approach to the legislative structure is entirely consistent with these responses. The responsibilities of the judge (a) at the conclusion of the evidence 45. One of the responsibilities the trial judge in the context of the new defence is defined. Unless there is evidence sufficient to raise the issue of loss of control it should be withdrawn from consideration by the jury. If there is, then the prosecution must disprove it. In this context “sufficient evidence” is explained by reference to well understood principles, that is, that a properly directed jury could “reasonably conclude that the defence might apply”. In reaching this decision the judge is required to address the ingredients of the defence, as defined in section 54 and further amplified in section 55 . There must be sufficient evidence to establish each of the ingredients defined in subsections 54(1)(a),(b) and (c), and this carries with it, evidence which satisfies the test in subsections 55(4)(a) and (b). In making the decision in accordance with the principles identified in this judgment the judge must exclude the specific matters which might otherwise be regarded as constituting possible justification in section 55(c)(b) and the express conditions to be disregarded in accordance with section 55(6)(a) and (c). In the end however, although the judge must bear these different features in mind when deciding whether the case should be left to the jury, and the task is far from straightforward, these statutory provisions reflect well established principles summarised in the phrase “the evidential burden”. Sufficient evidence must be adduced to enable the judgment to be made that a jury could reasonably decide that the prosecution had failed to negate the defence of loss of control. 46. This requires a common sense judgment based on an analysis of all the evidence. To the extent that the evidence may be in dispute, the judge has to recognise that the jury may accept the evidence which is most favourable to the defendant, and reject that which is most favourable to the prosecution, and so tailor the ruling accordingly. That is merely another way of saying that in discharging this responsibility the judge should not reject disputed evidence which the jury might choose to believe. Guiding himself or herself in this way, the more difficult question which follows is the judgment whether the circumstances were sufficiently grave and whether the defendant had a justifiable grievance because he had been seriously wronged. These are value judgments. They are left to the jury when the judge concludes that the evidential burden has been satisfied. 47. When exercising these responsibilities, the judge is not, where there is no sufficient evidence to leave the loss of control defence to the jury, directing a conviction in the sense prohibited in Wang [2005] 1WLR 66 . The statutory provision is clear. If there is evidence on which the jury could reasonably conclude that the loss of control defence might apply, it must be left to the jury: if there is no such evidence, then it must be withdrawn. Thereafter in accordance with the judge’s directions the jury will consider and return its verdict. 48. The appeals of Clinton and Parker highlight these difficulties. In Clinton the defence was not left to the jury and it is argued that it should have been. In Parker the defence was left to the jury, and certainly had the prosecution suggested that the defence should be withdrawn, the judge might have felt it necessary to withdraw it from the jury. (b) The Summing Up 49. Confining ourselves to the second component (the qualifying trigger or triggers under section 55 ), for the reasons already given, if the only potential qualifying trigger is sexual infidelity, effect must be given to the legislation. There will then be no qualifying trigger, and the judge must act accordingly. The more problematic situations will arise when the defendant relies on an admissible trigger (or triggers) for which sexual infidelity is said to provide an appropriate context (as explained in this judgment) for evaluating whether the trigger relied on is a qualifying trigger for the purposes of subsection 55(3) and (4). When this situation arises the jury should be directed: a) as to the statutory ingredients required of the qualifying trigger or triggers; b) as to the statutory prohibition against sexual infidelity on its own constituting a qualifying trigger; c) as to the features identified by the defence (or which are apparent to the trial judge) which are said to constitute a permissible trigger or triggers; d) that, if these are rejected by the jury, in accordance with (b) above sexual infidelity must then be disregarded; e) that if, however, an admissible trigger may be present, the evidence relating to sexual infidelity arises for consideration as part of the context in which to evaluate that trigger and whether the statutory ingredients identified in (a) above may be established. Jon-Jacques Clinton 50. We shall summarise the facts very briefly, and then describe them in much greater detail. Mr and Mrs Clinton had lived together for 16 years. They had two children of school age. They married in 2001. Two weeks before her death, the appellant’s wife had left him and the children of the family as they began what was described as a trial separation. She went to live with her parents. The couple continued to spend time together with the children as a family, and their mother would return to the family home to look after them on their return from school until the appellant returned home from work. 51. Mrs Clinton spent time in the family home on Saturday 13 th November, and they went swimming and ate dinner together as a family on the next day. On that day Mrs Clinton told the appellant that she was having an affair. 52. That evening Mrs Clinton’s Land Rover or Jeep (her most treasured possession) was stolen from outside her parent’s home. On the following morning it was found in a burnt out condition. The jury was satisfied that the appellant was responsible for the removal and damage to the car. He was contacted by the police on the morning when the vehicle was found. He went over to see Mrs Clinton at her parent’s home to tell her of the incident, and during a brief visit, arrangements were made for her to return to the family home to collect insurance documents relating to the vehicle. During the morning the appellant consumed drink and drugs, including a large amount of Codeine and he searched websites containing material dealing with suicide. 53. Mrs Clinton was dropped at the family home by her mother at about 14.00 hours. When her mother returned at 15.40 she found that the curtains were drawn and the door was barricaded. Police attended at about 17.10. They forced the front door. They found the body of Mrs Clinton on the living room floor semi naked. She had obvious head injuries. There was a ligature around her neck. She was pronounced dead. The appellant was found in the loft with a noose around his neck attached to the rafters. 54. The deceased had been beaten about the head with a wooden baton, strangled with a belt, and then a piece of rope had been tightened around her neck with the aid of the wooden baton. There were defensive injuries. The cause of death was head injury and asphyxia caused by a ligature compression of the neck. After he had killed her the appellant removed most of her clothes and having put her body into a number of different poses, took photographs of it and then sent text messages to Mr Montgomery, the man with whom she was having a relationship. 55. The prosecution case was that the appellant had set fire to the Land Rover out of spite and then, incensed when he found out that she was conducting an affair with another man, he had confronted her at the family home in the afternoon of 15 th November. He had planned to kill her before she arrived at the house and had made preparations to do so. During the confrontation he beat her and strangled her to death. At a plea and case management hearing the appellant pleaded guilty to manslaughter, but not guilty to murder. Although responsible for his wife’s death, either on the basis of “loss of control” or “diminished responsibility”, he was not guilty of murder. 56. We shall narrate the facts in more detail. 57. By the autumn of 2010 the couple were seriously overdrawn at the bank and dependent on Mrs Clinton’s earnings once the overdraft limit had been reached, as it normally was, by the middle of the month. The appellant had a history of depression for which he was prescribed medication and Mrs Clinton herself was prescribed anti-depressants. Their teenage children gave evidence of some of the tensions between them. By mid-September 2010, via Facebook, Mrs Clinton had come to know another man. A relationship developed between them. 58. In early November Mrs Clinton moved out of the family home to the home of her mother, leaving the children in the family home. After her departure there was evidence that the appellant’s behaviour became more erratic. The appellant was desperate for his marriage to work, and eventually become “obsessional” about it. He mentioned to the mutual friend on 12 th November in an email his suspicions that his wife was having an affair. She was worried that he would try and kill himself. On 13 th November he indicated that his son had told him that his wife had put an entry on her Facebook page which read “bollocks to it all”. On the following day they went swimming together and that evening the vehicle was stolen from outside Mrs Clinton’s mother’s home. The following morning it was found, significantly damaged. The appellant expressed concerns about how his wife would react to the news of the fire. Together with a police officer he went to her mother’s home and saw her. He did not apologise for what had happened to the vehicle and, as we know, he was later to insist that he was not responsible. The evidence suggested that the appellant appeared to be concerned and gave his wife a hug. Indeed her mother said that he was all over her like a rash and kissing her, but, as her mother could see from her reaction, she did not want him. 59. Following earlier searches of suicide websites at the end of October, the appellant recommenced his searches on 14 th November continuing them through to the 15 th . Among the searches shown in a schedule before the jury there were entries referring to “sleeping pills” and “how to hang yourself” and “the best suicide methods”. From early in the morning of 15 th November he also accessed various sites including sites on which he and his wife had formerly posted photographs of themselves, his wife’s Facebook site, and a website which had been set up by Mr Montgomery called “Fast as Fuck”. At 12.10 he visited his wife’s Facebook site and at about 12.30 he returned to look at suicide sites. At 12.58 on 15 th November the appellant received a telephone call from his wife which lasted just over 1 minute 30 seconds. At 13.12 he composed a “note to everyone”. The Crown suggested that it showed an intention to kill himself and his wife, but his case was that it was a suicide note. At 13.31 he texted the mutual friend to say that he had asked his wife to come round “so we could tell the kids two bits of bad news”. He said that he had been drinking and had had a very bad night’s sleep. His voice was shaking and he sounded shattered and exhausted. She told him to calm down. He said that they would tell the children that the separation would be permanent. He was expecting his wife to arrive at 2 o’clock. 60. At 13.07 Mrs Clinton sent a text message to the appellant asking him to text the children to let them know he would collect them from school. He did this at 13.10. 61. Mrs Clinton’s mother dropped her off at the family home at about 2pm. At 14.24 the appellant sent a message to his daughter telling her that there had been a change of plan and they were to go to their Grandmother’s house. At 14.42 an unanswered telephone call was made from Mrs Clinton’s mobile phone to a man called Nick whose number was stored in her “contacts list” and text was sent to Mr Montgomery at 14.47 and 14.49 which read respectively “Cunt” and “It’s over”. At 15.20 a further text message from Mrs Clinton’s phone to Mr Montgomery comprised a jumble of letters which made no sense. By not later than 14.51 Mrs Clinton was dead. At that time and again at 14.59 explicit photographs of her naked body had been taken on her mobile phone. All this material was relied on in support of the Crown’s case that the appellant was acting out of a desire for revenge. 62. Following the visit by Mrs Clinton’s mother to the family home at about 3.40 the police were called and in due course forced the front door. They found Mrs Clinton’s body in the living room. We have described her injuries. They found the appellant in the loft with a rope round his neck attached to the rafters. He said “it’s the voices in my head”. His voice was slurred. He said he had been drinking all day. He said his children’s names were “cunt and cunt”. Following his arrest he told a doctor that he had taken 22 Cocodemal and 15 Phenagan tablets and that he wished he was dead. A subsequent toxicology report suggested that the drugs had been taken after the death of the deceased. 63. On “loss of control” the appellant’s evidence was critical. After dealing with background matters he said that from the end of 2009 financial difficulties had imposed a strain on the relationship between him and his wife. From March 2010 her interest in him and their children dwindled and he suggested that she had become “tarty” and “slutty” in her behaviour and there was increasing tension at home. He himself was much less tolerant and often angry. He had lost his libido. He felt a failure at work and was prone to tears. He suffered depression. He saw his doctor, and after taking medication, there was some improvement in the relationship. However by September she was drawing away from him and becoming angry with the children. At work things were “ramping up”. 64. On 30 th October Mrs Clinton told him she needed time out. They agreed on a trial separation for 4 weeks. He had searched suicide sites and was contemplating suicide as one option, and later “it became more serious”, although by 14 th November he still had some hope. When cross-examined he explained that Mrs Clinton had caught him looking at suicide sites and told him not to be stupid. She would only be gone for a month. She said that she needed time out of the relationship. She had been prescribed anti-depressant tablets herself. 65. On 13 th November they met and for the sake of the children discussed going to Relate. Although he didn’t think that she was genuine she had to go, and this gave him some hope. On the 14 th the family went swimming. On their return to the family home he showed her a note he had written on his computer. In the note he had said that he now knew that she would not be coming back which was something he had feared for a long time. He expressed a fear about how he and the children would manage when she had gone. He wrote “where will we live, how will we live”? It went on, “there is so much underneath in both of us just bubbling away your fear, mine, add our finances, my bullying, the kids getting a bit older, you wanting freedom, me getting suspicious … a lot of it is my fault but we both had our parts to play. We all need to move on now. Don’t we?” 66. He gave evidence that his wife told him about her affair. When she did so, she was upset and crying, and they agreed to meet the next week to discuss how they would tell the children. He realised that his marriage was over. 67. On 15 th November he obtained access to her Facebook, and he viewed Mr Montgomery’s website via a link from her website. After taking the children to school he “tortured himself” by looking at the photographs they had posted on the internet site and he visited Mrs Clinton’s Facebook site. He found messages containing sexual innuendos. She had made an entry on the date of their daughter’s birthday in February about wanting to be “poked”. Her “status” was shown as “separated” and “open to offers”. At about 12.30 he looked at some sexual images which confirmed that Mrs Clinton had been unfaithful to him. 68. By the time she arrived at the family home at about 14.00 he had taken 80mg of Codeine and about a quarter of a bottle of brandy. When she arrived he made a cup of tea. They sat on the sofa in the living room. She went to the kitchen for more milk and when she came back she was holding a piece of wood. She said “did you fucking do that to Fred?” They were both agitated. She was tearful. Although he knew what she had been doing he asked her what was going on and she said “there’s nothing going on. You’re fucking paranoid”. He then touched the cursor on the laptop and looked at her Face book page and said “how could you do that at half term and go shagging other people?” She became very spiteful and said “it should have been like that every day of the week” and that she had had sex with five different men. She gave details about the sexual activity saying that they had come inside her. The appellant said that this was deeply hurtful. 69. She asked him whether he had done the damage to Fred. He denied it. She came back to the room holding a piece of wood, which was kept in the house, and she asked again whether he’d damaged the car telling him to “tell me the truth now”. He stood up and said “how dare you fucking talk to me about the truth”, and he took the piece of wood off her. There was no struggle. She had just been pointing it at him. When he took it off her, that was quite easy. He was angry and hurt when she asked him to tell the truth because “for months he had been asking her to tell him the truth of what was going on”. He put the piece of wood down. She sat down. He went into the kitchen. While she was sitting down she was still a little bit agitated and so was he, and, in effect, for distraction purposes, he asked how her mother’s shoulder was. 70. They were sitting on the sofa. After some conversation about the police and the vehicle he said “look we need to discuss things”. He realised that the relationship was over. To say he was quite upset was an understatement. He had been open and honest with her, and he wanted her to be the same with him so that he could realise that it “wasn’t 17 years of a bloody sham”. So he asked her, as he’d asked her many times before what was going on. She said “nothing. I’ve told you before, “it’s you, you’re fucking paranoid. There is nothing going on.” With that he touched the cursor thing on the laptop and it showed her Face book page through their son’s log in. Her Face book page came up on the screen. He said “well it’s all there, you know. I’ve looked on it. I know what you’ve been up to. How could you leave them at half term, as you did, and go shagging other people leaving them?” With that she became, “very spiteful”. He had never seen her like that. It was “like she was another person”. She said either “it could have been” or “should have been everyday of the fucking week”. He took that to mean that there were “five different people, Monday to Friday”. He went on “like I say, I’ve never, ever, ever, ever seen her behave like that. She’s never – it was just pure – it was said with such pure hatred. I can’t explain it”. 71. At that point they stood up. He was getting angry but he didn’t want a confrontation. He wanted “a bit of open honesty so that he could make sense of what she was throwing away, why we were throwing away 17 years of a relationship”. 72. He walked towards the kitchen thinking that he would calm down and have a cigarette. He didn’t want the confrontation. As he was walking towards the kitchen she turned round and “started giving me some graphic details of sexual acts that had, in the past, formed part of our kind of role play stuff, about other men, her with other men, she wanted me to watch, etc. etc. – it was in a different context now and it wasn’t very nice, obviously, hearing your wife talking about up to 5 different people having sex with her. I didn’t want to go into detail, but it was very very graphic”. 73. He had never seen her like that before. She was “almost in a rage”. It seemed “to build up and up and up, it didn’t seem like she was going to stop this kind of thing.” “She was talking, more or less but in a much sort of gruffer, I guess deeper voice than she would do normally. So it wasn’t really a shout, but it was – I mean … she obviously raised her voice as she was giving me the graphics of it”. 74. He was asked how long this had gone on for and he said that he couldn’t rightly remember. He went into the kitchen, and after pouring another brandy and coke, and perhaps having a swig of Codeine he had a cigarette. He started smoking it. He didn’t want to go back into the living room because his wife was angry and he could feel that he was getting angry too. While he was in the kitchen there was no conversation. He took control of himself to calm down. He smoked a cigarette and had a drink to calm himself. 75. When he returned into the living room, there was some conversation about what they would tell the children. There was no point in carrying a conversation about her infidelity, “as much as it hurt me, we needed to talk about the children”. He told her that he was scared that he wouldn’t have enough money to feed them. He was concerned about finances. She “sort of sighed” and said something like “it won’t be fucking easy for me either”. He had never seen her talk like that before. He said “How could you do that on your daughter’s birthday?” He then realised he’s made a mistake in bringing the conversation back to her affairs, but he probably said it in response to her. He heard her kind of snigger. He was not looking at her and she was not looking at him. He heard her snigger and “sought of almost like laugh”, and then she said “you haven’t got the fucking bollocks”. I thought “what?” so I turned round and looked. “She’d gone on to one of the pages I’d minimised, suicide sites, the hanging rope”. She then went on “it would have been easier if you had, for all of us”. He never ever seen “my Dawnie like that”. He felt “useless, awful, confused and fearful. And then she became very angry saying that she’d done her bit with the children. She said “I didn’t fucking sign up for this. You have them. You look after them”. He said it was horrible. His wife was a different person “it was like she was somebody else”. With that the walls and the ceiling just seemed to close in. She was talking but he could not hear what she was saying. He could see her mouth opening and closing. He could hear a noise, like the distant sea. He wanted everything to stop. He wanted everything to slow down. He then reached out and grabbed the piece of wood. The attack on her followed. 76. At the conclusion of the evidence Judge Smith directed herself that there was no evidence that the loss of self-control necessary for the purposes of this defence was due to one of the qualifying triggers identified in the statute. She was required “specifically” to disregard anything said or done that constituted sexual infidelity. The remarks allegedly made by the wife, challenged about her infidelity, to the effect that she had intercourse with five men were to be ignored. Removing that element of that evidence, what was left was the evidence when the wife saw that the appellant had visited the suicide site on the internet, she commented that he had “not the balls to commit suicide” and that she also said, so far as the future was concerned, that he could have the children who were then currently living with him at their home. The judge observed that she could not see that the circumstances were of an extremely grave character or that they would cause the defendant to have a justifiable sense of being seriously wrong. On this issue no sufficient evidence had been adduced. She could not find that a jury properly directed could reasonably conclude that the defence might apply. In due course she proceeded to her summing up, leaving diminished responsibility for the consideration of the jury. 77. In addressing these problems, Judge Smith did not have the advantage of the careful and detailed submissions made to us by leading counsel on behalf of the appellant and the Crown. On the basis that the remarks made by the wife had to be disregarded, her conclusion that the defence should be withdrawn from the jury was unassailable. In context, it was a characteristically courageous decision. For the reasons we have endeavoured to explain in this judgment, we have concluded that she misdirected herself about the possible relevance of the wife’s infidelity. We have reflected whether the totality of the matters relied on as a qualifying trigger, evaluated in the context of the evidence relating to the wife’s sexual infidelity, and examined as a cohesive whole, were of sufficient weight to leave to the jury. In our judgment they were. Accordingly the appeal against conviction will be allowed. 78. In the circumstances of this case, we shall order a new trial. The issues should be examined by a jury. R v Steven Parker 79. The appellant and his wife, Jane, were both in their mid twenties at the date of her death. They had been in a relationship for some 10 years, and they were married for the last 4 years. They had three children together. 80. During their marriage the appellant had a number of affairs, and his wife had a brief sexual relationship with another man. The appellant was unaware of this until after her death. During the year prior to her death she had confided in close friends and family that she was unhappy in her marriage and was seeking to separate from the appellant. She planned to leave him after the October half-term holiday in 2010, although she had not told the appellant. 81. On the night of 26 th October 2010 in the course of an argument between them, he inflicted what was described as a “fat lip” on her. On the following afternoon while she was at an activity centre with her children, Mrs Parker sent a text message to the applicant who was at home. Ignoring the text language it reads as follows: “I’m sorry, Steve. I will always love you but you have hurt me too much now. I’ve never forgived you for Claire, so think it’s time for us to separate. Pack your stuff while I am here so kids don’t see it all. And I’ll drop car off in a bit for you to put your stuff in and go. Nothing you say or do will change my mind. x” 82. On leaving the activity centre her brother-in-law accompanied her to the matrimonial home. They arrived at the house between 15.54 and 15.58. Mrs Parker went into the house. The appellant locked the back door. Her brother-in-law was told to wait outside. Within a short period of her entering the house, the precise length of which was in dispute, Mrs Parker was attacked and repeatedly stabbed by the appellant. Her brother-in-law heard her screams and broke into the house. He wrestled the appellant off her and summoned the emergency services. Paramedics and the police arrived. 83. The deceased was found dead at the scene. It later emerged that the deceased had suffered 53 separate stab wounds to the body, which varied in severity, but also included 5 stab wounds to the neck, shoulder and face. There were superficial incised and stab wounds to the body, with defence incised wounds to the hands. The cause of death was blood loss from the stab wounds to the neck. 84. The appellant was arrested outside the house. After her brother-in-law had pulled him off Mrs Parker, he had become compliant with whatever he was told to do. He waited outside for the emergency services and on a number of occasions said he was very sorry for what had happened. He had scratches the length of his left arm which appeared to be self inflicted, and a heart and the initials JP (his wife’s initials) scratched onto his chest. 85. Investigating officers recovered a letter from the lounge floor addressed to Mrs Parker. In it the appellant declared his love and pleaded to her not to leave him. An open family photograph album and photographs were found on the bed in an upstairs bedroom. Two knives were recovered from the scene, a large kitchen knife and a shorter knife, the tip of which was missing, which was discovered under the deceased’s body. 86. In interview the appellant exercised his right to silence. He produced a prepared note which explained that his decision to do so was made on the basis of legal advice. It is clear from the tape recording that throughout the interview he was sobbing. The appellant admitted that he was responsible for the fatal injuries. 87. The case for the prosecution was straightforward. The appellant had decided to kill his wife before she arrived at the house and that this was why he asked her brother-in-law to remain outside. The crown alleged that he had locked the back door of the house. He had placed knives close to hand in preparation for the attack, which started almost as soon as she entered the house. The appellant was jealous and controlling and he resented Mrs Parker’s newly found confidence and ambition, and, although not habitually violent, he was capable of being violent towards her, as indeed he had been on the previous night. He was guilty of murder. 88. The defence case was that the appellant was guilty of manslaughter, but not murder, on the basis of “loss of control” within the 2009 Act . There was no pre-planning and that the loss of control resulted from a combination of the contents of the text message demanding that he leave the family home, which it was said came as a “bolt from the blue”, and from what she said to him and her manner when she returned to the house, and his realisation that she would have the children and that she had been planning this for a while with other people behind his back. 89. The appellant was a man of previous good character. In evidence he described various problems in the relationship at an earlier stage, but by 2010 he thought the relationship was in good order. He knew nothing of any relationship in which she had become involved. 90. The argument on the evening of 26 th October was about money. He said that he pushed her out of frustration as he walked past. The cup struck her in the mouth. He didn’t realise she had an injury, and didn’t mean to hurt her. She chucked it at him and its contents went everywhere. He cleared it up. He apologised. They had sexual intercourse together that night. 91. On the following morning she took him to work and then went with the children. They had a disagreement via text messages as to whether he had apologised for the incident the previous night, but he still thought that everything was all right between them. She collected him from work because he was unwell, dropped him off home, and then went back to the children. 92. The text message came as a “bolt from the blue”. He was devastated. He used the small knife which was later found under Mrs Parker’s body to self harm, scratching his left forearm repeatedly but not deeply. He scored a love heart onto his ribs. He wrote a non-threatening letter to his wife, professing his love for her. He was really upset, distressed and crying, and not thinking clearly. He had never self harmed before. 93. He said that he put that knife down in the kitchen and went upstairs to pack his belongings. He felt that he had no choice. He looked through a family photograph album which he happened to come across, and became increasingly upset. He texted her asking how long she would be. He wanted to be able to tell her that he loved her. 94. When she returned home, the car pulled up without the children. He realised it was all over between them, and that her actions had been pre-planned. He remembered going to the back door, but did not recall opening it or asking her brother-in-law to give them a minute, nor did he recall locking the back door, although he accepted that he must have done. Mrs Parker walked passed him into the kitchen. He followed and pleaded with her not to leave. He said that he loved her. With a smug look on her face she said that she did not love him anymore. He then lost it. 95. He said that he was upset and he “snapped “and lashed out at her. He said that he did not recall doing it. He could not recall if he used the small knife. He had no recollection of the large knife or of the attack itself. The next thing he could recall was his brother-in-law with his arm around his neck shouting at him to drop the knife. 96. We must briefly address a distinct further submission on appeal. During the course of the Crown’s case, the prosecution sought leave to introduce hearsay evidence from friends and family about the background to the relationship and events which led up to Mrs Parker’s death. This included evidence of violence by the appellant directed at his wife. The crown suggested that this was admissible hearsay and admissible as bad character evidence under section 101(1)(c) as important explanatory evidence within the ambit of section 102 of the Criminal Justice Act 2003 . 97. Although it was accepted at trial that a number of different categories of evidence could be put before the jury by consent, the main contention was that the evidence of previous incidents of violence should be excluded. The level of violence described by the witnesses did not provide any real explanation for the level of violence which occurred on the afternoon of Mrs Parker’s death. There was a dispute about some of the details, and this would lead to satellite litigation. 98. The judge ruled that evidence of the appellant’s bad behaviour to his wife, including the occasional use of violence, was relevant to the prosecution case not least because it made it more likely that the crown’s submission as to the truth of events which occurred on 27 th October was correct. It was relevant, and unless there were reasons for it to be excluded, it should be admitted. Although hearsay, it was admissible pursuant to section 116 of the 2003 Act , and the judge was satisfied that it was in the interests of justice that the evidence should be put before the jury. In relation to the admissibility of bad character evidence he held that in principle it was admissible. To exclude it would deprive the jury of important explanatory evidence and leave them with only the appellant’s version of the background. This would convey an unreal impression of the facts, and make it difficult for the jury to grasp the issues in the case. Although he specifically excluded passages of the evidence from two witnesses, in general terms he agreed with the crown’s submissions. 99. This ground of appeal arises from a straightforward ruling which, when examined in the factual background, causes us no concern. It is further suggested that the judge gave inadequate directions to the jury about how this evidence should be approached. We are equally untroubled. 100. The main ground of appeal arises from the way in which the judge directed the jury on the loss of control issue. It is suggested that he failed to direct them adequately about the burden of proof, wrongly implying that the burden rested on the defendant. Alternatively, the summing up on these issues was unclear and confusing and had the effect of reversing the burden of proof. 101. The criticisms of the judge’s directions to the jury begin with his assertive failure to tell them what a “loss of control” was, and what it amounted to, and the jury’s attention was not drawn to all relevant matters in a coherent way. 102. Judge Mettyear began his directions to the jury in unequivocal terms. The burden of proof rested on the prosecution. It “always, always rests” on the prosecution and never shifts. The Crown had to prove all the elements of the offence. The standard to be reached was that the jury had to be sure of guilt. The directions were given in unequivocal terms. 103. In his route to verdict (which was agreed by both counsel at trial), the judge directed the jury: “The defendant has admitted unlawful killing of his wife Jane Parker. He is, on the facts of this case guilty of murder unless the killing resulted from his loss of self control”. Question 1. When he stabbed Jane had he lost self control? If you are sure he had not lost his self control your verdict must be guilty of murder and you should proceed no further. Otherwise go to the next question. Question 2. Was the defendant’s loss of self control caused by a qualifying trigger? (note. The qualifying triggers are things which you find to be said or done by Jane individually or in combination which a. constitute circumstances of an extremely grave character and b. which caused the defendant to have a justified sense of being seriously wronged. You should look at the whole of the evidence relating to the relationship between them including the events of the 27 th October, when judging whether things said or done by Jane constituted circumstances which caused the defendant to have justifiable sense of being seriously wronged. If you are sure that his loss of self control was not caused by a qualifying trigger or triggers then your verdict must be guilty of murder and you should proceed no further. Otherwise go on to the next question. Question 3. Might a man of the defendant’s age with a normal degree of tolerance and self restraint have reacted in the same or in a similar way to the way that the defendant reacted? If you are sure that such a person would not have reacted in the same or similar way to the defendant then your verdict must be guilty of murder. If you think such a person might have reacted in the same or a similar way your verdict must be not guilty of murder but guilty of manslaughter. 104. We have examined the document, and the judge’s oral directions. On this particular point, taken in isolation, the answer to the second question could have been more felicitously expressed in relation to the burden of proof. However that may be, the remainder of the directions to the jury were impeccable. In particular, the references in the route to verdict plainly put the burden of proof where it rested. It carefully isolated the three ingredients of the “loss of control” defence. We have examined the criticisms of the summing up with care. We can discern no unfairness or lack of balance. It fairly reflected the available evidence. The defence was put before the jury in careful detail. We cannot identify any reason for concluding that this conviction was unsafe. 105. Before leaving the conviction appeal we propose to add one further observation. The judge was not invited to withdraw the “loss of control” defence from the jury. With our increased understanding of the differences between the loss of control defence and the former provocation defence, we anticipate that such a submission would now be raised by the Crown for the judge to consider. He might well have concluded that the matters relied on by the appellant could not reasonably be treated by any jury as circumstances of an extremely grave character which caused him to have a justifiable sense that he had been seriously wronged. 106. The appeal against conviction is dismissed. We were invited to give leave to appeal against sentence. The submission that the sentence was manifestly excessive is unarguable. The judge carefully weighed the essential features of the case and, bearing in mind the provisions of Schedule 21, reached a conclusion which cannot be criticised. R v Dewi Evans 107. The applicant was a man of good character, aged 61 years at trial. He had been married to his wife …, … for 41 years. They had adult children, and grandchildren. 108. On 11 th November 2010 the appellant inflicted stab wounds to his wife’s neck and killed her. 109. The prosecution case was that she was murdered because she told her husband that she was going to leave him. The defence case was that Mrs Evans had stabbed the appellant before he stabbed her, and when he did stab her he had lost his self control. The crown’s case was that wounds found on the appellant after the fatal attack were self inflicted, but that in any event, when stabbing his wife, he had acted out of revenge and not through any loss of control. 110. The question raised in this appeal is whether the judge properly directed the jury as to the meaning of the words in section 54(4) of the 2009 Act , “acted in a considered desire for revenge”. 111. For the children of this couple, this trial must have been an ordeal. Their son gave evidence about his father’s gentleness. He never lost his temper or raised his voice. It was his mother who told them off. He accepted that his mother had a bit of a temper. He had never seen her act violently towards him, although she had told him that on one occasion she had slapped his father. He thought that when he was growing up his parents had a brilliant relationship. Their daughter also described a happy loving relationship, at any rate until an incident in 2004, when the appellant found the dead body of his neighbour. Thereafter he became totally different, very lazy and unmotivated, and much quieter, reliant for everything on his wife. She tried to help him, but gradually she became frustrated at his behaviour. He became obsessed with her, like a shadow. He was referred to a counsellor and psychiatrist. Mrs Evans started to become aggressive, shouting at him, because he was lazy and pathetic. She saw her mother push her father on a number of occasions, and her mother told her that she had slapped the appellant more than once. 112. Plainly, after 2004 the marriage sadly deteriorated. Mrs Evans talked about leaving the appellant, but when in the end she could not do it. She had applied to be re-housed in March 2007. She was offered a flat. Then she turned it down, saying that she did not want to move. She wanted to remain on the housing list. In April 2009 she stated on a housing application form that her husband suffered from depression. He needed his own room. 113. Evidence from an occupational therapist described how the appellant acknowledged that his problems related to and arose from the death of his neighbour. His wife was very supportive. She wanted him to change so that they could go back to the life they used to have together. He also said that he was concerned that his wife was having an affair. He was diagnosed as suffering from depression and severe anxiety. He was seen by psychiatric nurses for assessment and treatment of his mental health on some eighteen occasions between December 2008 and July 2010. 114. On 11 th November 2010 their son could hear his parents arguing in the early morning. His mother was in the kitchen sobbing, saying she could not take any more. Mrs Evans called her daughter who described her as upset. Various members of the family saw Mrs Evans that day, and by then she seemed like her normal self. Their son saw them both at 13.30, and their daughter saw her mother at 14.45. Both were untroubled. He said that his parents were happy, and their daughter said that her mother was fine. 115. At about 16.45 the son arrived home with his children. He walked into the house and saw his mother on the floor. Her face was swollen. There was a knife on the floor next to her. He went into the bedroom and found the appellant. He said “I couldn’t help myself” or “I couldn’t control myself I lost my temper”. The appellant lifted his tee-shirt and showed his son a wound on the stomach. Help arrived. The appellant was seen in the bedroom. He said that he had been stabbed. When the police arrived the appellant was lying on the bed clutching his stomach. The record of what he said was “Had an argument. She went for a knife. I went berserk so I stabbed her in the neck. I cut my wrist. My wife stabbed me in the stomach. She stabbed me in the bedroom. I grabbed knife and stabbed her in living room, twice to neck”. 116. When the paramedics arrived the appellant said that he had caused injuries to his wrist, and his wife had caused the wound to his abdomen. 117. The knife found on the living room floor had been a lock knife purchased by the son many years earlier. Mrs Evans didn’t like it, and their son believed that it had been handed in during a knife amnesty. He had never seen it in a drawer or cupboard in the kitchen. It had never been left in a unit. It might have been kept in the tool box in the shed. The knife found on the bed, referred to as the green handled kitchen knife, was kept in a utensil jar in the kitchen, for show. 118. On post mortem four separate penetrating incise wounds, seven superficial incise wounds, wounds, caused by a separate impact, but with two separate injuries possibly caused in one action were found. There was bruising to the lips, swollen eyelids, and defensive injuries, together with an abrasion on the neck. There was evidence to suggest that pressure had been applied to the neck. The account given by the appellant in interview did not account for the totality of the injuries sustained by his wife. Either knife could have caused the superficial incised wounds. The lock knife was the more likely cause of the penetrating wounds. The deep penetrating wounds to the neck caused death. 119. Neither the pathologist nor the forensic scientist could throw significant light on the question whether the appellant had suffered an injury to his stomach before he stabbed his wife. Analysis of blood stains and findings of blood, again, were inconclusive. 120. The appellant was interviewed on a number of occasions. As he did not give evidence at trial, we should set out his account in some detail. 121. During the first interview, the appellant said that they were watching television and started to argue. His wife started shouting at him over something silly. He said he would watch television in the bedroom. Five minutes or so later she came to the bedroom holding the kitchen knife and held it to the soft part at the bottom of his neck saying, “I’ll let you have this in your throat now”. He responded “You do that”. She had done this before, he thought it was a joke. She then called him an ugly little bastard, taking a step back and with both hands on the knife, she stabbed him in the stomach, leaving the knife in place. She left the bedroom, and he pulled the knife out and threw it down on the bed. The wound wasn’t bleeding. He could not remember whether his tee-shirt was up or down when she stabbed him, a question of some importance because no cuts to the tee-shirt were found. He said “I was mad, crazy, I saw stars”. 122. He went into the kitchen to look at his wound in better light. The wound was still not bleeding. The lock knife was on the top of the unit. He then noticed some yellow liquid coming out of the wound. This made him feel mad. He opened up the knife and stabbed his wife in the throat. He said “it wasn’t a spur of the moment thing, it just … look at the knife, went in the living room and stuck it in her throat”. He said he knew what he had done, but at the time it was just the way he felt. 123. Later he said “I wasn’t intending to, you know, to do that, it’s just that it happened on the spur of the moment thing”. He hadn’t walked in intending to do it. He had walked into the lounge and things happened from there. He decided to do what he did when he was walking into the lounge. He intended to frighten her, but everything got out of hand. He agreed that he had stabbed his wife twice in the throat. As he walked out he started to bleed heavily from his wound. When he saw the injuries to his wife he said to himself “well what have I done? I thought the best way, the easiest way out was to go back to the bedroom, pick up the other knife and slit my wrists”. There were two stab wounds because he thought he had missed with the first. 124. In the second interview he said that no violence took place in the living room other than his wife grabbing his arm. He did not think that he had stabbed her a third time. He dropped the knife down by the settee and put his hand on it. When he walked into the lounge his wife had said something like “go on then good boy”. When he stabbed her he had his hand on her shoulder for balance. The struggle only lasted for seconds, and when he stabbed her the first and second time he thought “what am I doing?” He intended to hurt her, but he went too far. After stabbing his wife he stood in the passage for a while and went back to the bedroom and cut his wrist. 125. In this interview he said that he had felt frightened of his wife when she held the knife over him. She had held the knife to his throat before. He went on to state that relations that day had been pretty good. She had kicked him in the morning. He said that if she fancied giving him a clout, she would. His son had seen her do it. She had pulled his hair, hit his head against a wall and kicked him. This had happened on several occasions. She would hit him once a day. This had gone on for a few years. Asked why she treated him in this way, he said that he nagged her, he didn’t do anything physically, but perhaps mentally. 126. In the third interview he said that if he wanted to injure his wife he would have taken the knife which she had used to stab him. It was when he was in the kitchen that he started boiling. He just wanted to stab her back after he had seen the knife. He felt ashamed to call the police and say he had been stabbed by his wife. He didn’t know how his wife had received injuries to her face and neck, because he had never punched her. 127. In the fourth interview he said that he was concerned that his wife was having an affair. That morning she had told him that she was going to leave him, but that was something she said every other day. He denied that it was the thought of her leaving that drove him to assault her. It was put to him that the stab wound to his stomach was higher than his belly button, but below his ribs, and his shirt would have had to come up very high to have been missed by the knife. He insisted that he had not stabbed himself. He thought he had only stabbed his wife twice. He denied making the other two penetrating puncture wounds. 128. When he summed up the judge addressed the issue of loss of self control in accordance with section 54 and 55 of the 2009 Act . He explained a loss of self control. “The defendant lost his self control if his ability to restrain himself was so overwhelmed by emotional passion that he could not resist the impulse to attack (his wife) with a knife. A considered act of revenge, whether performed calmly or in anger, is not a loss of self control. The Act of Parliament says that the defence does not apply if the defendant acted in a considered desire of revenge.” That was precisely accurate, a clear reference to the crown’s contention that Mrs Evans had been killed in the course of a revenge attack on her by her husband. 129. The judge then amplified the meaning of a considered desire for revenge: “An act of retribution as a result of a deliberate and considered decision to get your own back, that is one that has been thought about. If you are sure that what the defendant did was to reflect on what had happened and the circumstances in which he found himself and decided to take his revenge on (his wife), that would not have been a loss of self control as the law requires.” 130. He then summarised the evidence relied on by the crown which was said to be consistent with an absence of loss of control but consistent with a considered act of revenge. He then, with equal emphasis, summarised the evidence relied on by the defence to show that there must or may have been a loss of self control, and that he was not acting out of a considered desire for revenge. He concluded this part of his summing up: “If you conclude so that you are sure either that this was a considered act of revenge by the defendant or that he had not lost the ability to control himself, this defence does not apply and your verdict would be guilty of murder”. 131. The criticism of this direction is that it did not provide the jury with a sufficient elucidation of the significance of the use of the word “considered” in its statutory context. The problem with the argument is simple. The judge directed the jury in accordance with the statutory language. There was no need to rewrite, and there was a potential for confusion if he had rewritten the language of the statute, and reformulated the statutory criteria. There was no reason to do so. The language is clear. The direction accurately encapsulated the issue to be decided by the jury, and the way they should approach to it. 132. There are no further grounds of appeal. Accordingly the appeal will be dismissed.

```yaml citation: '[2012] EWCA Crim 2' date: '2012-01-17' judges: - MRS JUSTICE GLOSTER DBE ```

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No: 200501457/C2 Neutral Citation Number: [2005] EWCA Crim 3606 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 14th December 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE CRANE MR JUSTICE OPENSHAW - - - - - - - R E G I N A -v- MOSHEN MOKHTAZARDEH GHAHI - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR J PRICE appeared on behalf of the APPLICANT MR B HOULDER appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE CRANE: On 18th February 2005 in the Crown Court at Kingston-upon-Thames, this applicant was convicted, by a majority, of rape and sentenced by the trial judge, His Honour Judge Southwell, to a sentence of 7 years' imprisonment. 2. The jury failed to agree on the second count on the indictment, rape on the same victim on the same occasion and that count was ordered to lie on the file. He renews his application for leave to appeal conviction after refusal by the Single Judge. 3. On 19th January 2004 the complainant went with a female friend to a club for gay men and women in Tottenham Court Road in London. They had been drinking. They continued drinking at the club and the complainant admitted becoming very drunk. 4. The prosecution case was that the complainant left the club in the early hours to get some air, as she felt unwell, and was approached by the applicant outside. She got into his car. She believed that it was a minicab but instead of driving her to her home, he drove to his flat in North London. She fell asleep during the journey. She awoke to find that they had arrived at an address and she walked with the applicant to his flat. Once inside she sat on a sofa in the living room. When the applicant kissed her she turned her head and said "no" but he then pulled her trousers down to her knees and raped her. Her account was that he also raped her some moments later while she was still on the sofa. She did not struggle, she said. She was too drunk to resist. She then asked if he would drive her back to the club. He was reluctant but did so. She could not remember anything about the return journey. 5. The complainant told the court that she had spoken to her friend on her mobile telephone on about four occasions, including a complaint that the applicant had had sex with her without her consent. Indeed, the friend gave evidence that she had received such calls. The following day the complainant went to a clinic for a Morning After contraceptive pill. In due course the staff referred the matter to the police. The applicant was identified because DNA material matching his was found when swabs were taken. 6. The defence case was that intercourse had taken place on one occasion and that it had been consensual. The applicant had said that he had met the complainant inside the club and they had danced and kissed and that by agreement the complainant had followed him out of the club and into his car and she was aware they were driving to his flat. He said that in fact after he had driven her back to the flat, they agreed to meet the next evening but she failed to turn up. He called character evidence from two female friends. 7. The original grounds settled by counsel were the subject of a refusal of leave by the learned Single Judge. 8. Mr Price, counsel who now appears for the applicant has accepted that the refusal of those grounds were inevitable but he has drafted perfected ground of appeal on which he relies. His perfected grounds are full and detailed and he has confirmed them in succinct submissions this morning. 9. He accepted that, although the CCTV tapes had been lost, and the judge was correct to refuse an application to stay the indictment for abuse of process on that basis, nevertheless the trial process should have been used to correct any prejudice and unfairness which that loss caused. He submits, first of all, that the evidence relating to how, where and when the defendant first met the complainant should have been excluded. In particular, the evidence about him being a minicab driver should have been excluded and he should not have been permitted to be questioned on that topic. In fact the evidence, as it came out, was that the complainant was not told by him, according to her, that he was a minicab driver; she simply assumed it. But in fact the state of the evidence was accurately summed up by the learned judge. The learned judge had not been asked to exclude the evidence. It was of relevance and we cannot see that it caused unfair prejudice to the applicant. 10. The mobile telephone records had not been obtained which might or might not have confirmed that the alleged calls to friend had taken place although they would not have of course revealed what was said in those calls. The learned judge was not asked to exclude the evidence of the friend or the evidence in relation to those messages. It is speculation to ask what the result of further inquiries about those calls would have been. The matter was fairly summed up to the jury. 11. The next ground relates to the conflict of evidence about whether the complainant collected her coat from the cloakroom, as the applicant alleged or whether she already had it with her. It is proposed it is said to make further enquiries at the club on that topic and an application might be made to introduce fresh evidence. That is speculative. It is the kind of matter that could and should have been explored at trial. 12. The cross-examination of the defendant, apart from the minicab issue, was also the subject of complaint in two respects. First of all, the applicant said, in his evidence in chief, that he was gay. It is accepted that in principle he could have been asked about that but counsel for the prosecution went on to question why this had not been stated in his defence statement. As a result of submissions in the absence of the jury, that was taken no further, but complaint is made that no explanation was given to the jury, which might have left a suspicion on their part that there was a recent invention by the applicant. In fact, there was no basis for saying that it was a recent invention. 13. The second aspect of the cross-examination was this. The prosecution cross-examined him on the basis that the applicant's evidence that the complainant had encouraged him to continue have intercourse without a condom was a recent invention. When the matter was dealt with in the absence of the jury, it was accepted that this was not recent invention and in fact the prosecution took the matter no further. Some explanation was given to the jury. The complaint is that it was much too brief. It is certainly arguable that the explanation in the second instance should have been fuller and in relation to the first incident should have been given to the jury. Nevertheless, those matters even combined with the other features that Mr Price puts before us do not lead us to the conclusion that this conviction is unsafe. 14. For those reasons we must refuse the renewed application for leave.

```yaml citation: '[2005] EWCA Crim 3606' date: '2005-12-14' judges: - (LORD JUSTICE ROSE) - MR JUSTICE CRANE - MR JUSTICE OPENSHAW ```

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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 202400218/A5 Neutral Citation Number: [2024] EWCA Crim 474 Royal Courts of Justice Strand London WC2A 2LL Wednesday 24 April 2024 Before: LORD JUSTICE MALES MR JUSTICE HILLIARD RECORDER OF NORTHAMPTON (HIS HONOUR JUDGE MAYO) (Sitting as a Judge of the CACD) REX V RAJAK MIAH __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MS H AHMAD appeared on behalf of the Appellant. _________ J U D G M E N T 1. MR JUSTICE HILLIARD: On 18 October 2022, in the Crown Court at Leeds, the appellant (then aged 27) pleaded guilty to possessing MDMA (count 2). On 4 December 2023, at the same court, the appellant pleaded guilty on re-arraignment to possessing cannabis with intent to supply (count 1); offering to supply cannabis (count 4); possessing cannabis with intent to supply (count 5) and possessing ketamine with intent to supply (count 6). On 21 December 2023, he was sentenced to concurrent terms of 18 months’ imprisonment on each count, with no separate penalty on count 2. He now appeals against sentence with leave of the single judge. 2. On 15 May 2020, police officers stopped a vehicle in Leeds. The appellant was the front seat passenger. The driver was in possession of cash and five mobile telephones. The appellant was in possession of cannabis, MDMA and cash. Two further mobile telephones were found in the vehicle. The drugs were analysed. Fifteen bags of cannabis weighed 44.9 grams, with a street value of £430. The MDMA weighed 0.88 grams and had a value of £40. Examination of the mobile telephone showed that the appellant was involved in the supply of cannabis. At his home address, the police found dealer cards and three more mobile telephones. When interviewed, the appellant said that the drugs were for his own use. He was released under investigation. 3. On 8 March 2021, police officers stopped a vehicle in Chapeltown Road, Leeds. The appellant was the sole occupant. He was in possession of £1766 in cash, two mobile telephones, three bags of cannabis and four bags of ketamine. The drugs had a street value of £140. Telephone contact showed that the appellant was dealing in drugs. When interviewed, he again said that the drugs were for his own use. 4. The appellant had three convictions for three offences. None of them involved drugs. He was in breach of a community order for possessing a bladed article when he committed the first offence. 5. A pre-sentence report said that the appellant was understanding and remorseful of his behaviour. He said that he had lost his job during the pandemic. His own drug use at the time had left him with a drug debt. He was told to sell drugs to pay off the debt. He had married in 2023. His wife was expecting a baby in March 2024. He stayed with his wife occasionally at her flat. He had been approved for a mortgage and was expecting to move into a new house in March 2024. He no longer took drugs. He was self-employed in his own property refurbishment business which he had had for 2½ years. If a community penalty was considered, an order with an unpaid work requirement was recommended. 6. The appellant’s wife had written a letter to the judge. She had been in a relationship with the appellant for 3 years. He had sought to make something of his life with his refurbishment business. She was anxious about how she would manage without his financial and practical support during pregnancy and with a baby. 7. When he passed sentence, the judge referred to the fact that the appellant had offended when subject to a community order and after he had been released under investigation. He said that the offences involving the supply of Class B drugs fell into category 3 significant role of the applicable sentencing guidelines. Each offence had a starting point of 12 months’ imprisonment, with a range extending up to 3 years’ imprisonment. 8. The judge raised the starting point for the first offence to 15 months’ imprisonment because the appellant had been subject to a community order and for the second offence to 18 months, because the appellant had been released under investigation at the time. Taking account of totality, the judge decided to impose concurrent sentences of 20 months’ imprisonment for each offence, which he then reduced by 10 per cent because of the pleas of guilty which had been entered on the morning of the appellant’s trial. 9. The judge said that the custody threshold had clearly been passed. He considered whether the sentences could be suspended. He concluded that they could not. The appellant had continued to offend in breach of a community order and when released under investigation. The judge said that there was no rehabilitative element that he could consider which would stop the appellant from offending. He referred to the absence of “over and above strong personal mitigation”. Immediate custody would have an impact upon his wife but in the judge’s view that was not “overly significant”. 10. It is now argued on the appellant’s behalf by Ms Ahmad that the sentence should have been suspended and that the judge did not give sufficient weight to the appellant’s personal mitigation, to the fact that no rehabilitation activity requirement was proposed in the pre-sentence report and to the current level of the prison population. Reliance is also placed on a positive prison report which we say at once is to the appellant’s credit and which says that he will be released on home detention curfew on 7 May, so in 13 days’ time. We are grateful to Ms Ahmed for her submissions and we have given them careful consideration. 11. The judge was right to conclude that the case crossed the custody threshold. That is agreed. Nor is any complaint made about the length of the sentence. The judge evidently had well in mind the sentencing guidelines for the imposition of community and custodial sentences. He expressly referred to the appellant’s personal mitigation and to the impact that immediate custody would have upon others. There were grounds for some optimism when the appellant had not offended since March 2021, had developed new responsibilities in his personal life and had achieved some success in his business. Nonetheless, the obstacle faced by the appellant then and now is that, as the judge identified, he had not only offended while subject to a community order, but he had then continued to offend after being released under investigation. The prospect of rehabilitation was only one matter that fell to be considered in accordance with the Imposition Guideline. The constraints the appellant was under, or should have been, and his failure to have regard to them made the offences more serious. In our judgment, it was reasonably open to the judge to conclude that they made the offences so serious that only immediate custody would constitute appropriate punishment, after considering all the circumstances of the case and all the factors in the Imposition Guideline, which it was his role then to balance. 12. In these circumstances, and notwithstanding Ms Ahmad’s submissions, this appeal must be dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]

```yaml citation: '[2024] EWCA Crim 474' date: '2024-04-24' judges: - LORD JUSTICE MALES - MR JUSTICE HILLIARD ```

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No: 201703035/A4 Neutral Citation Number: [2018] EWCA Crim 906 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 12 April 2018 B e f o r e : LORD JUSTICE GROSS MRS JUSTICE CHEEMA-GRUBB DBE MRS JUSTICE MAY DBE - - - - - - - - - - - - - R E G I N A v JOHN PAUL ROBEY - - - - - - - - - - - - - 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) - - - - - - - - - - - - - Ms G Jones QC appeared on behalf of the Appellant - - - - - - - - - - - - - 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. MRS JUSTICE MAY: 1. On 3 May 2017, at the Inner London Crown Court, the appellant was convicted, after a trial, of three offences: fraud, contrary to section 1 of the Fraud Act; acquiring criminal property, contrary to section 329 of the Proceeds of Crime Act and concealing, disguising, converting or transferring criminal property, contrary to section 327 of the same Act. His former wife and co-defendant was convicted of the two money laundering offences. 2. The appellant was sentenced to 3 years for the fraud with 1 year consecutive for the first of the money laundering offences and 1 year concurrent for the second money laundering offence, making 4 years in total. 3. He appeals with leave of the single judge on the basis that the sentences for the money laundering offences should both have been ordered to run concurrently and that the total sentence of 4 years is excessive as a result. 4. Ms Jones QC appears today for the appellant, as she did at trial. We are indebted to her for her clear and detailed advice and grounds prepared for this appeal. We have not found it necessary to call upon her to any great extent as the Crown have advised that they do not seek to oppose this appeal and have asked in advance to be excused from attending today. 5. The short facts of the case are as as follows. The appellant worked as a senior electrical engineer for the London Borough of Southwark. His primary function was to administer an estate lighting contract which had been awarded to a company called Spokemead Maintenance Ltd (“Spokemead”), to ensure that work on council housing estate lighting and ventilation was done to proper standards. As part of that role the appellant was required to declare any potential conflicts of interest to his employer. Between September 2012 and June 2014 he failed to declare his interest in a company called Robey's E & P Ltd (“Robey’s”), which undertook subcontracting work for Spokemead on a project to improve the heating, ventilation and air conditioning on the London Borough of Southwark housing estates. The appellant's then wife was a Director of Robey's and her son (the appellant's stepson) had taken up an office administration role with Spokemead. The appellant's failure to declare these interests gave rise to the fraud offence. 6. Between 3 October 2012 and 9 June 2014 Robey's received £318.233.76 gross from the London Borough of Southwark via Spokemead. It was established at trial that the council had not been overcharged and that all of the work done by Robey's had been both necessary and carried out to an acceptable standard. In principle however the London Borough of Southwark would not have agreed to Robey's doing the work had they known of the connection with the appellant because it gave rise to a conflict of interest. 7. The monies were paid by Spokemead into Robey's bank account in 22 payments. Between them the appellant and his former wife withdrew £154,466.76 from the account, the prosecution case at trial being that these withdrawals were ultimately used for the benefit of the appellant and his wife personally or for the benefit of the company, Robey's, which they jointly owned and operated. The receipt of the gross amount into the company account and the payments out thereafter formed the basis of the two money laundering offences. 8. In his sentencing remarks the learned judge rightly referred to the fact that the appellant was working as an official in the public sector where the highest standards of probity and honesty are expected. The sum received by the company (£318,000) placed the offence initially within category 2 of the applicable Sentencing Council Guidelines. However, this was a gross amount to the company which had expenses associated with materials and labour for the work which it had done. The judge took that into account and also that the work had been done well and concluded that the appropriate category for the purpose of sentencing was category 3. However, the level of culpability was high given the abuse of trust, the period of time over which the offending was carried out and the sophisticated nature of the offending. 9. Category 3A in the Sentencing Guideline has a starting point of 3 years with a range of 18 months to 4 years. Balancing the aggravating and mitigating factors the judge came to the conclusion that the least sentence he could pass for the fraud offence was one of 3 years. There is no criticism at all of the way in which he arrived at that sentence. Neither is there any issue taken with the length of the sentences passed for the two money laundering offences. Ms Jones submits that the judge erred only in ordering the sentence for the first of the laundering offences to run consecutively. 10. In her detailed note prepared for the sentencing hearing, and again before us, Ms Jones contends that the money laundering offences did not add to the culpability of the appellant taking the offences as a whole. She referred us in this connection to case of R v Greaves [2010] EWCA Crim 709 and to the Sentencing Council Guideline on Offences Taken into Consideration and Totality. 11. As the single judge pointed out when giving leave, the task for this court is to decide whether the total sentence of 4 years is manifestly excessive. We are satisfied that it is. In a commendably fair and careful approach to sentence for the primary fraud offence the judge concluded that the correct sentence was one of 3 years not 4. He was of course also sentencing the appellant's wife and co-defendant at trial on the money laundering offences alone and this may have been the reason at the time for ordering the 12 months to run consecutively to the fraud offence. However, in this respect only we believe that the judge fell into error in the approach he took, as the money laundering offences were part and parcel of the fraud and did not add to the appellant's overall culpability. 12. Accordingly we allow the appeal to the limited extent of quashing the order that the sentence of 12 months on count 6 run consecutively substituting for it an order that that sentence should run concurrently. All other sentences and orders will remain the same. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

```yaml citation: '[2018] EWCA Crim 906' date: '2018-04-12' judges: - LORD JUSTICE GROSS - MRS JUSTICE CHEEMA-GRUBB DBE - MRS JUSTICE MAY 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} ======

IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202300644/A3 NCN: [2023] EWCA Crim 912 Royal Courts of Justice Strand London WC2A 2LL Wednesday 7 June 2023 Before: LADY JUSTICE MACUR DBE MR JUSTICE CHOUDHURY MR JUSTICE CONSTABLE REX V CAMPBELL MCKEEGANS _________ MR A RADLEY appeared on behalf of the Appellant. _________ J U D G M E N T MR JUSTICE CONSTABLE: Introduction 1. On 27 February 2023, the appellant was sentenced by HHJ Lucking to 26 months' detention in a young offender institute on one count of making a threat to kill, contrary to section 16 of the Offences Against the Person Act 1861 , following a guilty plea. The appellant appeals against sentence by leave of the single judge. 2. The four grounds advanced in writing by Mr Radley, counsel for the appellant, were as follows: (1) the entry point of the sentence guidelines for the offence was placed too high for the facts of the case; (2) the judge departed from the Crown's assertion that this offence was at a lesser category of offending (3) insufficient weight was given to the vulnerabilities identified in the pre-sentence report, supporting the appellant's assertion that he was covertly given a drug before the offence leading to a loss of inhibitions and feelings of fear and being tricked into a possible addiction and (4) the principle of totality had not been applied to the sentence fairly. 3. The appellant was 10 days shy of his 18th birthday at the date of the offence; he was 19 years old when sentenced. When granting leave the single judge did not specifically refer to any of the four grounds that had been advanced by way of appeal but instead identified the appellant's age at the time of the offending and the delay in sentencing as factors to which insufficient weight may arguably have been given by the sentencing judge. The Facts 4. On 23 November 2021, the appellant was arrested at the address of another male. A search of the address led to a Nokia mobile phone being seized and a 5 minute and 19 second video was found on the phone. This video was made by the appellant. It showed a male (the complainant) being told to, and complying with instructions, to insert an object into his anus. He then struggled to remove the item whilst the appellant issued verbal threats to kill him if he did not remove it. Effectively this was "plugging" drugs. At the start of the video the appellant is heard to encourage the complainant to plug the item. The complainant can be heard saying: "This is so humiliating". The video showed him with his trousers down and he was told to bend over more so he could plug the object as instructed. The appellant and a second male could be heard laughing. 5. Once the complainant had successfully plugged the object, he was told to "unbank that now". He started to try and remove the package but was unable to do so quickly enough. The appellant became increasingly aggressive demanding "unbank the fucking pack now" and "hurry fuck up or I'm going to kill you". The complainant squatted in an effort to remove the package and asked if he could go to the toilet, the appellant said: "I'm going to have to kill you now bro". The complainant was allowed to go to the toilet and sit on it to see if he could remove the package. He was told to hurry up and replied: "It isn't easy with you guys watching". The video showed him trying to get the package out and the appellant saying: "It's £1,000 in you, I'm going to kill you bro, I'm going to stab you up". After this the appellant started counting down from 5, saying: "I'm going to do mad things. I'm going to cut him open. I'm going to kill you bro if ain't out in 5 minutes." The appellant then says: "Give me the Rambo, bro" (meaning a type of knife) and could be seen holding a machete on the video and saying: "I'm going to stab you up, I'm going stab you up. I'm going to kill him. I'm going to put this knife in his neck if you don't get it out." The appellant became increasingly agitated and angry that the package had not been unplugged. The footage ended after 5 minutes and 19 seconds, and at that point the complainant had not managed to remove the package. 6. The Sentence 7. The judge sought to categorise the offence within the Sentencing Guideline for threats to kill. A note submitted by previous counsel for the prosecution, in advance of what became an adjourned hearing for sentence, had identified the categorisation as higher culpability because a weapon was visible and as category 2 for harm. Category 2 is harm which falls between categories 1 and 3 and, in particular, some distress caused to the victim. Category 1 includes very serious distress caused to the victim. The judge agreed with higher culpability and, quite rightly, no criticism is made of that in this appeal in Mr Radley's oral submissions today. The judge was however concerned that category 2 understated the level of harm. The court had been provided with a story board of the 5 minute 19 second video, which included stills taken from key moments in the video. However, the judge wished, quite correctly, to see, and importantly, hear the video. This was done in the company of counsel, in chambers rather than in open court given the content of the video. Having seen the content of the video, the judge formed the view that the complainant was not just subjected to some distress but was significantly distressed and moreover humiliated. She said that she considered the correct categorisation of harm to be category 1, and counsel for the prosecution (a different counsel from counsel who had prepared the Sentencing Note) appeared to agree. 8. In her sentencing remarks, it is clear that the judge took into account, prior to settling on the appropriate categorisation, the basis of plea. The basis of plea accepted by the Crown was that, prior to the incident, the appellant had been given half a roll up cigarette to smoke, it had made the appellant feel like he wasn't himself and he had flashbacks to his childhood when he had witnessed his parents being robbed and his mother had her jaw broken. It made him feel hyperactive and he felt he must have been spiked. He thought it was crack cocaine and he thought he would become addicted. The basis of plea was also reflected in the comments made during interview for the purpose of the pre-sentence report. 9. The judge recognised that if the cigarette given to him by the complainant had been spiked and this had affected the appellant's conduct, this is a matter which could go to the level of culpability and, at this stage, she also expressly identified extremely distressing aspects of the appellant's childhood, reflected in the pre-sentence report, which may also have affected his state of mind. However, she said that these factors must be balanced against the level of distress caused by the appellant. She described how in the video the complainant becomes very distressed and his voice can clearly be heard rising in a degree of panic in response to the fact the appellant's own voice had become increasingly intense and serious about killing the complainant because of the £1,000 of drugs which the complainant was unable to remove from his body. She stated that, notwithstanding the basis of plea and the appellant's childhood experience, she was satisfied that the distress caused placed this in the category 1 of harm. The judge identified the starting point for a category A1 threat to kill as 4 years within a range of 2 to 7 years. The judge then proceeded to consider statutory aggravating factors, namely the appellant's previous convictions. 10. The appellant had 15 convictions for 44 offences spanning from 2015 to 2021. His previous offences included criminal damage, theft, common assault, resisting a constable, multiple offences of robbery, dwelling burglary, aggravated vehicle taking and using threatening behaviour. In 2017, he had received an 8-month DTO for an offence of aggravated burglary. In 2020, he was made subject of YRO for possessing Class B and his most recent sentence in 2021 was when he was fined for possessing Class B drugs. 11. The judge, in this context, then took account of the damaging and difficult childhood through which lens the appellant's previous convictions should be viewed. The judge referred to the guidance in the Sentencing Council's guidance on Sentencing Children and Young Persons. She identified that, although the appellant was ten days shy of his 18th birthday, she had to bear in mind normally, for a young person aged between 15 and 17, the guidance states that the court, when considering the relevant adult guidance, may feel it appropriate to reduce the sentence by half to two-thirds of the adult sentence. It is plain that in putting it this way the judge misspoke because the guidance does not say a reduction by half to two-thirds but rather a reduction to half to two-thirds of the adult sentence for those aged 15 to 17. The guidance also states that this is only a rough guide and must not be applied mechanistically, as indeed the judge reminded herself. 12. Mr Radley, in his written submissions, worked backwards from 26 months, imposed after a full one-third credit for a plea, and calculated that the judge's starting point, prior to the adjustment for youth, was some 62 months. Whilst it may have been better for the judge to have identified her calculation more explicitly, we do not think that this in fact was the likely starting point of the judge. Instead, it seems to us likely that the judge initially identified a starting point of 4 years as set out in the relevant guidance for category A1. 13. Notwithstanding the presence of statutory aggravation features of serious previous convictions, the judge did not then adjust the 4-year starting point upwards for these, in light of the mitigating effect of the appellant's troubled childhood and youth. Prior to a one-third reduction for the guilty plea, the judge's sentence must have been 39 months. Thirty-nine months is an approximate 20 per reduction from 4 years (or 48 months) starting point. Thus, taking account of the judge's comments that the discount for youth needed to reflect the fact that the applicant was only 10 days shy of his 18th birthday, it seems to us that the judge reduced the sentence she would otherwise have given to an adult by some 20 per cent, rather than a 33 to 50 per cent referred to in the Guideline. 14. The Appeal 15. We shall now consider each of the bases of appeal advanced in writing and in the helpful oral submissions by Mr Radley today together with the remarks of the single justice. It is convenient to take grounds (1), (2) and (3) together. They all relate to whether the judge was correct to categorise the offence as an A1 offence. This was a central plank of the appeal as emphasised by Mr Radley today. We have watched the video. We agree with the sentencing judge that the distress caused to the complainant was very significant. Because of the words and demeanour of the appellant, the complainant clearly thought that if he was unable to remove the drugs from his body, the appellant would cause him really serious harm with the Rambo knife, potentially resulting in his death. The judge plainly considered the basis of plea and the vulnerabilities of the appellant and was right to balance that when considering the correct categorisation. The judge, in our view, was not just entitled to, but absolutely correct to, conclude on the video evidence that both the presence of the knife justified higher culpability and the distress caused was such that, even without the added humiliation caused by the appellant's conduct, the harm fell into category 1. As to ground (2) specifically, judges are entitled to conclude that the offending lies outside of the categorisation submitted as appropriate by the prosecution, or indeed one agreed by both prosecution and defence. Providing that the categorisation the judge arrives at is justified, the mere fact that it departed from the Crown's assertion is irrelevant and does not constitute a ground of appeal. 16. In this case, we are therefore of the view that the judge was not just justified, but correct, in determining that this offending should be categorised as A1. We also note that, after the judge and counsel had watched the video, prosecuting counsel did not in fact submit the correct categorisation of harm was level 2 and appeared to agree with the judge. In any event, ground B falls away. 17. As to ground 4, in his oral submissions today, Mr Radley elaborated on the ground of totality. He identified that the appellant was serving at the time a sentence for a drugs offence. The drugs offence was not directly related to the offences that were being sentenced by the sentencing judge. Mr Radley submitted that nevertheless, this should have been taken account of notwithstanding the fact that the cases were not directly linked. 18. The application of the principle of totality is not of course directly relevant where, as here, the appellant was being sentenced for a single offence. Nevertheless, we are satisfied that all of the circumstances of the appellant's situation, including his being in detention at the time of sentences, were taken account of in the overall sentence. Ground 4 therefore does not assist the appellant. 19. Turning finally to the observations of the single judge when granting leave. We consider that the sentencing judge gave proper consideration both to the contents of the pre-sentence report and to the youth of the appellant. She did so first, when the combined effect of the aggravation and mitigation led her to not increasing the 4-year starting point for the appellant's previous conviction. She did so secondly. when applying a 20% reduction to the sentence prior to credit in order to reflect the youth of the appellant who only just fell within the 15 to 17-year old bracket to which the guidance applies. As the guidance states, the reduction to the half to two-thirds of the adult sentence should not be applied mechanically and determining that the appropriate reduction was one of around 20 per cent when the appellant was 10 days short of his 18th birthday was entirely justified. Whilst the judge did not explicitly take account of the delay in sentencing, we regard the ultimate sentence of 26 month to be neither wrong in principle nor manifestly excessive. Accordingly, the appeal is dismissed.

```yaml citation: '[2023] EWCA Crim 912' date: '2023-06-07' judges: - LADY JUSTICE MACUR DBE - MR JUSTICE CHOUDHURY - MR JUSTICE CONSTABLE ```