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

Neutral Citation Number: [2016] EWCA Crim 1408 Case No: 201601697A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 27th July 2016 B e f o r e : LORD JUSTICE TREACY MRS JUSTICE NICOLA DAVIES DBE HER HONOUR JUDGE CUTTS (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 DARREN CESSFORD JAY LEWIS MAXWELL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 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 L Oakley appeared on behalf of the Attorney General Miss D Pigot appeared on behalf of the Offender Cessford Mr P Hill appeared on behalf of the Offender Maxwell - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LORD JUSTICE TREACY: 2. This is an Attorney-General's Reference of sentences he considers to be unduly lenient. 3. On 17th March 2016 in the Crown Court at Basildon these offenders were convicted of an offence of burglary, contrary section 9(1) (b) of the Theft Act 1968 . They were sentenced on the same day. Cessford received 3 years' imprisonment, Maxwell received 21 months' detention in a young offender institution. 4. The facts show that the burgled premises were a residential property comprising the main house and an annex which was an integral part of that property. On 8th July 2015, in the early afternoon, the householder's son, who lived in the annex with his wife and his own young son, heard footsteps coming from the main house. He went to investigate and arrived in his parents' bedroom. There he saw Cessford, standing about 10 metres away, going through drawers in his mother's dressing table. He shouted at the offender who turned to face him. The offender had a knife in his right hand, held in a clenched fist. The offender's arm was lifted up and the blade of the knife was pointed straight up. Cessford did not make a movement but the householder was terrified. He felt scared for his life. He heard a second male voice. He ran from the bedroom back to the annex and locked himself inside. He then called 999 in a petrified state. 5. The two burglars left the premises. They had taken with them, amongst other things, a significant quantity of jewellery of sentimental value. The knife which Cessford had obtained from within the house was recovered near the front door. The obvious question to be asked about the knife is why it was taken upstairs at all by Cessford. 6. A series of CCTV clips from various sources picked up the individuals responsible. They were later identified by a police officer. Both offenders made "no comment" in interview. They denied their guilt at trial. There was evidence that Cessford had asked a former girlfriend to dispose of clothing he had been wearing at the time of the offence. In the victim impact statement the householder describes how he and his wife had been affected by the burglary and were left feeling nervous and insecure. 7. Cessford is now 23 years of age. He has been convicted of 18 offences, including three convictions for domestic burglary recorded in 2008 and on two separate occasions in 2011. He also received a conviction for handling stolen goods in 2010. He received 18 months in a young offender institution for the last of those burglaries and a concurrent 4 year sentence for causing death by dangerous driving on the same occasion. 8. Maxwell was 17 years of age at the time of the offence. He was a couple of months shy of his 18th birthday. He had 17 previous convictions, four of them for domestic burglary. Those convictions were recorded in August 2013, two in June 2014 and the fourth in September 2014. In addition, on that last occasion, there was a conviction for an attempted burglary. Maxwell had also been sentenced for handling stolen goods in March 2014. Cessford was therefore a third-strike burglar liable to a minimum sentence of 3 years. Maxwell was not, since his convictions were recorded when he was under 18, as he was when this offence was committed. 9. Before we deal with the submission that the sentences were unduly lenient there is a jurisdictional point to be resolved. Under section 35(3) (b)(i) of the Criminal Justice Act 1988 the Attorney-General may refer a case to this court as unduly lenient if the sentence was passed on an offence that is triable only on indictment. These two offenders had been charged with an offence of aggravated burglary which is triable only on indictment. They had been sent to the Crown Court on that charge pursuant to section 51(1) of the Crime and Disorder Act 1988. Thereafter however, the Crown Prosecution Service concluded that the evidential test for an offence of aggravated burglary was not met. Accordingly an indictment containing a single count of burglary, contrary to section 9(1) (b) of the Theft Act was served on the court. It was on that indictment that these offenders were arraigned and tried. In the case of Cessford no difficulty arises because by virtue of section 111(4) of the Powers of Criminal Courts (Sentencing) Act 2000 , a dwelling-house burglary, where the accused is over 18 at the time of the commission of the offence and who has two previous separate convictions for domestic burglary is triable only on indictment. As already stated that provision does not apply in Maxwell's case. The Attorney-General however relies on section 17 and Schedule 1, paragraph 28 of the Magistrates' Court Act 1980 . These provisions provide that certain types of burglary are triable only on indictment. They include a burglary in a dwelling-house where any person in the dwelling is subjected to violence or the threat of violence - see paragraph 28(c). The Attorney-General submits that in the circumstances Maxwell falls within this provision, thus giving this court jurisdiction in relation to him. 10. Counsel for Maxwell submits to the contrary, urging that there was no evidence that the occupier was subjected either to violence or to threats of violence. It is further argued that whilst the burglary was a joint enterprise, the use of the knife was not a joint enterprise, it being asserted that the only person ever seen with the knife was Cessford and it being said that he was responsible for any threat if there was one. 11. We do not consider that that latter submission is a sound one. Consideration of R v McGrath [2004] 1 Cr App R 15 shows at paragraphs 12 and 13 that any use of violence and/or threat of violence is sufficient. The extent or degree of the violence used is not a consideration under Schedule 1, paragraph 28. The court in that case also rejected the proposition that violence threatened in the course of the complainant's attempt to prevent him leaving the premises took the matter out of paragraph 28(c). 12. The court disagreed with that submission, stating at paragraph 11 that paragraph 28(c) clearly referred to any case in which violence was offered in the course of the whole incident said to constitute the dwelling house burglary. 13. We consider that the wording of paragraph 28(c) is such that it refers to a type of burglary, namely one in which a person in a dwelling-house is subjected to violence or the threat of violence. It is not concerned with the roles or responsibilities of individual offenders. It is sufficient in determining the question of jurisdiction if the violence or threats took place during the course of the burglary without more. 14. That leaves the question of whether there was evidence that the occupier was subjected to threats of violence in this case. We note that Maxwell's counsel's own written submissions state that the evidence was that the knife was used to ward off or frighten the occupier. That of itself clearly indicates a threat. 15. In answer to a question by the court this morning, Mr Hill acknowledged that the inference to be drawn from the taking of the knife from the kitchen to an upstairs part of the premises was that the person concerned had taken it in case he was disturbed during the course of the burglary. 16. We note that in sentencing, the judge spoke of a confrontation between Cessford and the occupier of the house at the time when Cessford had a knife. We consider that in all the circumstances that there was clearly sufficient evidence to demonstrate a threat of violence during the burglary. That being so, this offence of burglary did fall within paragraph 28(c) and therefore was an indictable only offence. Accordingly, this court has jurisdiction to entertain the Reference in Maxwell's case as well as that of Cessford. 17. The Attorney-General's submission is in each case that the offence was a category 1 burglary within the Definitive Guideline. That has a starting point of 3 years, with a range of 2 to 6 years. There are a number of greater harm factors. In particular the loss of a substantial amount of jewellery of sentimental value, the presence of an occupier and the threat of violence. Higher culpability is indicated by the commission of the crime by more than one person and we remind ourselves that a knife was used to threaten. 18. The case is aggravated by the significant previous convictions of each offender and also by what was an untidy search of the property, even if it did not amount to ransacking. We also take some account of the ongoing effect of the burglary upon the victims' peace of mind although such unsettling effects are, at least in part, reflected in the guidelines themselves. 19. There is no mitigation available to either offender for a guilty plea, nor indeed is there any sign of remorse on their part. There was no pre-sentence report on either offender. It appears that one was thought to be unnecessary given the nature of the offence and the inevitability of a custodial sentence. 20. In Maxwell's case personal information concerning him was provided to the court at the time of mitigation. We have seen post-sentence reports on each offender. That in relation to Cessford shows poor conduct in custody; indeed he has subsequently been convicted for having an unauthorised article in prison. There is therefore nothing that can avail him in relation to those reports.As far as Maxwell is concerned, the report shows indifferent behaviour on remand but an improvement to satisfactory behaviour since the time of his sentence. 21. In each case counsel submits that the sentence was lenient, but not unduly so. In Maxwell's case reliance is placed in particular upon his age at the time of the offence and the fact that he was not the person who brandished the knife. The judge was told that whilst Maxwell has been in custody his partner has given birth to a child. 22. In Cessford's case the judge passed the minimum sentence pursuant to section 111 . This happens to coincide with the starting point for a category 1 burglary offence. The judge passed such a sentence notwithstanding a number of greater harm factors. Their presence justifies upward movement from the starting point. In addition, there were a number of aggravating features to which we have already referred. 23. This court in R v McKay [2012] EWCA Crim 1900 , stated that when sentencing an offender who qualifies for a mandatory minimum sentence the correct approach is to apply the Sentencing Guidelines ensuring that the term is no less than the minimum required. The minimum term is not the starting point. In some cases a sentence would be significantly greater. 24. It seems to us that applying the guideline in Cessford's case a significant uplift from the 3 year starting point was required. We have come to the conclusion that a term of at least four-and-a-half years' custody should have been imposed. The term of 3 years was therefore unduly lenient. We give leave to the Attorney-General and in Cessford's case substitute a term of four-and-a-half years' imprisonment for the 3 years imposed below. 25. Turning to Maxwell's case, it is acknowledged by the Attorney-General that given his age at the time of offence there is a basis for drawing a distinction between him and Cessford. There is no evidence of particular immaturity on Maxwell's part beyond that implicit in his chronological age. He was close to the age of 18 when the offence was committed. The Sentencing Guidelines Council's Definitive Guideline on Sentencing Youths demonstrates that in those circumstances the starting point will come closer to that appropriate for an adult. Nonetheless, Maxwell was younger than Cessford and under 18. 26. We also have to take account in his case of Maxwell's significant previous convictions for domestic burglary. We think it fair on the facts of this case to regard him as a somewhat lesser offender than Cessford was. Nonetheless, we are satisfied that the sentence which was passed upon him was one which was unduly lenient. For his involvement in the matter, we consider that a sentence of 33 months was appropriate, that is some 12 months more than the sentence which the judge below imposed. Accordingly, we give leave to the Attorney-General and substitute a term of 33 months for that which was imposed below.

```yaml citation: '[2016] EWCA Crim 1408' date: '2016-07-27' judges: - LORD JUSTICE TREACY - MRS JUSTICE NICOLA DAVIES 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: 201704713/A1 NEUTRAL CITATION NUMBER: [2017] EWCA Crim 2324 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 14 December 2017 B e f o r e : LORD JUSTICE TREACY MR JUSTICE STUART-SMITH HIS HONOUR JUDGE MAYO 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 SAMUEL CLIVE MARTIN POWELL - - - - - - - - - - - - - - - - Mr P Jarvis appeared on behalf of the Attorney General Mr I Worsley appeared on behalf of the Offender - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity ( Sexual Offences (Amendment) Act 1992) , or where an order has been made in relation to a young person. LORD JUSTICE TREACY: 1. This is an Attorney-General's Reference of a sentence he considers unduly lenient. 2. The offender pleaded guilty on the day fixed for trial at Bristol Crown Court and admitted one offence of aggravated burglary and one of common assault. For the first offence he was sentenced to 3 years 9 months' imprisonment, for the second sentence he was sentenced to 4 months' imprisonment consecutive, making a total sentence of 4 years and 1 month. The Reference is brought solely in relation to the first offence, the aggravated burglary. 3. It is of relevance to record that the guilty plea to that offence was tendered after a Goodyear indication had been sought and a written basis of plea agreed between prosecution and defence. That written basis only differed from the prosecution case in that offender disputed punching and kicking the victim of the aggravated burglary as many as two dozen times as the victim had maintained. The indication given was that with credit of about 10% for a late plea the maximum sentence to be imposed on this count would be 3 years and 9 months' imprisonment. Therefore, without such credit the judge must have had in mind a term of around 4 years. 4. The facts show that on 28th May 2017 the offender was at block of flats where the victims, Simon and Jason Tompkinson, lived. The offender's girlfriend, who had once been the partner of another son in the Tompkinson family, lived in the same block with this offender. There was a history of ill-feeling between this offender and that other son. 5. On 28th May the offender was looking for that son but instead at about 10.00 pm saw Jason Tompkinson, his brother, go to his car outside the flats. The offender approached him and asked where his brother was. When Jason said that he did not know the offender punched him in the face causing a graze and some reddening. This was the offence of common assault. 6. The offender then made his way to Simon Tompkinson's flat. He knocked on the door and Mr Tompkinson opened it to see the offender there with a knife in his hand. He tried to shut the door but the offender forced his way in. Mr Tompkinson retreated, terrified, but was followed by the offender who then held the knife to Mr Tompkinson's throat and threatened to cut his head off. There was then a sustained assault in which the victim was kicked and punched. He was also hit in the face with the handle of the knife, causing a cut. The offender also threw items around in the flat and dropped Mr Tompkinson's television to the floor. He threatened to return later unless he was given £600. He then left. 7. In the meantime, Jason had gone to his mother's home address nearby. He told his mother and sister what had happened to him and they then learned of an attack upon Mr Tompkinson Senior. When the family reached his flat they found him slumped on the sofa in the living room, the front door was damaged and there was blood around the flat. Mrs Tompkinson called the police and while waiting saw the offender, who still had a knife handle protruding from the waistband of his trousers. He said he had done what he had done because he was owed money by the other son. 8. Mr Tompkinson Senior was found to have a fracture of his left wrist and cuts and bruises to his face. In addition he has suffered other consequences. He found it very difficult to return to his flat and needed someone to stay with him for his own peace of mind. He now felt he had to leave the flat he had lived in happily for 7 years or so. He has difficulty sleeping, feels pain in his arm and feels his life has been completely changed. Prosecuting counsel wrongly informed the Recorder that there was no victim personal statement so that the Recorder did not have Mr Tompkinson's account of the consequences for him at the time of passing sentence. 9. On behalf of the Attorney General it is submitted that the sentence was unduly lenient because there has been a misapplication of the Sentencing Council's aggravated burglary guideline. Correct analysis of that guideline it was submitted showed this was a category 1 rather than a category 2 case. 10. In this context it is necessary to spell out the particulars of the aggravated burglary count. They allege that the offender entered the flat as a trespasser, inflicted grievous bodily harm on Simon Tompkinson and at the time of committing that offence of burglary had with him a weapon of offence namely a knife. In considering the guideline defence counsel conceded there were factors indicating greater harm but submitted that the only potential higher culpability factor present, namely weapon present on entry, should be disregarded as a form of double counting, since it was inherent in the commission of the offence. Accordingly he submitted that the case fell into category 2 rather than category 1. 11. Prosecuting counsel agreed with that submission and the Recorder accepted it before giving a Goodyear indication. A category 2 case has a starting point of 6 years, with a range from 4 to 9 years, whereas a category 1 case has a starting point 10 years with a range from 9 to 13 years. 12. The Attorney General, correctly in our view, submits that everyone below was in error. That analysis might apply to the form of aggravated burglary where a person enters a property as a trespasser intending inter alia to commit grievous bodily harm and had a weapon with him at the time of entry. The form of offence alleged in this case is complete when grievous bodily harm is inflicted and all that the Crown has to prove is that the offender had the weapon with him at the time of infliction of the injuries. Accordingly the presence of the knife at the time of entry was open for consideration as a higher culpability factor since its presence on entry is not inherent in the offence. 13. We have seen a transcript of the hearing below. It is quite clear that prosecution counsel agreed with a category 2 analysis of the case. As Goodyear clearly indicates at paragraph 70 [2006] 1 Cr App R(S) 6 , prosecuting counsel should remind the judge that a Goodyear indication does not affect the Attorney General's right to refer a sentence to this court as unduly lenient. He should not say anything which may create the impression that the sentence indication has the support or approval of the Crown. Prosecution counsel failed to reserve the Attorney General's position, and although he said nothing to indicate support or approval for any sentencing indication, he had helped to set the scene for the indication given, by his acceptance of the case as falling within category 2 of the guideline. 14. The process of indication was not happily conducted. It took the form of an extended conversation between defence counsel and Recorder, at the end of which the Recorder gave an indication of a maximum sentence of 2 years' imprisonment. 15. At that prosecuting counsel intervened and pointed out that the figures appropriate to a category 2 case are well above that figure and reminded the judge that there was only limited credit available by reason of a late guilty plea. After that the judge gave a Goodyear indication of a term of 3 years and 9 months. There then followed an adjournment after which the offender pleaded guilty and in due course he was sentenced to that term. 16. In passing a sentence based on the very bottom of the category 2 range the Recorder referred to the offender having been out of trouble for about 6 years, his being a relatively young man, the fact that this was not a planned attack and the fact that this would be the offender's first custodial sentence. 17. This offender is now 24 years of age. He was convicted in September 2011 for affray and possessing an offensive weapon. He received a suspended sentence. Prior to that, when he was a young teenager there were convictions for offences of violence. 18. The attack upon Mr Tompkinson was described by the Recorder as a "very fierce" attack, and the combination of physical and psychological consequences have undoubtedly been very significant for a man in his mid-fifties who was already in poor physical health. 19. The Attorney General has sought to depart from the concession as to category made below, on the basis that this arose from a misunderstanding of the law rather than a failure to appreciate whether a particular feature of the case would have the effect of aggravating the seriousness of the offence. It seems to us that the prosecutor's mistake can equally be characterised as falling into the latter category. 20. Mr Jarvis also submitted that there was a public interest in ensuring that errors of this sort are not permitted to create unjust outcomes, lest public confidence in the integrity of the criminal justice system be adversely effected. Moreover, he argued that where the facts are clear, and the offender can have no legitimate expectation that this court cannot be expected to consider the sentence passed on an Attorney-General's Reference. 21. It is right to say that the Recorder himself, having initially given an inappropriate indication of a 2 year term, referred to the possibility of an Attorney-General's Reference. Mr Worsley's written submissions fairly acknowledged that a properly advised defendant would be told that the Crown may seek to refer a case as unduly lenient even in the circumstances of a Goodyear indication. He has frankly told us this morning that after the indication was given he, at that point, had in mind the possibility of an Attorney-General's Reference following and for that reason, did not advance personal mitigation which he had otherwise intended to advance. His concern was that by advancing such mitigation a still lower figure would eventuate and that that would trigger an Attorney-General's Reference. 22. Nonetheless Mr Worsley contends, with a degree of force, that defendants do rely on judicial indications when deciding whether or not to plead guilty and that they should be able to rely on them, particularly in circumstances where prosecuting counsel has agreed a relevant category prior to the Goodyear indication from the sentencing judge. He argued that permitting departure from category on an Attorney-General's Reference in those circumstances would create a real sense of unfairness, and it would have the effect also of undermining the Goodyear process. 23. An erroneous categorisation made by prosecuting counsel after a trial, or where there has been a guilty plea without a Goodyear indication will not normally have the effect of fettering this court if, on analysis, a higher category is warranted by the facts of the case. If an Attorney-General's Reference is brought in such circumstances, the Attorney will need to explain to the court why counsel's concession below is proposed to be departed from - see Attorney-General's Reference (R v Stewart ) [2017] 1 Cr App R(S) 48 ). 24. However, where a concession has been made in the context of a Goodyear hearing, closer consideration will be required. In Goodyear at [71] this court said in the context of Attorney-General's References: "As we have explained, we do not anticipate that counsel for the Crown will have said or done anything which may indicate or convey support for or approval of the sentence indication. If however he has done so, the question whether the sentence should nevertheless be referred to this Court as unduly lenient, and the decision of the Court whether to interfere with and increase it, will be examined on a case by case basis, in the light of everything said and done by counsel for the Crown." 25. In R v Newman [2011] 1 Cr App R(S) 68, a case where a judge departed from an initial indication, but before doing so gave the defendant an opportunity to vacate his plea, this court, in dismissing the appeal, observed that in circumstances where a judge proposes to depart from a Goodyear indication, this must only be done in a way that does not give rise to unfairness. 26. We recognise that the situation in that case was not identical to the present one, but we consider that it is sufficiently analogous for us to pay regard to it. In R v Susorovs [2016] EWCA Crim 1856 , this court considered fairness in the context of an Attorney-General's Reference after prosecuting counsel below had made submissions which were adopted by the court below but not accepted by the Attorney on the Reference. We have had regard to that decision. 27. It is important in the present case to recognise that: (i) There was mention of an Attorney-General's Reference during the hearing albeit not by prosecuting counsel; (ii) It is not suggested that the offender was unaware of the possibility of an Attorney-General's Reference prior to pleading guilty; (iii) Prosecuting counsel's miscategorisation influenced the judge's decision; (iv) Prosecuting counsel said nothing to convey acceptance or approval of the figure eventually reached by the Recorder; (v) Prosecuting counsel had intervened when the judge made the wholly inappropriate indication of a 2 year term and had drawn category 2 to the judge's attention, citing both the starting point and the available range, thereby confirming his earlier agreement that this was a category 2 case. (vi) Importantly, however, prosecuting counsel was not agreeing to any particular figure within the range of 4 - 9 years for category 2 prior to the indication being given; (vii) The overall interests of justice not only involve a consideration of this offender's position but also that of the victim and the wider public interest in just and proportionate sentences being imposed for serious crime. 28. Having weighed the relevant factors of the case itself, we conclude that this case may well have fallen within category 1. It seems to us in any event that the sentence passed was unduly lenient. It also seems to us that it would not be just to permit the Attorney General to go so far behind what was said below as to raise this case into that category. 29. However, to treat this case as falling within the whole range of category 2 would do no violence to what was advanced by prosecuting counsel and no injustice to this offender. Taking the facts as they were, but operating within the confines of category 2 would elevate this case to the top of the category range before making allowance for personal mitigation. We have to say that in our view the Recorder attached rather too much weight to the factors he identified but there remains some personal mitigation available. 30. Moreover, Mr Worsley has told us today that in the light of his concerns about the indication which had been given by the judge he had not advanced other mitigation which might well have benefited this offender. We understand his reasons for not doing so. We commend the frankness which he has shown to us earlier and have no difficulty in accepting his word that there was other mitigation which he could have advanced but did not do so for the reasons already explained. 31. We therefore invited Mr Worsley to place before us the mitigation which he would otherwise have put before the Recorder. Without going into the detail it is clear that this offender had a very difficult and troubled childhood and upbringing and that in his adult life there have been difficulties from which he has suffered. We are satisfied that the picture presented by that mitigation operates as further mitigation which it is appropriate for the court to take into account today. That has a result, in our judgment, of bringing the sentence down from one at or near the top of the category range to something rather below that. 32. In addition, there is credit to be given for the guilty plea, albeit limited by the fact that the plea was belated. We give leave to the Attorney General, and in the light of our finding of undue leniency, consider it appropriate to increase the sentence passed on count 1 but moderating the increase in the way already described in order to achieve fairness in the circumstances of this case. 33. The overall result is that we consider that a just and proportionate term for count 1 is a period of 6 years and we impose that term in place of the term imposed below. The sentence imposed in relation to count 2 remains unaffected as a consecutive term of 4 months. Therefore the overall sentence on this offender is now one of 6 years and 4 months. 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: '[2017] EWCA Crim 2324' date: '2017-12-14' judges: - LORD JUSTICE TREACY - MR JUSTICE STUART-SMITH - HIS HONOUR JUDGE MAYO 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: 201804133/C4 IN THE COURT OF APPEAL CRIMINAL DIVISION [2020] EWCA Crim 1286 Royal Courts of Justice Strand London, WC2A 2LL Wednesday 17 June 2020 LADY JUSTICE CARR DBE MR JUSTICE WILLIAM DAVIS THE RECORDER OF SOUTHWARK HER HONOUR JUDGE KARU (Sitting as a Judge of the CACD) R E G I N A v CONSTANCE HOWARTH 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 G Carter-Stephenson QC appeared on behalf of the Applicant Mr P Greaney QC appeared on behalf of the Crown J U D G M E N T LADY JUSTICE CARR: Introduction 1. On 21 March 2007 in Preston Crown Court, the applicant, now 51 years old, was convicted by a unanimous jury of conspiracy to murder, contrary to section 1(1) of the Criminal Law Act 1977. On 8 May 2007 she was sentenced to life imprisonment with a minimum term of 20 years. Her application for leave to appeal against sentence was dismissed in 2007 ( [2007] EWCA Crim 2928 ). 2. She was tried alongside two co-accused, Ian McLeod ("McLeod") who was also convicted of conspiracy to murder, and Warren Mason ("Mason") who was acquitted of conspiracy to murder. Robert Spiers ("Spiers") had fled abroad in the aftermath of the incident in question but was extradited in 2009 and convicted in 2009 in a second trial. 3. This is the applicant's renewed application for leave to appeal against conviction alongside a necessary application for an extension of time of some 11 ½ years. We have had the benefit of submissions from Mr Carter-Stephenson QC for the applicant and Mr Greaney QC for the respondent. The facts 4. The prosecution's case was that between 4 and 13 March 2016 the applicant, Spiers, McLeod, Richard Austin ("Austin") and Carlton Alveranga ("Alveranga") were engaged in a conspiracy to murder. The conspiracy reached its conclusion in a shooting in a public house on 12 March 2006. On that day, a Sunday, at about 2.15pm, two masked armed men, being Austin and Alveranga, entered the Brass Handles Public House in Pendleton, Salford. It was a family pub and a football match was being aired on the television at the time. The two men went immediately to a room known as The Vault where David Totton ("Totton") was sitting with Aaron Travers ("Travers") and fired a number of shots in their direction. Totton and Travers were seriously injured but survived. The gun fire caused mass panic inside the public house. However, a number of customers fought with the gunmen and disarmed them. During the struggle, the two gunmen, Austin and Alveranga, were themselves shot and fatally wounded. They fled from the public house before collapsing and dying a short distance away. 5. The relevant background is as follows. In 2006 two gangs in Manchester were at war with each other: the Doddington gang and the Gooch gang. There had been a series of “tit for tat” shootings involving the two rival gangs which had resulted in fatalities, in particular the death of Ramone Cumberbatch, a known Doddington gang member and boyhood friend of Austin who was shot dead by a known Gooch gang member in September 2005. In the same year a further known Doddington gang member, Jonathon Crawley, was also shot dead. A 19-year-old member of the Gooch gang was convicted of and is currently serving a life sentence for that murder. 6. McLeod was the leader of the Doddington gang of which Austin and Alveranga were also members. Marcus Callaghan ("Callaghan") was a member of or associated with the Gooch gang. Callaghan was in the Brass Handles Pub at the time of the shooting. Totton and Travers were shown by way of police enquiries not to have been regular drinkers in the Brass Handles Public House. Their presence there on that day was purely by chance. But they had been out in the North nightclub the night before the shooting with Callaghan, Anthony Richards and other males from the Salford area. Also present in the nightclub that night were various members of the Doddington gang, Ryan McLeod, Mason and three unnamed others. Some sort of incident occurred within the night club. The group, including Totton, Travers and Callaghan, had gone from the nightclub to a party on the estate behind the Brass Handles Public House and then decided to go on to the public house to continue their drinking. 7. It was the prosecution case that the applicant was in a conspiracy to murder with Austin and Alveranga, McLeod, Mason and Spiers. The intended victim was someone inside the public house, probably but not certainly Totton and/or Travers. Reliance was placed on the following evidence: 8. on the day of the shooting the applicant was interviewed at the police station as a witness. She gave an account that she had been watching football at the Brass Handles Pub but had been in the toilet when the shooting took place. Within minutes of her leaving the police station telephone evidence showed that she had been in contact with telephones linked to Spiers and McLeod; 9. telephone contact between the applicant, McLeod and Spiers. Of the nine contacts from McLeod to the applicant between 1 January 2006 and 12 March 2006, six were made on 12 March. Of the 35 contacts from the applicant to McLeod over the same period, 14 were made on 12 March 2006. Of the seven contacts from McLeod to Spiers over the same period, five were made on 12 March 2006. Of the four contacts from Spiers to McLeod over that same period, all were made on 12 March 2006. Of the two calls from Spiers to the applicant between 18 January 2006 and 12 March 2006, both were made on 12 March 2006. All calls from the applicant were made using the number ending 752; 10. the applicant was in the public house in the immediate lead up to the shooting and in heavy contact by telephone with both McLeod and Spiers in that period. At the moment the gunmen entered the Brass Handles Pub she left the room to go to the toilet; 11. on the day of the shooting, the applicant concealed her connection to the 752 handset from DC Fernandes and from the investigators when interviewed under caution (save for the final interview) and also the fact that she disposed of the 752 handset in the immediate aftermath of the shooting; 12. the handset and SIM cards for McLeod's 420 number and Spiers' 148 and 493 numbers were not recovered despite address searches having been undertaken. An inference was that they too were disposed of. 13. The applicant was arrested on 9 May 2006. Police searched her address and found two mobile telephones in the lounge. Neither of these was the 752 phone on which she had made and received calls on 12 March. Following her first interview on 10 May 2006, the applicant handed in a prepared statement and refused to answer any more questions. 14. The applicant worked for PMS Securities, later known as Icarus. Spiers was one of the directors and managers of PMS and the applicant would report to him and other managers. Spiers was a Salford man and she would socialise with him in the Brass Handles public house. No weapons were ever recovered and someone inside the public house tore out CCTV equipment immediately after the shooting, with the result that CCTV evidence of the inside of the pub was not available. 15. The defence case was a denial of any involvement in conspiracy to murder, either as a spotter or any other role. The applicant gave evidence at trial. The Brass Handles was her local public house and she had every reason to be there that Sunday. It was not the usual public house frequented by Totton and Travers and she could not have known in advance that they would be in there. She was in the lounge at the time of the shooting with a limited view to The Vault and unable to communicate the position of anyone there. She was in the ladies’ toilet when Austin and Alveranga entered The Vault and she only knew that something was wrong when she heard sounds like a fire cracker, followed by people rushing into the toilets. She admitted that she had lied about her work for PMS and by saying that she did not know Travers. The reason that she had disposed of the 752 telephone was because she had been receiving threatening calls on it and wanted nothing more to do with it. Disclosure application 16. We record at the outset that Mr Carter-Stephenson's position was that today's hearing should be treated as a directions hearing only in order to make extensive disclosure orders. In particular, the applicant contends that there has been a failure, predominantly due to a failure by the applicant's former legal team to make the relevant requests, to disclose material going to the suggestion that this was inter-gang related violence with Callaghan, who was in the Brass Handles public house at the time of the shooting, as the target. The execution of such a plan did not need the applicant as a spotter. There was no evidence that the applicant knew Callaghan. 17. To this end a schedule of some 37 disclosure requests has been produced. Overnight, having been invited to participate by the court at short notice, Mr Greaney produced a fulsome response to that schedule. We rely on its content as a whole. 18. In the light of that response, Mr Carter-Stephenson limits his application for disclosure today to two requests only: requests 9 and 27 of his schedule. Request 9 relates to all telephone data held in relation to PMS between 1 January 2006 and 30 March 2006. Request 27 relates to the disclosure of CCTV footage from cameras around the area outside the pub. 19. As for request 9, Mr Carter-Stephenson submits that it is necessary to see this material in order properly to set out the applicant's case at trial. Reference is made to a telephone chart produced on behalf of the applicant showing the IMAC landline dates for the PMS activity. As for the CCTV footage the subject of request 27, the submission for the applicant is that this footage is central to the applicant's case. Concern is expressed at the information now provided by the respondent to the effect that there is no sufficiently high-quality footage available for any meaningful identification to take place. Mr Carter-Stephenson submits that the CCTV footage would establish the timeframe of the events, provide clarity as to the arrival of the group from the party beforehand and establish who in the group was of potential proximity to the two victims and Callaghan. 20. We note that on 12 August 2019 the applicant's solicitor confirmed to the Criminal Appeal Office that the application for leave was fit for consideration without more and that the papers were ready to be placed before the single judge. It is not clear to us what has changed since then and why the applicant suggests that the application is now not fit for consideration by the court. For these reasons and for further reasons which will become apparent, we decline to take the unusual course of considering further disclosure directions at this stage before considering the question of leave. Mr Carter-Stephenson was invited to proceed to his submissions on the full renewal application, which he duly did. Grounds of appeal 21. The over-arching submission for the applicant is that as a result of material non-disclosure during the course of the trial, either because of a failure by the prosecution to disclose or a failure by the defence legal team properly to examine the issues, the whole presentation of the case against the applicant was affected. She was prevented from putting forward the alternative hypothesis that this was gang-related violence which would not have involved the need for a spotter, which she was expressly identified as being by the prosecution. 22. The grounds of appeal are developed as follows: Ground 1. Material was not disclosed by the prosecution or requested by the defence which demonstrated that the contact between the applicant's telephone and that of McLeod and Spiers was consistent with ordinary business contact predating any suspicion of conspiracy. The prosecution was in possession of telephone records for the mobile telephones of the applicant, Spiers and McLeod from at least early January 2006 on but failed to disclose that material. There was also, it is suggested, a failure to disclose the landline records for PMS and IMAC. If these documents were not available because of a failure by the defence team to inspect or press, then the applicant, it can be said, did not receive a fair trial. 23. Ground 2. Complaint is made that the content of text messages between the mobile phones of the applicant, McLeod, Spiers and others were not obtained by the prosecution or, if obtained, not disclosed or requested by the defence. The content of the text messages, although limited, would have shown that the applicant's innocent explanation for the telephone calls was correct and that those who were to be involved in the ultimate shooting were already moving towards carrying out the planned shooting prior to any mobile telephone contact with the applicant, a matter wholly inconsistent with the prosecution's case. In response to the respondent's indication that the telephones had simply never been available for inspection on behalf of the prosecution, the suggestion is made that the service providers should have been contacted in an attempt to obtain the material in question; 24. Ground 3. Despite being in possession of a substantial amount of intelligence material relating to the alternative motive of inter-gang violence for the shooting, other than that being advanced by the prosecution, there was no disclosure of such material. This is said to be "a major failing". An alternative motive would have negated the case against the applicant and her alleged role in the conspiracy. Reference is made to admissions made in the Spiers' trial and the manner in which the case was opened against the applicant where she was expressly identified as a spotter. It is said that this was crucial material which should have been part of initial disclosure and it would have put a very different complexion on the case; 25. Ground 4. Despite being aware from the unused material of the presence at the scene of the shooting of Callaghan, the applicant's representatives made no request for disclosure of this gang-related intelligence material. Again, this it is said would have undermined the case against the applicant, premised, as we have indicated, on her being a spotter; 26. Ground 5. It is said that there was undisclosed CCTV footage which would have shown movements of the rival gang just before and after the shooting. The footage which was disclosed only commenced after the shooting took place; 27. Ground 6. The defence legal team failed to make an application to exclude the interview of the applicant not under caution on the day of the shooting when she was clearly under the influence of alcohol. It is said that what she said was damaging, firstly because she lied, and secondly because she omitted material facts on which she was later cross-examined; 28. Ground 7. Although it is conceded that an application would have been unlikely to succeed, complaint is made that no consideration was given to an application to seek severance of the trial of the applicant from that of her co-accused. There may, in the light of gang-related material disclosure, have been a conflict between her and her co-accused. The application, it is suggested, should have been made; 29. Ground 8. Complaint is made that those representing the applicant failed to advise her of the need to call evidence from Spiers. It is suggested that there should have been a request to delay the trial in order for him to be extradited back and also a failure to cross-examine a Crown witness, Brian Higgins. 30. Finally, as for delay, it is submitted that, given the merit in the appeal, it would be in the interests of justice for the necessary extension of time to be granted. It is said that the applicant originally received negative advice on appeal. A number of authorities have been referred to, with particular reliance being placed on R v King [2000] 2 Cr App R 391 where an extension of time of twelve-and-a-half years was granted. The Respondent's position 31. The respondent maintains that the application is unarguable with or without the disclosure sought. The application is more than a decade out of time. The grounds lack any real substance and are in material respects inaccurate, as set out in a full Respondent's Notice. It is also said that the applicant has failed to acknowledge that the disclosure test at this stage is that stated by the Supreme Court in R v Nunn [2015] AC 225 (as summarised accurately in the Attorney General's Guidelines on Disclosure at paragraph 72). Analysis 32. We address the question of delay first. An extension of time will only be granted where there is good reason to give it and ordinarily where the defendant will otherwise suffer significant injustice: see R v Hughes [2009] EWCA Crim 841 at [20]. The principled approach is to grant an extension if it is in the interests of justice to do so: see R v Thorsby [2015] EWCA Crim 1 . The court will examine the merits of the underlying grounds before making a decision on whether to grant an extension of time. 33. The delay in advancing this application is vast, almost eleven-and-a-half years. Even taking on board the fact that the applicant originally received negative advice on the merits of the appeal, there is no sensible justification for the delay since then, nor has any proper explanation been advanced, in particular as to why the matter was not progressed in the context for example of Spiers' trial in 2009. The issue that now excites the applicant, namely whether another, Callaghan, was the intended target of the shooting by members of a gang with whom she had no involvement was very much in issue in that trial. The applicant had a close association with Spiers, and they instructed the same solicitors. Nor was the matter progressed in 2013 when disclosure requests were made on her behalf and refused (in 2014). The applicant instructed her present solicitors in December 2014. 34. There is little or no explanation for the delay in question. Moreover, the delay has caused real prejudice given that the applicant's trial leading counsel has now sadly died and her trial junior counsel, who retired some 11 years ago and no longer has any of his case notebooks, can remember very little by way of assistance. The original prosecution legal team is also no longer available and fresh lawyers and police officers have had to be brought to the case. 35. R v King (supra) involved a "special and unusual" situation (see [53]) where it was clear that the appeal was bound to succeed and where to refuse leave because the application was out of time would have resulted in an application to the Criminal Cases Review Commission, followed by a successful reference to this court. As the court said (at [52]) it is "very rare" to grant an extension of time of such magnitude. In our judgment, in order for an extreme extension of the necessary length here to be granted there would have to be a compelling case indeed on the merits. 36. Against this background we turn to consider the merits, taking each ground in turn. We note at the outset that the applicant was represented throughout trial by experienced leading and junior counsel. 37. As for ground 1, there is no good reason to doubt the respondent's fully particularised statement that the material referred to (other than material relating to PMS and IMAC) was in fact disclosed, either as part of the prosecution case or as unused material. Further, the applicant was always able to assert that her telephone contact on 12 March 2006 was not out of the ordinary. However, the analysis of the evidence of the applicant's telephone contact with Spiers and McLeod demonstrated precisely the contrary. As for the PMS/IMAC landline records, the subject of disclosure request 9, it was not in issue that PMS and IMAC had had dealings with each other prior to the shooting. No disclosure was required and in any event the data is no longer available despite the best efforts of the respondent. 38. Ground 2 is also unsustainable. The content of the text messages was and is unavailable since investigators were unable to recover any of the relevance devices, including the applicant's own handset containing the 752 number which the applicant had herself disposed of. There was no arguable failure to disclose. As for the suggestion that service providers could have been contacted, it is entirely unclear what the outcome of any such enquiry would have been. It is purely speculative. As for the applicant's analysis of the prosecution case in respect of the interplay between McLeod, Spiers and the applicant, the fact is that the prosecution case satisfied two juries and it is not for us to re-assess its strength. 39. It is convenient to take grounds 3 and 4 together. The applicant's defence statement, even as amended, did not give rise to any disclosure requirement relating to gang warfare. Nor can it be said that the material was disclosable on the basis that it would have undermined the prosecution case. The prosecution did not advance any particular motive and its case did not depend on establishing the identity of the intended target, as to which it was equivocal. The case was put on the basis that the intended victim was someone inside the public house, probably but not certainly Totton and/or Travers. 40. The respondent describes the Callaghan theory as "highly speculative" not least since Callaghan is of mixed heritage and bears no resemblance to either Totton or Travers. The theory failed in the 2009 trial of Spiers. The respondent has confirmed in terms that at the time of trial the police held no information to suggest that Callaghan was the intended target of the shooting. 41. The Callaghan theory would also have involved the applicant effectively accusing McLeod of organising the shooting because of gang rivalry. Given the applicant's close contact with him, that would not have exonerated her. The case against her based on her telephone contacts and, for example, lies and disposal of the handset with number 752 would have remained. 42. Finally, advancing the theory would have exposed the applicant to the likelihood, if not certainty, of her previous convictions for perverting the course of justice in the context of a serious gangland murder and firearms offences being admitted before the jury. 43. As for ground 5 and the complaint made in relation to CCTV footage, the applicant accepts that the footage from the Brass Handles public house was stolen after the shooting and so is unavailable. She therefore targets CCTV footage from other cameras situated around the public house. It does not seem to us that the matters that it is suggested might be revealed from that material are of any real significance, for example Austin and Alveranga entering and leaving the public house or Totton and Callaghan entering the public house, which they clearly did. The timings were largely not in dispute. Further, the respondent has retrieved other footage and converted it. It has reviewed a third of that material and found nothing of sufficient quality to assist in identification. In any event and again, the case against the applicant based on her telephone contacts and for example lies and disposal of her handset would have remained. Further and as before, any attack on others by the applicant risked the jury learning of the applicant's bad character. 44. As for ground 6, at the time of the interview in question the applicant was not a suspect. The officer took the view that the applicant was fit to be interviewed. She herself stated at the time that she was neither drunk nor sober, but "sociable". The applicant was able to tell the jury that she had been drinking at the time. The question was one of reliability not admissibility. In any event, given the applicants later repeated lies in interview under caution, the admission of this evidence could not arguably render the conviction unsafe. 45. Moving on to ground 7, an application to sever would have been doomed to failure; the applicant concedes that it was unlikely to have succeeded. This cannot be said to have been an exceptional case justifying severance in a trial of alleged co-conspirators. 46. In relation to ground 8, Spiers was not available to give evidence, having fled the jurisdiction. If he had been available he would have been in the dock alongside the applicant. Cross-examination of Higgins might have implicated Spiers but would not have exonerated the applicant. Taken at its highest, Higgins' evidence would have made no difference to the outcome of the applicant's case. We note that Higgins gave evidence at Spiers' trial. 47. We conclude our analysis by considering the general complaints made on behalf of the applicant of failures on the part of her former legal team properly to represent her. Amongst other things, the complaints demonstrate quite how prejudicial the huge delay in this application has been, given that there can be no longer be meaningful response from the applicant's previous representatives. We cannot identify any arguable substantive failures. 48. For all these reasons, we do not consider that the appeal stands a real prospect of success and it would not be in the interests of justice to grant the necessary extension of time. We dismiss the application for an extension of time and leave to appeal against conviction. We do not do so without thanking both leading counsel again for their helpful assistance and in particular for the quality of their written 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: '[2020] EWCA Crim 1286' date: '2020-06-17' judges: - LADY JUSTICE CARR DBE - MR JUSTICE WILLIAM DAVIS - HER HONOUR JUDGE KARU ```

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Neutral Citation Number: [2017] EWCA Crim 445 Case Nos: 201601636/B1-201601637/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 23 March 2017 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE JAY MR JUSTICE GARNHAM - - - - - - - - - - - - - - - - R E G I N A v MICHAEL DEAN MEANZA - - - - - - - - - - - - - - - - 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 B Richmond QC appeared on behalf of the Applicant Mr W Emlyn Jones appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE JAY: On 2nd March 2016, at the Central Criminal Court, the appellant was convicted of the murder of Ms Jenny Foote. On the same day he was sentenced by His Honour Judge Bevan QC to life imprisonment, with a minimum term of 24 years less time spent on remand. He appeals against his sentence with the leave of the single judge and renews his application for leave to appeal against conviction. 2. The appellant suffers from paranoid schizophrenia and anti-social personality disorder. He had been obliged to reside at Collette House following his discharge in April 2015 from a section 37 hospital order, with a section 41 restriction order imposed in 1996 for an offence of common assault. Ms Foote was employed as a care worker at Collette House. 3. At about 2.46 am on 26th July 2015 Ms Foote attended the appellant's room and asked him to turn his TV down following a complaint. At about 6.00 am the same morning the appellant was seen on CCTV attending the locked office where Ms Foote was based. She partially opened the door whereupon the appellant burst into her office. He punched and kicked her, beating her about the head with a fire extinguisher. The appellant left, returned to the office, hitting the deceased again. He then left the property. 4. The police arrived at 6.57 am and Ms Foote was pronounced dead by paramedics at 7.24 am. 5. The findings at post mortem were of multiple blunt impacts to the head with facial fractures and evidence of traumatic brain injury. There were other traumatic injuries including fractures to the left jaw and cheekbone. 6. The evidence was that the initial attack lasted about 8 minutes and then the appellant returned to the scene for about 2 minutes. The expert evidence was that the deceased would not have survived for more than any brief period of time. 7. The appellant's principal defence was one of manslaughter on the ground of diminished responsibility. This was ultimately rejected by the jury and no appeal point arises. The appellant also ran the defence of loss of control. 8. There were at least two evidential strands of potential relevance to that defence. First, after the appellant was asked to turn down his TV he feared for his future at Collette House. Previously he had received warnings and was anxious that he would be recalled to hospital and separated from his girlfriend. Secondly, the appellant's meetings and encounters with his girlfriend had to be on a supervised basis for a number of reasons, including her own psychological and learning difficulties. The appellant felt aggrieved that doctors made his girlfriend take contraception, denying him a child. 9. On 29th February 2016 His Honour Judge Bevan QC withdrew the defence of loss of control from the jury. He held that there was no doubt that the appellant did harbour a sense of grievance and that he may well have lost his control on this occasion. However, the judge ruled that a number of the qualifying triggers were not satisfied: in particular, the hospital order from which many of his grievances stemmed was lawfully imposed and entirely reasonable. The restrictions governing the appellant's relationship with his girlfriend were in the same category, and in any event an individual, with a normal degree of tolerance and self restraint, would not have lost his control in these circumstances. 10. When His Honour Judge Bevan QC came to sentence the appellant he took a starting point of 15 years' imprisonment for the minimum term. Further, he identified a number of aggravating factors. These included the appellant's previous convictions for offences of violence, the use of a weapon (the fire extinguisher), the appellant's "threatening and aggressive nature", the fact that the deceased was performing a quasi-public function and the degree of premeditation which must have been involved (a period of up to 3 hours). The judge was satisfied that the appellant represented an ongoing danger and would be "likely to do so for long as you have your physical faculties". Overall this was seen to be a grave example of its kind and justified a minimum term of 24 years' imprisonment. 11. Mr Bernard Richmond QC renews his application for leave to appeal against conviction. He submits that the judge should have left the issue of loss of control to the jury. Specifically, he submitted that the key point, or at least one of the key points here, is that the appellant was asserting that he was being manipulated by the way in which he was allowed access to his girlfriend and have contact with her. There was psychiatric evidence to that effect. Essentially because of his psychiatric condition the jury were entitled to consider whether the relationship was being used as a "carrot on stick" control mechanism. Further, Mr Richmond submitted that the appellant had, or at least might have had, a mounting sense of grievance and that this was justifiable from his point of view. Of course Mr Richmond was entitled to submit that in terms of the defence loss of control, his client only bore an evidential burden. 12. We have carefully considered those submissions but we cannot accept them. We entirely agree with the single judge that there were here two insurmountable obstacles that the appellant faced: first, the combined effect of section 54(1)(b) and section 55(4) of the Coroners and Justice Act 2009, is that the appellant had to demonstrate an arguable case that the circumstances leading to his loss of control "caused [him] to have a justifiable sense of being seriously wronged". The emphasis must be on the adjective "justifiable". The appellant could have no justifiable grievance in relation to hospital and restriction orders that were lawfully imposed, nor in relation to the restrictions upon his relationship with his girlfriend. Further, as the judge refusing leave on the papers noted, playing a TV too loudly in the early hours of the morning constituted a breach of the hospital rules which the deceased was duty bound to report and further, the appellant could not have known what the consequences to him, in terms of rights of occupation, would or might have been. 13. The second insurmountable obstacle relates to section 54(1)(c), namely whether a person of the appellant's age and sex, with a normal degree of tolerance and self restraint in his circumstances, might have reacted in the same or a similar way. The appellant's mental illness is excluded from account for these purposes, as Mr Richmond was bound to accept. It is obvious, in our view, that the appellant just could not fulfil this condition. In our view, the single judge in his lengthy and precise written grounds was entirely correct in concluding that the defence of loss of control could not be made out. 14. For the avoidance of any doubt we have looked further and considered the issue of diminished responsibility but we are entirely satisfied that no appeal point arises in that regard. 15. The grounds of appeal against sentence are that this was an attack of short burst, as Mr Richmond put it, by a man with serious and complex psychiatric problems. Some of those problems (not all of them) were difficult to treat and in particular the anti-social personality disorder. The danger he presented to the public should not serve to enhance his minimum term because the Parole Board would be duty bound to consider that in any event. The point of the minimum term is to fix the "tariff" which is appropriate to deal with matters of punishment and deterrence. Matters of public safety arise subsequently for the consideration of the Parole Board. Further, Mr Richmond submitted that the judge exaggerated the extent and nature of the appellant's record for offences of serious violence. Overall, submitted Mr Richmond, this was not deliberate or wicked action. 16. We have carefully considered these grounds as amplified skilfully by Mr Richmond in oral argument. We should make clear that we do not accept all of his submissions. Given that His Honour Judge Bevan QC presided over the appellant's trial we should be slow in interfering with his sentence. There is no patent error of principle. The judge was entitled to conclude that the appellant is dangerous. However, as has already been pointed out, the issue of dangerousness is for the Parole Board in due course, taking into account all the available evidence at that time, including evidence of the appellant's conduct and mental state in prison over what will be many years. 17. In our view there is weight in the submission that the judge placed excessive emphasis on this factor and downplayed the salience of the appellant's psychiatric history being a matter which in general terms served to lessen his overall culpability or, at the very least, to diminish the force of the aggravating factors. We are therefore driven to conclude that His Honour Judge Bevan QC did impose a manifestly excessive sentence. The minimum term in this case should have been one of 21 years less time spent on remand, which we understand to be 217 days. To this extent the appeal must be allowed.

```yaml citation: '[2017] EWCA Crim 445' date: '2017-03-23' judges: - MR JUSTICE JAY - MR JUSTICE GARNHAM ```

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 1720 Case No: 202002937 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LEICESTER HIS HONOUR JUDGE T. J. SPENCER QC T20187376 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19.11.2021 Before: LADY JUSTICE THIRLWALL DBE MR JUSTICE ANDREW BAKER and MRS JUSTICE THORNTON - - - - - - - - - - - - - - - - - - - - - Between: AAM Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Matthew Scott appearing on behalf of the Applicant/Appellant Phil M Gibbs appearing on behalf of the Respondent Hearing dates: 27.05.2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be Friday, 19 November 2021 at 10:30am. LADY JUSTICE THIRLWALL DBE: 1. This is the judgment of the court to which we have all contributed. The provisions of the Sexual Offences (Amendment) Act 1992 apply to the offences in this case. Nothing relating to the victim of the offences 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 any of the offences. This prohibition applies unless waived or lifted in accordance with s.3 of the Act. To protect the victim’s identity the appellant’s name has been anonymised. 2. On 12th March 2020 in the Crown Court at Leicester the appellant was convicted after a trial of two counts of rape. This is his appeal against conviction which he brings with the leave of the single judge. 3. The victim of both offences was his wife. They separated in December 2014 and are now divorced. The offences took place during the latter stages of the marriage, between February 2010 and December 2014 when the appellant left the family home. The two children of the marriage remained with their mother. 4. Count 2 was a single rape. For that offence the appellant was sentenced to 7 years imprisonment. Count 3 concerned 20 occasions of rape during the period on the indictment. The sentence was 8 years imprisonment to run concurrently with the sentence on count 2. 5. The ground of appeal on which leave was given is that the judge omitted to give a bad character direction in respect of evidence of reprehensible behaviour that was placed before the jury by agreement. Leave was refused on other grounds and Mr Scott, who did not appear at trial, made no application to renew. 6. Mr Gibbs, who prosecuted at trial and on the appeal, accepts that the judge did not give any particular direction about the evidence of reprehensible behaviour and now says he should have done so. He did not make that submission at trial nor did counsel for the defence. He submits that the convictions are nonetheless safe. Background 7. The appellant originally faced an indictment of three counts covering conduct between February 2010 when the complainant was diagnosed with Multiple Sclerosis and December 2014 when the appellant left the family home for good. Count 1 was an offence of controlling and coercive behaviour over the same period contrary to section 76 of the Serous Crime Act 2015. A jury was sworn in and the case opened before it was appreciated that the Act was not in force at the time of the conduct complained of. The jury was discharged and count 1 was removed from the indictment. A fresh jury was sworn, and the trial took place on counts 2 and 3 only. All the evidence that was to have been called in support of count 1 was, by agreement, called in the trial of counts 2 and 3. We shall refer to this as evidence of reprehensible behaviour. Evidence at trial 8. At the heart of the case was detailed evidence from the complainant on counts 2 and 3. Whilst there had been a number of incidents earlier in the marriage where the appellant had overborne her will during sexual intercourse, she had felt able to and had objected. Whilst the appellant did not accept that he had acted against her will in those early days he did apologise at the time for the way he had behaved. After the diagnosis of multiple sclerosis, the complainant had minimal feeling below the waist for a prolonged period. It was her account that the appellant repeatedly raped her as she was unable to push him off. He was aggressive and on occasions caused injuries to her. In addition, he had a number of sexual preferences which she found abhorrent. 9. There was evidence of recent complaint from a long standing friend of the complainant who gave evidence of a number of occasions when the complainant told her she had been raped in the days before their conversation. It was put to the friend that most complaints were made after the marriage was over. The friend stood by her evidence that the complainant told her at the time. The complainant’s sister also gave some evidence of recent complaint. 10. Much of the sexual conduct alleged was admitted by the appellant. He was adamant that the complainant had been a willing participant in all of it. As to the allegations of rape, he said all sexual intercourse had been consensual. Save for two occasions before the children were born when they had vigorous intercourse, the complainant had never sustained injury, he said. 11. The central issue on both counts was consent and reasonable belief in consent. 12. The appellant called his current partner to say that he had never sought to have sexual intercourse without her consent, even though she had recently had major surgery and a prolonged period of abstinence. Evidence of reprehensible behaviour 13. The evidence of reprehensible behaviour fell into several broad categories including: i) Financial control and meanness ii) undermining and humiliating the complainant in front of others iii) trying to prevent her from seeing her friends iv) uncontrolled bad temper/anger with the threat of violence and some occasions of violence v) lack of care for, bullying and hostility towards her when she was suffering from multiple sclerosis. 14. Evidence about the behaviour came from the complainant, her mother, sister, father and the friend to whom we referred above, known as H. The complainant said that his behaviour was so aggressive that she and the two children of the marriage would be in a constant state of fear. They kept their heads down whenever the appellant was in the house. He kept her short of money so that she felt trapped in the relationship. Her evidence was robustly challenged in cross examination. 15. It was the appellant’s case in evidence that the allegations were either untrue or exaggerated. He accepted he could get “shouty” but did not accept that he was aggressive. He had on one occasion hit the complainant in the face by accident when, in the middle of an argument he had turned to face her, she was closer than he thought, and he struck her in the face. He denied all other violence and threats of violence. 16. As to financial meanness, it was agreed that when the complainant was diagnosed with multiple sclerosis the appellant’s immediate thought was to obtain a pay-out on critical illness insurance. The complainant wanted the money to be protected for the children. It was her account that the appellant did not agree with that. He wanted to use the money to pay off the mortgage, he said. In the event, arrangements were made for the children to benefit from the money in due course. 17. The appellant did not accept that he was in any way controlling of his wife and family. 18. Considerable emphasis was placed by the Crown upon an incident which marked the end of the marriage in December 2014. There had been an argument. The appellant lost his temper with their daughter, F, who was then aged 7. He dragged her upstairs and threw her into her bedroom. The complainant and the daughter were very frightened by this. The complainant told the appellant to leave the family home, which he did. He did not return. He said at trial that the complainant had asked him to be more involved in disciplining F and that he had been heavy handed. He did not accept that he had deliberately hit F. 19. It was the appellant’s case that the allegations of other reprehensible behaviour had been fabricated or exaggerated so that the complainant could explain why she did not complain about the rapes until a court order had been made in the divorce proceedings finalising arrangements for his contact with the children in 2017. It was his case that it was the court order that prompted the complainant to make the allegations of rape, which, he said, were also fabricated. Diaries 20. The complainant kept a paper diary for years. The appellant read it on occasion during the marriage. When cross examined about the absence of any reference to sexual misconduct by the appellant she said, “I made a diary all the way through the abusive things that happened and who witnessed it, of the physical abuse”. She said that she had “left the sexual bit out because it was so dirty. The things he did were really degrading”. 21. The appellant told the jury that he too had kept a paper diary for many years. He had recorded all the details of his sex life with his wife, in case it should ever prove necessary to refer to it. He had, he told them, mislaid the paper diary before the breakdown of the marriage, in 2014, and had reconstructed it electronically in 2017, having previously summarised it before losing it. It was not easy to follow his reasoning in respect of this and he did not produce a diary to the jury. It was the Crown’s case that in keeping the diary he was preparing for the day when his wife would eventually complain of rape. Admissibility of evidence of reprehensible behaviour 22. Subject to certain safeguards under the provisions of the Criminal Justice Act 2003 (CJA) and section 76 of the Police and Criminal Evidence Act 1984 (PACE), evidence of reprehensible behaviour/bad character is admissible if it is probative of the offence charged. 23. Mr Scott accepts that the evidence of reprehensible behaviour was all admissible as having to do with the facts of the offences, as described in section 98(a) of the CJA (i.e. not evidence of bad character). It would also have been admissible, he submits, pursuant to section 101(1)(a), evidence of bad character admitted as a result of an agreement between the parties. Mr Gibbs agrees with both of these submissions. 24. Evidence of controlling and/or coercive behaviour, if accepted, can support allegations of rape, particularly on the issue of consent and reasonable belief in consent. It can be good evidence of a tendency to override the wishes and feelings of the controlled person. It is also well understood that rape can be part of a pattern of control and coercion. 25. We are satisfied that the evidence was admissible under section 98(a) as having to do with the facts of the offences. The fact that all agreed that the evidence should go before the jury shows that it was understood by all that it was all relevant and probative of the issues before the jury. Whether, if that were wrong, it might have been admissible under the bad character provisions in the CJA matters not. 26. The issues to which all the evidence of reprehensible behaviour went were consent and whether the appellant reasonably believed the complainant was consenting. The Appeal 27. Mr Scott referred us to the judgment of this court given by Simon LJ in R v RJ [2017] EWCA Crim 1943 at para 44 in which he referred to a passage in Blackstone Criminal Practice 2018 which reads; “ As the editors of Blackstone Criminal Practice 2018 at F13.11 note the dividing line between cases involving bad character evidence and cases falling within S98 is fine: and this is a reason: “…for the Court to have in mind the safeguards attached to the former when considering the latter, and to consider appropriate directions to the jury on the use to which it should be put and, if appropriate, the weight they should attach to that evidence.”” 28. Mr Scott also relied on the decision of this court in R v MA [2019] EWCA Crim 178 a case where some evidence of violent and controlling behaviour was held properly to have been admissible under section 98 and other evidence was properly admissible under section 101 (in various subcategories). The trial judge gave a specific direction in respect of incidents of violence alleged by the complainant against the appellant in that case. He explained to them that they had heard about the violence as it was the prosecution’s case that the appellant controlled the complainant and used physical violence as part of that control. He reminded them that the case was about allegations of rape, not of physical violence, and that if they were sure the acts of violence occurred but were unsure of any of the allegations of rape they must acquit the defendant of the counts of rape. 29. This court accepted the submission that the direction was not sufficient. Irwin LJ said what was required was “a carefully crafted direction that dealt with the problems arising from the evidence, the risk of prejudice, and assisted the jury as to how to apply this evidence in reaching their conclusions.” 30. The court considered that this would be so of the case before them even were all the evidence properly to have been admitted under section 98. The suggested approach was [47] “something like the following: “[48] First that the judge should identify to the jury in a simple fashion, but clearly, what evidence they were to consider in the way he was about to indicate. [49] Secondly, to repeat the obvious point that, unless they were sure of this evidence, they should discard it. If they were unsure of part of it, they should disregard it and discard it. [50] Thirdly, to tell them that this category of evidence, however admitted, could not amount to direct proof of the guilt of the applicant. [51] Fourthly, if they were sure of the evidence, or the extent to which they were sure of it, what could it show? Here a simple direction that it bore on W’s relationship to her husband and his attitude to her would have sufficed. 31. At [52] the court dealt with specific details in that case and at [53] said that: “They then should have been told in straightforward terms, that if they accepted all this evidence, it could show it was more likely that the husband would override the lack of consent of the wife.” 32. Mr Scott, who appeared for the appellant in MA , submits that the judge in this case should have taken the approach set out in MA and failed to do so. Summing Up 33. There was no discussion before the summing up about whether specific directions over and above those conventionally given in respect of evidence of fact were necessary in respect of the evidence of reprehensible behaviour. 34. The judge gave the jury summary written directions on the law which he developed in the course of his summing up. When dealing with the respective roles of judge and jury he said “It means that you decide who said what; you decide who did what; you decide who consented to what; you decide who knew what…It means that you decide what was going on here; in specific terms, what went on in this marriage and the sexual relationship between [the appellant and the complainant], in particular during the period February 2010 to December 2014” This was followed by a direction on the burden and standard of proof and the conventional directions about setting aside emotion when considering the evidence. He reminded the jury that they did not need to decide every issue that had arisen in the case. He said, “You must determine those issues which enable you to return verdicts which are true to your oaths or affirmations.” 35. He gave impeccable guidance in respect of the behaviour of complainants in sexual offence cases. 36. He reminded the jury that they were not called on to make a moral judgment on sexual preferences. What was needed was a cool assessment of the evidence and application of the law. 37. He set out clearly and accurately the ingredients of the offence of rape. He identified that the issues were whether the complainant had consented and, if not, whether the appellant reasonably believed that she had. He set out what the prosecution needed to prove in respect of reasonable belief. 38. In the context of a very detailed and helpful direction on reasonable belief the judge told the jury to take into account “all the circumstances of this case…. … that includes but isn’t necessarily limited to, the history of their sexual relations, her illness and its effect on both her and him... There may be other things as well that you want to take into account; and if you do, do. Ultimately you decide whether there was, or may have been, a genuine belief and whether that belief was reasonable.” He said that he would point out the areas of evidence which “illustrate issues which seem to me to be either important or fundamental.” He reminded the jury that it was for them to decide what was important, not him. 39. He reviewed in detail the complainant’s evidence on the allegations of rape which had been given in chief via an edited ABE interview. She said that she had put up with the appellant’s desires because if she hadn’t there would be repercussions – financial or humiliation in front of friends. The cross examination was reviewed in detail. 40. The judge dealt with the dispute about the critical illness pay out and having summarised it he said “there is an issue for you.. That’s an issue that’s not going to decide the case for you, ladies and gentlemen, but it may affect your view of the credibility of one or the other of them, or even both. So, you’ll want to think about this aspect of the case.” 41. The judge reminded the jury that the complainant had said she felt trapped in her marriage, but she had accepted when cross examined that she had asked the appellant to leave several times, and he had done so. She also pointed out that he always came back, until December 2014, after which, despite his wish to return, she refused, and he did not return. 42. The judge dealt in detail with the incident with F. He made it plain that this would not help the jury to decide whether or not the appellant had committed rape. He said that it was a part of the background and that their views of it would help them decide on the relative credibility of the appellant and complainant. 43. The judge also dealt with the evidence of the other witnesses, including of H and the complainant’s sister in respect of recent complaint. We do not need to rehearse this nor the evidence of the appellant which the judge reviewed in detail. We have already referred to the key parts of his evidence. 44. The judge gave both limbs of the good character direction. Discussion 45. It is not disputed that the judge did not follow the approach set out in R v MA. Mr Scott submits that the failure to follow the approach in MA renders the conviction unsafe. Mr Gibbs conceded at the hearing of the appeal that particular directions about the evidence of reprehensible behaviour such as described in MA should have been given but submitted that the absence of the directions does not undermine the safety of the conviction because all the evidence of reprehensible behaviour was before the jury by agreement, it was the appellant’s case that the allegations of reprehensible behaviour were fabricated by the complainant, all the evidence was very robustly tested during a fair trial and was fairly summarised by the judge in summing up. The jury heard all the evidence and were best placed to decide. 46. Mr Scott submits that the directions were necessary not least because the prosecution case relied heavily on the evidence of reprehensible behaviour. He refers to a number of passages in prosecuting counsel’s closing speech. It is sufficient to refer to prosecuting counsel’s description of the appellant: “an egotistical, self-interested and selfish person, and he was cruel; he humiliated [his wife]”. Later in his speech when referring to the appellant’s attitude to money he described it as evidence of his selfishness. Rape being the ultimate act of selfishness, he said, “taking what you want and feeling entitled”. Leaving aside counsel’s forensic flourishes, which were unnecessary, all this came to was prosecuting counsel pointing out that on one view of the evidence the appellant routinely overrode his wife’s wishes. That was the reason he had sought to put it before the jury. Whether they accepted the evidence and considered whether it helped on the issues in the case was a matter for them as the judge made clear. 47. The evidence was before the court by agreement. It is not nor could it be suggested that this was an error of judgment by counsel for the defence. It is plain that both prosecution and defence saw the evidence as all of a piece, as did the judge. They were right to do so. It all went to the issues in the case. 48. That the parties agreed that the evidence should go before the jury does not remove from the judge the responsibility for giving appropriate directions and to sum up the case fairly, but it does not follow that a trial judge must give directions that are unnecessary. The purpose of the directions suggested in MA was to ensure that the jury did not use the particular evidence in an improper way, which would mean either (a) using disputed evidence of reprehensible behaviour without first accepting that evidence, i.e. being sure of it, (b) treating evidence of reprehensible behaviour as supporting a disputed part of the prosecution case it could not reasonably be said to support, or (c) convicting the defendant on a charge the jury were considering wholly or mainly on the basis of the evidence of reprehensible behaviour. 49. In the light of the decision in MA it would have been better had the judge given a short specific direction warning against any improper approach to the evidence of reprehensible behaviour, but we are satisfied that there was no risk of this happening here. The judge’s conventional directions were sufficient, taken together with the general direction as to the evidence to be considered in respect of reasonable belief in consent to which we refer above, and his review of the evidence, to ensure that the jury would not rely against the appellant on reprehensible behaviour that they were not sure about on the evidence, and the evidence in question was all capable, if accepted, of supporting the prosecution case on the only real issues, namely consent and reasonable belief in consent. It was also clear enough, on the judge’s summing up as a whole, that the allegations of reprehensible behaviour outside the incidents of alleged rape themselves were one element only of the prosecution case and not something upon the basis of which, or primarily on the basis of which, it could be proper to convict. 50. The judge’s common sense observations in respect of the ill health pay out and the incident with F were helpful to the defendant. Plainly a decision about either of those issues could not, of itself, help them decide the rape charges and the judge directed them only that it could assist with assessing their respective credibility. In fact, had the jury found that in either case the appellant had done what was alleged against him, they would have been entitled to put that into the balance of evidence supporting the prosecution case that he routinely overrode his wife’s wishes. Its probative value went beyond general credibility. 51. We acknowledge that there are cases where detailed directions are necessary about the use to which particular evidence of reprehensible behaviour may be put. This is not such a case. The evidence was all directed to the main issues in the case. There was no more need to identify each incident of alleged reprehensible behaviour and give a direction about the use to which it could or could not be put than there was, for example, to give such a direction about each individual allegation of rape within count 3. It was not necessary to tell the jury in respect of each allegation “this is not direct proof of rape”. They did not need to be told repeatedly that it went to the issue of consent or reasonable belief in consent. This was clear from the summing up. We are satisfied that there was no risk that the jury might have been unsure of or disbelieved the complainant on the facts of the rape counts and yet convicted because they believed her and other witnesses on the facts of some or all of the reprehensible behaviour. Such an analysis is unreal. Conclusion 52. The issues to be determined were clear. The evidence against the appellant was very strong. It was tested appropriately in the course of an eight day trial in which the appellant gave evidence. The summing up was fair. We are satisfied that the convictions are safe. The appeal is dismissed.

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Neutral Citation Number: [2009] EWCA Crim 2544 No. 2009/05135/A8, 2009/03610/A7 & 2009/04367/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 13 November 2009 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE PENRY-DAVEY and MR JUSTICE HENRIQUES - - - - - - - - - - - - - - - R E G I N A - v - A M JURESS KIKA ABDUL SADDIQUE - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - A P P E A R A N C E S 2009/05135/A8 Mr J Hasslacher appeared on behalf of the Applicant AM Mr P Wright QC and Mr D Penny appeared on behalf of the Crown 2009/03610/A7 Mr J Dein QC and Mr J Nichol appeared on behalf of the Applicant Juress Kika Mr P Wright QC and Mr D Penny appeared on behalf of the Crown 2009/03610/A7 Mr N P Rhodes appeared on behalf of the Applicant Abdul Saddique Mr P Wright QC and Mr D Penny appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T Friday 13 November 2009 THE LORD CHIEF JUSTICE: Introduction 1. There are a number of features common to these applications. Each applicant was convicted of, and sentenced for, murder. In each murder the weapon which inflicted fatal injury to the victim was a knife or knives. Each applicant was duly sentenced to life imprisonment or custody for life. In accordance with statute the sentencing judge assessed the minimum term to be served by the defendant before any question of his possible release could be considered by the Parole Board. Each now seeks to argue that the minimum term in his individual case was excessive. 2. Before addressing any of the individual cases we shall identify some broad considerations. Although the message is not new, it bears repetition. Eighteen months ago in R v Povey [2008] 1 Cr App R(S) 42 in relation to the prevalence of knife crime these observations were made: "3. .... Every weapon carried about the streets, even if concealed from sight, even if not likely to be or intended to be used, and even if not used represents a threat to public safety and public order. That is because even if concealed, even if carried only for bravado, or from some misguided sense that its use in possible self-defence might arise, it takes but a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial, like a look, for the weapon to be produced. Then we have mayhem and offences of the greatest possible seriousness follow, including murder, manslaughter, grievous bodily harm, wounding and assault. .... 4. .... Every knife or weapon carried in the street represents a public danger and therefore in the public interest this crime must be confronted and stopped. .... For the time being, whatever other considerations may arise in the individual case, sentencing courts must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public. ...." 3. The question in these cases is how the application of these principles to cases where the ultimate offence is not the carrying of the offensive weapon, or even wounding, or even grievous bodily harm, should be reflected in the tragic ultimate disaster: murder. 4. Schedule 269(3) , Schedule 269(5)(a) and Schedule 21 to the Criminal Justice Act 2003 provide the structural sentencing framework. What is critical and is sometimes overlooked in argument (though in fairness to counsel who appear before us not today) is that the statutory arrangements do not diminish the principle that the sentence must reflect the seriousness of the crime. Consideration of the seriousness of the crime requires the court to have regard to " general principles " in Schedule 21 . We endeavoured to highlight these considerations in a recent five judge constitution of this court in R v Height and Anderson [2009] 1 Cr App R(S) 656. At page 666 the court made these observations: "28. .... The criteria which purport to identify those cases where the seriousness is 'exceptionally high' or 'particularly high' apply 'normally', but not invariably. They are not exhaustive of the cases which may fall into the 'exceptionally high' or 'particularly high' category, and they do not exclude the possibility that in some cases, probably rare, the seriousness may be such as to justify the 'exceptionally high' or 'particularly high' starting point, even when the express criteria 'normally' required for this purpose are absent. The same may indeed apply in reverse. In the light of and having regard to the relevant criteria, as required by the legislation, the judge must decide whether the seriousness of the crime (and any associated offences) should be treated as exceptionally high or particularly high, or neither. That will provide him with the appropriate starting point. Thereafter the judge must -- and it is a matter of obligation -- identify the starting point he has chosen, his reasons for doing so, and, where appropriate, his reasons for departing from what would otherwise appear to be the normal starting point. 29. We have lost count of the number of times when this court has emphasised that these provisions are not intended to be applied inflexibly. Indeed, in our judgment, an inflexible approach would be inconsistent with the terms of the statutory framework. No scheme or guidance or statutory framework can be fully comprehensive, and any system of purported compartmentalisation or prescription has the potential to produce injustice. Even when the approach to the sentencing decision is laid down in an apparently detailed, and on the face of it, intentionally comprehensive scheme, the sentencing judge must achieve a just result." 5. At the date when the sentences which we are considering today were imposed, Schedule 21 was silent or unspecific about cases of murder resulting from the misuse of a knife or knives. Indeed in Schedule 21 as it now stands the only weapons expressly identified are firearms and explosives. Such cases are normally to be treated as cases of particularly high seriousness. The present applications must be approached on the basis of the starting points as they are, and not as they might become, but in the overall context of our analysis of the true impact of Schedule 21 . It is therefore not unreasonable for it to be suggested that the absence of any specific reference to the use of a knife should mean that the appropriate starting point should not be the same as it would be if the murder had been caused by a firearm or an explosive. 6. The difficulty is with the next stage in the process. Accepting that the starting point will not normally be the same as it would if the murder were inflicted by a gun or explosive, nevertheless the use of a knife and the precise circumstances in which it was used aggravate the seriousness of the individual offence. Paragraph 10, which identifies aggravating features for the purposes of the Schedule is illustrative or inclusive, but not, as has been said before, exhaustive. 7. For the reasons we have given, it is always an aggravating feature of any case involving injury -- and of course death -- that the injury or death has resulted from the use of a knife or any other weapon. In R v Richardson [2006] 1 Cr App R(S) 43 , Latham LJ provided examples of "exceptional cases". None of those apply to the present circumstances. The question for the sentencing judge in the end is not the compartmentalisation of the specific offence within this or that paragraph of the Schedule but the proper judicial assessment of the appropriate sentence to reflect the facts of the individual case and its seriousness and such mitigating features as there may be. Justice simply cannot be done by mechanistic filling in of "tick boxes" or unconsidered assignment of cases into compartments. 8. These three cases involve three individual victims: three young men, all utterly innocent, not seeking trouble, cut down in the street, their lives brought to an untimely end. The result: desolated, devastated parents and families telling this court about the consequences to them through their victim impact statements; grieving and mourning; lamenting that their sons will not become the men they would have been; lamenting, too, the lives that their sons will not enrich. 9. Deaths in circumstances like these outrage and horrify the collective conscience of the community as a whole. We repeat, and until the message is heeded we shall go on repeating: anyone who goes into a public place armed with a knife or any other weapon and uses it to kill or to cause injury, and who is brought to justice, must anticipate condign punishment. R v A M 10. AM is 19 years old. He was just short of his 18th birthday when he committed murder. He had already been in trouble with the police. His convictions include one offence of unlawful possession of a bladed weapon. 11. On 21 August 2009, in the Central Criminal Court, before His Honour Judge Pontius and a jury, he was convicted of murder. He was sentenced to detention during Her Majesty's Pleasure with a specified period of fourteen years. An appropriate order was made under section 240 of the Criminal Justice Act 2003 . He was found not guilty on a second count of robbery. 12. There were two co-accused. KG, born in 1989, was convicted of manslaughter on the count of murder. He was also convicted of robbery on the second count. His sentence was eight years' detention in a young offender institution. AW, also born in 1989, was found not guilty on both counts. 13. At about 5.30pm on 7 October 2007 a 17 year old boy, Rizwan Darbar, the victim of the murder, was sitting on a bench with two of his friends in a park in East London. They were listening to music on a mobile phone. They were not looking for trouble. They were approached by the two co-accused. There was a short conversation. KG snatched the phone. The three youngsters remonstrated with the two co-accused. The deceased asked for the return of the phone. The applicant, who was a friend of his co-accused, approached the scene. He had a knife in his hand. It must have been visible because Gayle said, "Poke him". The applicant stabbed the deceased once in the upper abdomen. A single blow straight into the abdomen punctured the aorta. The deceased collapsed. He was taken to hospital. He subsequently died from that single stab wound which was measured at 1.9cm wide and 14cm deep. 14. In the meantime the applicant and his co-accused ran away from the scene. After the offence the applicant disposed of the knife and of the clothing he was wearing at the time when the fatal injury was inflicted. 15. On his arrest he declined to give any comment or explanation. 16. In his sentencing remarks Judge Pontius identified the problem of knife-carrying in a public place and the courts' responsibility to impose appropriate sentences to deal with "this prevalent behaviour". He was satisfied that it was the co-accused who had encouraged the applicant to use the knife "to ensure that Rizwan Darbar and his two friends did not manage to recover the mobile phone". The judge recognised that the applicant had no offences of significant violence on his record. He had been the victim of a serious knife attack only a year earlier and he "must therefore have been very well aware of the very real risks present when a knife is carried on the streets". There was not the slightest justification for the applicant to carry a knife on this occasion. The judge also accepted that he had not planned to harm anyone before he had joined the group after Gayle had become involved in the robbery, "but the knife had come out in an instant" and he delivered a single blow of "moderate, if not severe, force straight into the victim's abdomen". He recognised that he could not conclude that the intention went beyond that of causing really serious harm. The judge recorded the age of the applicant, the appropriate starting point suggested in Schedule 21 , and accepted that there were no additional aggravating features identified expressly within the statutory Schedule. The judge recognised that the applicant's age had a direct and express effect on the starting point, and that there was an absence of an intent to kill. However, at the same time he had regard to the prevalence of this type of offence and public concern about the proliferation of knives on the streets. Thus he assessed the minimum term at fourteen years. 17. The submission advanced on behalf of the applicant is that the sentence was excessive; that insufficient account was taken of the mitigating features of the case; and that too much regard was paid to the issue of prevalence and public concern. 18. This case proceeded as a trial. The applicant did not have the benefit of a guilty plea. He was not of good character. The effect of his age had already heavily discounted the sentence pursuant to the terms of the Schedule. The judge took account of the fact that intent to kill was not established; but that still left the intent to do really serious bodily harm by the use of a knife to a vulnerable part of the deceased's body. For the reasons we have given the judge was entitled to take account of the fact that this applicant had gone onto the streets armed with a knife and that the death of the deceased was a direct consequence of the fact that he was armed with a knife. 19. As against all those considerations, we can see no ground for concluding that the sentence imposed by the judge was excessive or wrong in principle. Accordingly, this application for leave to appeal against sentence will be refused. Juress Kika 20. The applicant Juress Kika renews his application for leave to appeal against sentence following refusal by the single judge. 21. The applicant is 19 years old. Between September 2005 and July 2008 he made six court appearances for nine offences. Although none was sufficiently serious to attract a custodial sentence, they include an offence of robbery and an offence of affray. 22. On 11 June 2009, following a six week trial in the Central Criminal Court, before the Common Serjeant of London and a jury, the applicant was convicted of murder. On the following day he was sentenced to custody for life with a minimum specified term under the Criminal Justice Act 2003 of 19 years. Allowance was made for the time spent on remand in accordance with statute. 23. There were two co-accused. Both Michael Alleyne and Jade Braithwaite were convicted at the same trial of murder. Both were sentenced to custody for life. Identical minimum terms of 19 years were specified. 24. The deceased was 16 year old Ben Kinsella. He was murdered shortly before 2am on 29 June 2008 in a public street in North London. He was attacked by the three defendants. He was stabbed a total of eleven times. He, too, was a wholly innocent victim. He offered not a shred of provocation. He did not say or do anything which could be misinterpreted as provocation. All he wanted to do -- and he tried to do -- was to get away from trouble, but he was cut down before he could reach safety. 25. The early problem involved Braithwaite and Braithwaite's perception of some insult or humiliation which arose after a confrontation between two groups of young men. Braithwaite was in one; the victim was in another, younger group. During the course of the confrontation Braithwaite was seen to gesture towards the waistband of his trousers, indicating that he had a knife. He was heard to threaten to use it. A fight broke out. During the fight one of Braithwaite's friends was struck and Braithwaite was once again heard to threaten to use a knife. At this stage Braithwaite and his gang ran away. 26. Feeling humiliated and seeking revenge, Braithwaite contacted the appellant and Alleyne. They were not reluctant to come forward to assist him. The three men made their way back to the area, out for revenge, enthusiastic to join in Braithwaite's fight. They followed the group, which included Ben Kinsella, as it made its way out of the area. A witness heard a remark that someone was going to be "shanked". Frightened, the group of young men started to run away. Ben Kinsella was at the back of the group. He became isolated. He crossed the road, but he was followed. He was hunted down. He was knocked to the ground between two parked vehicles, set upon and stabbed eleven times. One stab wound went into his heart. Another penetrated the chest cavity causing the collapse of his lungs. The stab wound to the heart was so ferocious that one of his ribs was split. He was left to die. The three assailants, intent on making their escape, made off without a moment's thought for him. 27. The appellant and Alleyne went to Alleyne's home address. There they disposed of some of their bloodstained clothing. Later they went to the home address of a cousin of Alleyne and they confessed that they had stabbed Ben Kinsella. They were arrested from that address while trying to escape. Braithwaite surrendered when he heard that his brother had been arrested. 28. On 2 July 2008 the three defendants were taken to the magistrates' court sitting at Highbury. On their way back to the various police stations where they were detained in custody their conversations were recorded. Those conversations were illuminating. They discussed the speed with which the killing had been carried out, what the available evidence might be, the possibility of CCTV footage present in the area, the possibility of a "snitching" (a witness coming forward), and what had happened to the knives. Overall there could be no doubt from their conversations that they were involved in this murder. 29. The Common Serjeant took the view that this was a case of men armed with deadly weapons which they had had no hesitation in using and using repeatedly. He took was satisfied that there was a joint intention to kill and that the operation which culminated in the death of Ben Kinsella was a joint enterprise in every sense. It was "an arrogant and unfeeling attack on someone who had done nothing and was unconnected with anything that had gone on before". He addressed each defendant individually. He noted the applicant's age and previous court appearances. He reflected on some of the information given to him about some of the difficulties the applicant had had with his upbringing. However, he said that the crime was aggravated by the fact that the group had assembled together and had attacked "an obviously younger, smaller and lone victim". He considered the starting point laid down in the Schedule and concluded that that did not provide a sufficient punitive element to reflect some of the serious features of this case. 30. It is submitted on behalf of the applicant that the single judge's decision was wrong and that leave should now be given to the applicant to appeal against this sentence on the basis that it was excessive. 31. We have considered that careful submission by Mr Dein QC. However, in our judgment there is no true mitigation. There was no guilty plea, no remorse, and no insight into the devastation that had been caused. That applies to all three of the applicants. It is true that this applicant was young. That is sometimes described as mitigation and it is always a feature to be taken into account by the sentencing judge. The judge noted that the applicant was just 18 years old at the time of the killing, that he had had a difficult upbringing, and that there was an absence of appropriate parental guidance. That is all correct, but this applicant knew exactly what he was doing. They all did. They assembled together as a gang armed with deadly weapons. There was no need for extensive planning. They had arrived to look for a fight and to assist Braithwaite's revenge. They were all equally involved. They all intended to kill the young victim. They had hunted him down and mercilessly done him to death to revenge an insignificant slight for which he bore no responsibility whatsoever. 32. We have considered the sentence imposed on this applicant, but in our judgment the single judge summed up the situation accurately when he observed: "It is not .... seriously arguable that in the exercise of his statutory discretion the learned judge gave undue weight to aggravating factors and insufficient weight to such mitigating factors as are identifiable, principally age." We agree with those observations. The Common Serjeant dealt with the three defendants on the same basis. That may have been of advantage to Braithwaite, but this applicant cannot mine any advantage to himself from it. In our judgment the sentence in this case cannot remotely be described as excessive. Accordingly, this application for leave to appeal against sentence will be refused. R v Abdul Saddique 33. The third case to which we turn is an application for leave to appeal against sentence which has been referred to the full court by the Registrar. 34. Abdul Saddique is aged 25. He has nine previous convictions for twelve offences, which include a very serious offence of causing grievous bodily harm with intent for which he was sentenced to four-and-a-half years' detention. He was on licence from that sentence when he committed the offences to which we must now come. 35. On 13 July 2009, on the first day of his trial at the Central Criminal Court, a count of wounding with intent was added to the indictment which charged murder. The applicant pleaded guilty to murder and to wounding with intent. On 30 July 2009 he was sentenced by His Honour Judge Clifton for the offence of murder to life imprisonment with a specified minimum period of 21 years, and for the offence of wounding with intent to do grievous bodily harm a concurrent sentence of eight years' imprisonment was imposed. Appropriate credit was given for time spent in custody on remand. 36. There were two co-accused. Kalam Kazi, who was 24 years of age, was convicted of manslaughter and was sentenced to ten years' imprisonment. Appropriate credit was given for time spent on remand. A second co-accused was acquitted of both murder and wounding with intent. 37. On 8 November 2008, at about 2.30am, the applicant and Kazi were in the town centre in Ilford. They had spent the evening separately but met after telephone and text communication between them. It is clear from an examination of that material that the applicant was looking for a fight and he wanted others to join him. 38. At about the same time the two victims, Nabeer Bakurully and Mohammed Hader, were also present in the town centre. There was a confrontation between the applicant and Hader. The applicant stabbed him with a kitchen knife. In the meantime Bakurully was confronted by the other two men, one of whom was Kazi. Having wounded Hader, the applicant turned his attention to Bakurully. He stabbed him with two thrusts of the knife, penetrating the young man's heart. He died in the street in Ilford while paramedics who had arrived at the scene did their best to save him. 39. When he was interviewed the applicant declined to comment. His defence case statement asserted self-defence. That was an absurdity. After the defence statement was prepared, at about the time the trial was to be listed and now with the benefit of advice from counsel, he decided to plead guilty to murder and to wounding with intent as an alternative to the charge of attempted murder. That plea was accepted by the prosecution. A basis of plea was prepared. It was not acceptable to the Crown. Attention was drawn to paragraph 4 which "might have been of particular concern to the court". Paragraph 4 asserted: "Once at home [the applicant] decided to go out again to purchase some food from a kebab shop in the High Street. Fearing a further confrontation with the group of youths who had assaulted him earlier, he armed himself with a kitchen knife and contacted his co-defendants to support him." Of that assertion the Crown said: "Those assertions fly in the face of all the evidence, including the terms of the text messages. The Crown have made it clear throughout that it would seek a Newton hearing where the defendant could be called to give evidence were he to maintain that stance. We say this was a mission of revenge and may well have been a wrong identification that led to the death." Faced with that, the applicant had to decide whether to request a Newton hearing and to support the basis of plea in order to meet the Crown's clear, unequivocal position that this was a "mission of revenge". The opportunity was declined. 40. In passing sentence the judge identified all the essential features of the case. They bear repetition: a fatal stabbing of one man with a large, dangerous kitchen knife deliberately taken onto the street; the victims unarmed, showing no aggression. The judge noted that the Crown accepted that the applicant did not intend to kill the deceased but his view was "bearing in mind the persistent savagery of your attack on him this is one of those cases where the distinction between an intent to kill and an intent to do really serious harm both resulting in death is marginal". The judge set out the considerations which he believed aggravated the seriousness of this case. They are self-evident: the knife, the several stabbings, two victims, the aims of the stab wounds at vulnerable parts of the body, the deliberate infliction of the wounds, the recruitment of another man, and the previous conviction for wounding with intent which involved kicking a man's head when he was down. The sentence had to reflect that the violence embraced not one but two victims, the second suffering very serious injuries indeed from which, fortunately, he had recovered. 41. The mitigation pointed to on the applicant's behalf was the guilty plea. It was a very late plea following the absurdity of an assertion of self-defence in the defence case statement. In our view the judge sufficiently reflected such credit as was due for that late guilty plea. 42. The applicant was on licence from a prison sentence for a very serious offence of violence. He went out into the streets at night, having deliberately armed himself with a dangerous and lethal weapon, looking for a fight. There was no fight. Two peaceful men were attacked by at least two (the third stood by). The result was two victims, both innocent young men, savagely attacked. 43. The Crown was prepared to accept, as the judge recorded, that the applicant did not intend death. We pause to wonder whether that was not over-generous in the circumstances. The applicant intended grievous bodily harm. He was reckless whether death would be caused. The violence that he used was deliberate. 44. We can discern no double counting in this sentence. It was a case of double offences of violence. In these circumstances this application for leave to appeal against sentence must be refused.

```yaml citation: '[2009] EWCA Crim 2544' date: '2009-11-13' judges: - MR JUSTICE PENRY - MR JUSTICE HENRIQUES ```

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: 200405210/A9 Neutral Citation Number: [2004] EWCA Crim 3047 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 11th November 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MRS JUSTICE HALLETT DBE MRS JUSTICE DOBBS - - - - - - - R E G I N A -v- DAVID OLADOTUN KOLAWOLE - - - - - - - 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 P JONES appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 5th July 2004 at Tower Bridge Magistrates' Court, this appellant pleaded guilty to a number of offences and was committed to the Crown Court, under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 , in relation to two offences of possessing a false instrument with intent and, under section 6 of the same Act, in relation to offences of driving without a licence and without insurance. On 27th August, at Inner London Crown Court, he was sentenced by His Honour Judge Prendergast, in relation to the offences of possessing a false instrument with intent, to 8 months' imprisonment on each offence consecutively. Those offences being laid as being contrary to section 5(1) of the Forgery and Counterfeiting Act 1981 and each relating to a false passport. It is to that aspect of the sentencing producing, a total sentence of 16 months' imprisonment, that this appeal, by leave of the Single Judge, is directed. 2. The facts were that at 8 o'clock on the morning of 3rd July 2004 the appellant was seen in the Old Kent Road driving a motorcar erratically. Police officers stopped the car to speak to the driver. He was asked to produce identification. He produced a provisional driving licence in the name of 'Johnson' and, when asked where he lived, he said the Old Kent Road. The officers noticed that the address on the licence was an address in Bolton and there were other matters which gave rise to informed curiosity on their part as to the accuracy or otherwise of the information provided by the appellant. At the police station to which the appellant, having been arrested, was taken, he was searched. He was found to have in his possession one forged Nigerian passport and one stolen British passport in the name of Johnson. The appellant's photograph had been inserted into the forged Nigerian passport. The British passport, in the name of Johnson, contained the appellant's photograph. He said in interview that he had paid someone £100 in Nigeria to forge the Nigerian passport because he needed some photographic identification. The British passport, he said, belonged to his deceased elder brother in Nigeria. But he was not able to provide any proof that such a brother existed. 3. The learned judge, in passing sentence, paid due regard to the early guilty pleas and stressed that passport offences were serious and on the increase. Custodial sentences were appropriate and, indeed, consecutive custodial sentences were appropriate. 4. The appellant was born in September 1975 and has no known previous convictions. There was a pre-sentence report before the learned judge, which recognised the likelihood of a custodial sentence, but assessed the risk of the appellant re-offending as being low. 5. On behalf of the appellant, Mr Jones referred to a number of authorities and advanced the general proposition that, in this case, it was bad sentencing practice to impose consecutive sentences in relation to the two different passports. The Court has considered a number of authorities: R v Dhajit Singh [1999] 1 Cr App R(S) 49O; R v Siliavski [2000] 1 Cr App R(S) 23; R v Cheema [2002] 2 Cr App R(S) 356; R v Balasubramaniam [2002] 2 Cr App R(S) 57 and R v Stanca [2004] 1 Cr App R(S) 265. On those authorities three comments are appropriate: (1) It is apparent that they have not always distinguished as clearly as perhaps they should between the three different offences commonly charged in relation to false passports under the Forgery and Counterfeiting Act 1981 , the maximum sentences for which are not all the same. By virtue of section 6 of the Act, the maximum for using a false instrument, contrary to section 3 , (of which Singh and Balasubramaniam provide examples), and for having a false instrument with intention it shall be used, contrary to section 5 (1, (of which Siliavski , Cheema and the present case provide examples), is 10 years' imprisonment. The maximum for having a false instrument, contrary to section 5 (2, (of which Stanca provides an example) is 2 years' imprisonment. (2) There is a passage towards the end of the judgment in Daljit Singh , at page 493, which is not as precisely expressed as it might have been, and this may have led to some misapprehension, particularly by the Court in Siliavski . The passage reads: "Cases involving the use of false passports will almost always merit a significant period in custody... usually within the range of 6 to 9 months even on a guilty plea by a person of good character." It is apparent from the facts of Daljit Singh , from the facts of the other authorities there cited and from other passages earlier in the judgment, that the issue being addressed in Daljit Singh was the use of a passport. It was for such conduct that the level of sentence identified was suggested. The Court in Siliavski may have been misled by the passage in Daljit Singh which we have cited. In consequence, the level of sentence indicated in Siliavski , namely 6 months is, in our view, an inadequate reflection of the culpability of that appellant, who, on arrival at Heathrow, was carrying no less than four false passports, hidden in his trousers. (3) We agree with the further criticism of Siliavski made in paragraphs 11 and 12 of the Court's judgment in Cheema and with the comments on Siliavski in paragraphs 6 to 8 of the judgment in Stanca . Siliavski should not be recorded as authoritative as to the level of sentence appropriate for couriers of false passports. Cheema is the more appropriate guide, subject to the comment which we are about to make in relation to increasing public concern. 6. In the present case the appellant was in possession of not just one but two false passports with intent, contrary to section 5(1) . The sentence on him had to reflect this. Furthermore, international events in recent years and the increase in public concern which they have generated, justify deterrent sentences at a higher level than was appropriate 6 years ago, when Daljit Singh was decided. For this reason Balasubramaniam , in which the Court loyally followed Daljit Singh , should no longer be regarded as authoritative. For the Daljit Singh type of case, that is where one false passport is being used, contrary to section 3 , or is held with the intention of use, contrary to section 5(1) , the appropriate sentence, even on a guilty plea, by a person of good character, should now usually be within the range of 12 to 18 months. In the course of his submissions to this Court Mr Jones accepted that the level of sentence indicated in Daljit Singh might now appropriately be raised. 7. It follows from what we have said that it cannot be said that 16 months for this appellant, in relation to two passports, was manifestly excessive. This appeal is dismissed.

```yaml citation: '[2004] EWCA Crim 3047' date: '2004-11-11' judges: - (LORD JUSTICE ROSE) - MRS JUSTICE HALLETT DBE - MRS JUSTICE DOBBS ```

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

Neutral Citation Number: [2009] EWCA Crim 2285 No: 200904471 D5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 21 October 2009 B e f o r e : LORD JUSTICE STANLEY BURNTON MR JUSTICE PENRY DAVEY MRS JUSTICE SHARP DBE R E G I N A v HABIB GHULAM Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2AY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Mr C Smith appeared on behalf of the Appellant Miss Mealing-McLeod appeared on behalf of the Crown J U D G M E N T (As approved) Crown copyright© 1. LORD JUSTICE STANLEY BURNTON: This is an appeal by Habib Ghulam, with leave of the Single Judge against his conviction of one count of burglary at the Crown Court at St Albans before HHJ Baker QC and a jury on 7 April 2009. He was subsequently sentenced to two years' imprisonment. 2. The sole ground of appeal relates to an issue raised at the beginning, and again almost at the end, of the trial, as to the fitness to plead of the appellant, and involves an examination of- section 4 of the Criminal Procedure (Insanity) Act 1964 (as amended). For present purposes the facts of the incident that gave rise to the trial are largely relevant. The burglary took place at the home of a lady, Sylvia van Tellegen, who had had a relationship with the appellant. It took place during her absence and there was evidence, including DNA evidence, linking the appellant to the offence by the appellant. He was arrested. 3. In interview he denied the offence of burglary and said that he had stayed at the house, which had been the subject of the burglary, on a number of occasions, but otherwise made no comment to the questions put to him. The prosecution case simply was that he was responsible for the burglary, and the defence case at trial was that he had had nothing to do with it. 4. There was a relatively long history of proceedings before the trial. On the first day of the trial, presumably before it began, an application was made by counsel on behalf of Mr Ghulam, who was not counsel who has represented him today, for the adjournment of the trial. It was based on a letter from Dr B Azam, a Core Trainee Level 1 in Psychiatry to a Consultant Psychiatrist, namely Dr A Sarkhel, who was a member of the Loughton Community Health Team. The letter addressed to Mr Ghulam's solicitors and dated 3 April 2009 stated: "I am Dr Bushra Azam a Core Trainee Level 1 to Dr A Sarkhel, Consultant Psychiatrist, and I have been asked to write a summary of my assessment today on Mr Habib Ghulam dob 29.7.67 with regard to his offence of Burglary... As you know Mr Ghulam suffers from an anxiety and depressive disorder which is complicated by the high misuse of alcohol. I have assessed him today on the 3rd April 2009 and on the basis of my assessment today and his past psychiatric notes, in my professional opinion Mr Ghulam is not able to stand trial at present as it will deteriorate his mental as well as physical health further. My detailed report of today's assessment will follow in the next three to four days." 5. The judge refused to accede to the application for the case to be taken out of the list, that is to say effectively for the trial to be postponed, on the basis of that letter. Although it referred to Mr Ghulam being unable to stand trial, the reason given was not that he was unfit to plead, that is to say could not understand the proceedings, give sensible instructions and present a sensible defence, but that presumably the stress of the trial would cause his mental as well as his physical health to deteriorate further. 6. The judge weighed up that opinion and the consequences, or possible consequences for Mr Ghulam, as against the delay there had already been in the proceedings and the consequences of a further adjournment to the complainant, and decided to proceed with the trial. That was a matter entirely within his discretion and his exercise of his discretion has not been criticised. 7. The trial proceeded. During the course of the trial a question arose as to whether there should be objection taken to a juror. Instructions were taken by counsel representing Mr Ghulam as to whether or not there should be a challenge to that juror. In the event no challenge was proceeded with. 8. At the end of the prosecution case the defence case was presented and Mr Ghulam gave evidence. The judge of course was able to see all that. The judge began his summing-up and had almost completed it when counsel for the appellant made a further application, this time for the jury to be discharged. At that stage the summing-up to the jury was virtually complete. It only remained for them to return after the luncheon adjournment, for the judge to make his closing remarks and for the jury to be sent out. 9. The judge heard the application and refused to discharge the jury. The basis of the application was a letter, dated 6 April 2009, from the same doctor as had been the author of the original letter. This time the letter gave a detailed history of Mr Ghulam's condition and then addressed the Pritchard criteria, as they are generally known, as to fitness to stand trial. Under the heading "Fitness to plead" the letter said: "1.At present Mr Ghulam understands the charges of burglary. 2. He is also able to decide whether to plead guilty or not. 3. He is unable to exercise his right to challenge jurors because of his poor concentration and his inability to think appropriately at present. 4. He has limited capability at the moment because of depression and alcohol misuse and also due to his illness. In my opinion he would not be able to instruct his solicitor to (sic) counsel. 5. Currently the patient has very low concentration, attention and motivation levels. He is also having a lot of negative thoughts ie, thoughts of ending up his life, and in my professional view, he would not be able to follow the course of proceedings. 6. He would also be unable to give evidence in his own defence as his capability to defend himself is currently very limited because of his low mood, decreased attention and repeated negative thoughts of ending up his life. In summary, Mr Ghulam at the time of my assessment was not fit to plead as he does not fulfil the criteria for fitness to plead (Pritchard's criteria)." 10. Regrettably that was the only medical evidence before the judge and regrettably it was produced at effectively the eleventh hour. If there was going to be a question of unfitness to plead, given that there had been a history of mental illness on the part of Mr Ghulam, that evidence should have been obtained at a much earlier stage. Moreover, as we shall mention in a moment, the statute requires medical evidence of two doctors. There later came into existence a letter, dated 23 April 2009, from Dr Sarkhel, the Consultant Psychiatrist who was supervising Dr Azam, which confirmed that he had read the report prepared by her dated 6 April 2009 on the appellant and agreed with its contents. That letter was not, and could not have been, before the judge. 11. It is submitted on behalf of Mr Ghulam that the medical evidence when the second application was made indicated that a Mr Ghulam was unfit to plead and had been unfit to plead during the trial. The judge should have discharged the jury and then given directions for the question of fitness to be tried by him or by some other judge, it not having been tried on the basis of that medical evidence: he was unfit to plead and had not received a fair trial, or was not in a position fairly to defend himself. As the recital at the beginning of our judgment indicates, in due course the jury did indeed convict him. 12. The course which the judge was required to follow was prescribed by- section 4 of the Criminal Procedure (Insanity) Act 1964 (as amended). Regrettably the judge was not taken to the provisions of the statute by either counsel at trial, and therefore did not receive the assistance to which he was entitled. Section 4 is as follows: “(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried. (2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence. (3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined. (4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises. (5) The question of fitness to be tried shall be determined by the court without a jury. (6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved." We shall return to the requirements of the Act shortly, but for the moment it is sufficient to summarise the judge's reasons for refusing to discharge the jury. He said that he had been able to observe the conduct and fitness to be tried of the appellant during the course of the trial. The appellant had been able to give evidence. There had been no indication of any inability to deal with the questions when he gave evidence. He had been able to give instructions as to whether or not there should be a challenge to a juror. His conduct during the trial was inconsistent with the opinion of Dr Azam, and relying on his own observation of the appellant he was unable to accept that the appellant was, or had been, unfit to plead. 13. It is apparent that section 4 envisages that in the normal course the issue of unfitness to plead will be raised before or at the very beginning of the trial. However, this did not happen in the present case, save to the extent of the production of the short letter to which we referred at the beginning of the trial, which, it is conceded on behalf of the appellant, did not sensibly raise the issue of unfitness to plead, but rather contained a contention that his mental state would be affected if the trial were to continue. 14. The issue of unfitness to plead was not effectively raised until shortly before the jury were sent out. Subsection (4) requires the question of fitness to be tried as soon as it arises subject to subsections (2) and (3). It required, therefore, the judge so far as was practicable, to determine the question of fitness to plead when the issue was raised at the end of the trial. 15. Subsection (5) authorises the judge to determine the issue without a jury. Subsection (6) is important because it precludes a determination under subsection (5), except on the written or oral evidence of two or more medical registered practitioners, at least one of whom is duly approved. The question then arises whether the determination referred to in subsection (6) is a determination whether or not a person is fit to be tried, or is only a determination that a person is unfit to be tried. If there is no evidence satisfying the requirements of subsection (6) a judge is entitled to find that a person is fit to be tried, notwithstanding that the issue has been raised at some stage during the course of the trial. 16. In our judgment, notwithstanding the unqualified wording of subsection (6), it does indeed refer to a determination that a person is unfit to plead. It does not preclude a determination that a person is fit to plead in circumstances where there is not the evidence of two or more registered medical practitioners, at least one of whom is duly approved. Indeed, in our judgment the statute envisages that the written oral evidence of the two or more registered medical practitioners would both be to the effect that the defendant is unfit to plead. It is difficult to believe, for example, that the statute would permit a defendant to be found unfit to plead in circumstances where there was a consultant psychiatrist duly approved who was of the opinion that he was fit to plead, and a general practitioner who was of the opinion he was unfit to plead. 17. There are two good reasons why subsection (6) should be construed as confined to determinations that the defendant is unfit to plead. The first is that the contrary construction leads to unreasonable, if not absurd, consequences. It would mean that whenever it is asserted, albeit on inadequate evidence, as occurred in the present case at the beginning of the trial, that the defendant is unfit to plead, the court could not proceed with the trial until the requisite medical evidence had been obtained. This may mean asking one or more psychiatrists to confirm that the defendant is fit to plead in circumstances where there is no substantial evidence that he is unfit to plead. 18. On the other hand it is perfectly understandable that Parliament should have required that a finding that a defendant is indeed unfit to plead should not be made except on substantial medical evidence, given the potential consequences for the defendant. By section 5 if it is found that the defendant did the act, or made the omission, charged against him, but is unfit to plead, the court has power to make a hospital order. A hospital order has the meaning given in section 37 of the Mental Health Act 1964, that is to say it is an order for the admission of an offender to a hospital in which he will be compulsorily detained. Section 37(2) precludes the making of a hospital order unless “the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering” from a mental disorder of a specified nature and degree. The 1964 Act imposes requirements on the medical evidence required in such cases and other cases (such as the making of an interim hospital order under section 38 and the making of a transfer direction under section 51) in which there may be compulsory detention of a person in hospital. Section 54(1) provides: "The registered medical practitioner whose evidence is taken into account under section 35(3)(a) above and at least one of the registered medical practitioners whose evidence is taken into account under sections 36(1), 37(2)(a), 38(1) and 51(6)(a) above and whose reports are taken into account under sections 47(1) and 48(1) above shall be a practitioner approved for the purposes of section 12 above by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder." 19. A doctor who has been so approved by the Secretary of State is approved for the purposes not only of the Mental Health Act, but also for the purposes of section 4 of the 1964 Act . None of the provisions of the Mental Health Act require the evidence of two medical practitioners, of whom one is approved, for the court to be called upon to consider making a hospital order or an interim hospital order to refuse to make such an order. All those provisions envisaged that there will be two doctors, one of whom is approved, who are of the opinion that a person is mentally ill and should be compulsorily admitted to a hospital. 20. In our judgment section 4 of the 1964 Act should be read together with, and in the context of, those provisions of the Mental Health Act. That leads to the conclusion that the evidence of two medical practitioners, one of whom is approved, is required under the 1964 Act (as amended) if a finding is to be made that a person is unfit to plead, but not otherwise. 21. Applying those conclusions to the situation which the judge found himself, in our judgment the judge was, in the exercise of his discretion based on the evidence before him, entitled to consider whether or not the appellant was unfit to plead. He could not have made a determination that the appellant was indeed unfit to plead without the medical evidence of another doctor, and that doctor would have had to be an approved psychiatrist, as required by the Act. However, he was entitled to consider what he had observed as to the conduct of the appellant and his ability to defend himself at the trial. He was, in our judgment, entitled on that basis to consider whether or not he could accept the evidence put before him at the late stage of a single doctor. 22. Having found that his observations were inconsistent with those of the doctor, he was entitled, in those circumstances, implicitly to make a determination that the defendant was fit, and had been fit, to plead, and therefore to refuse to discharge the jury and to allow the trial to be completed. The matter was entirely for him in his discretion. Given the circumstances in which the application was made and the very strong evidence that he had seen that the appellant was indeed fit to plead, in our judgment he was entitled to decide as he did. It follows that the appeal is dismissed. 23.

```yaml citation: '[2009] EWCA Crim 2285' date: '2009-10-21' judges: - LORD JUSTICE STANLEY BURNTON - MR JUSTICE PENRY DAVEY - MRS JUSTICE SHARP DBE ```

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

No: 03/3241/A2 Neutral Citation Number: [2003] EWCA Crim 3073 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 3 October 2003 B E F O R E: LORD JUSTICE KAY MR JUSTICE POOLE MR JUSTICE TREACY - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 34 OF 2003 ( DEAN POYNER ) Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) MR T ADEBAYO appeared on behalf of the ATTORNEY GENERAL MR R PAKROOH appeared on behalf of the OFFENDER J U D G M E N T 1. LORD JUSTICE KAY: Her Majesty's Attorney General applies for leave to refer to the court a sentence which he regards as lenient pursuant to section 36 of the Criminal Justice Act 1986. We grant leave. 2. The offender is 34 years old. On 11th April 2003 he pleaded guilty at the Bristol Crown Court to an offence of aggravated burglary. Sentence was adjourned and on 9th May he was sentenced by His Honour Judge Foley to three years' imprisonment. 3. The victim of the offence, David Small, lives in a two bedroomed detached bungalow in Locking, Weston Super-Mare. At about 6.30 pm on Saturday 25th January 2003 he was alone in his lounge watching television when his doorbell rang. He opened the door and saw a white male who turned out to be the offender smiling at him and a black male standing behind him. The black male squirted liquid into his face. Fortunately this had no lasting effect on him. The offender then barged the victim backwards and punched him several times to the face. He pointed a pistol-type gun at him. The gun had a 6 to 7 inch long barrel. The victim however appreciated that it was not a real gun. It was in fact a gun capable of discharging pellets if it was in working order, but it was not even in working order. 4. Having entered the flat the offender demanded that the victim should tell them where the safe was and that way he would avoid getting hurt. The victim responded that he had no safe. That response was indeed true because in May 2002 he had been the victim of another burglary in which his safe, containing a substantial amount of money, had been stolen and he had never replaced it. 5. The two men then pushed the victim into his kitchen and tied his arms up with zip ties. The accomplice switched off the victim's mobile telephone and put it in his pocket. They repeatedly asked where the safe and money were. He was dragged to the hallway and then into his bedroom and forced face down on the bed. The two men continued to repeat their demand that he should reveal where the safe was. Eventually the victim told them that there was some money in the chest of drawers by the bed. The accomplice emptied the drawer and took some £2,000 from it and also loose change from some jars. 6. The offender then tied up the victim's knees and feet using his own belt and ties which he took from the wardrobe. They stole his camcorder and then put his vest over his face. The victim heard the offender say, "Go and get a knife, we'll have to cut him". The victim could then hear his house being ransacked and eventually heard them say that there was no safe. Then the offender went back to check the victim and noticed that some of the ties had come off. His response was to punch him again several times to the head. He told the victim that he should not leave until an hour after they had left. He threatened to harm his son if they did not do as they said. The offender then took the victim's wallet from his back pocket, which contained cash, his driving licence and bank cards, and they then left the premises. 7. Once they had gone Mr Small looked round his house and saw that both his and his son's bedroom had been ransacked and were a mess. He telephoned the police. When the police arrived they found inside the front door of the porch entrance the remains of the firearm (the one not in working order) that had been carried. They also noticed that Mr Small's face was bleeding and swollen. 8. Three days later on the afternoon of 28th January officers from the West Midlands force in Birmingham stopped a car which contained the offender and a woman as passengers. When officers searched the car they found the victim's driving licence and bank card in the back seats. Both the offender and the woman were arrested. In due course the woman gave a statement to the police in which she said that when they were stopped by the police the offender had told her that he had some cards from an aggravated burglary and he wanted her to keep them, so she had hidden them in the rear of the car. 9. On 29th January the offender was placed on an identification parade and was picked out by the victim as being one of his attackers. Footprints taken from Mr Small's kitchen matched the offender's footprints. 10. The firearm parts recovered from the house were examined. The expert was able to reassemble them and we have already indicated the result of his work on the handgun. 11. The offender was interviewed, but he elected to make no comment to the questions he was asked. The victim expressed the view that the offender assumed the lead role in the attack. He described how as a result of the attack he was left with a graze to his chin, reddened cheeks, red welts round his wrist and a sore left thumb. Not surprisingly he has since indicated that he is now very nervous when he hears his doorbell ring. 12. On behalf of the Attorney General it is submitted that there were a number of aggravating features to this case. The first is that the attack was clearly planned. The second is that the offence involved two individuals attacking a single victim. The third is that the attack took place in the evening. The fourth is that actual violence was used involving the victim being tied up, his face covered and his being punched on more than one occasion. The fifth is that the offender was carrying an imitation firearm. The sixth is that a significant amount of property was stolen. A further aggravating feature was present, in that the offence had been committed fifteen days after the offender had been made the subject of a community rehabilitation order. That list of aggravating features identified by the Attorney General omits the factor that we view as being very serious that this attack took place in the victim's own home, a place where above all others he ought to be entitled to feel safe. 13. It is recognised on behalf of the Attorney General that there are mitigating features in the case. The first is that the offender pleaded guilty, although it has to be recognised that the evidence against him was overwhelming. The next is one to which the sentencing judge attached importance, and that was that the victim appreciated that he was not being confronted with a real firearm. In all the circumstances, it is submitted that the sentence of three years' imprisonment did not adequately reflect the gravity of the offence. 14. Mr Adebayo on behalf of the Attorney General has drawn our attention to three authorities. The first is the case of Funnell and others (1986) 8 Cr App R (S) 143 . That is a case in which two of the appellants had sentences of nine years' imprisonment reduced to six years' imprisonment. They had burgled the home of a man of 84, armed with an imitation firearm, and tied up the victim. There were a number of distinctions between that case and this. The first is that the appellants in that case had effectively no previous convictions while the offender in this case has a bad criminal record. He has made 21 previous appearances before the court for 74 offences. His offences include assault occasioning actual bodily harm on more than one occasion, affray on more than one occasion, carrying an offensive weapon on more than one occasion, possessing a noxious liquid gas, which has of course significance in the light of the way this incident started, and other offences as well. The most serious offence of all that he has previously been convicted of was an offence of causing grievous bodily harm with intent, which was coupled with an assault occasioning actual bodily harm for which he was sentenced to a term of five years' imprisonment. That sentence was passed in 1996. He was, as we have already indicated, the subject of an order made by the courts just fifteen days before in respect of offences of dishonesty. The other distinguishing feature between the case of Funnell and others and this case is that in the case of Funnell and others there had been relatively minor violence used against the victim. He had been tied to a chair with a rope but it was accepted that he had been tied quite loosely and there was no element of his being punched gratuitously, as happened in this case on more than one occasion. The sentence, as we have indicated, in that case originally as passed was one of nine years' imprisonment. It was reduced to six years' imprisonment. The other factor that has to be observed as a distinction between the two cases is the age of the victim in the case of Funnell and others - he was a man of 84. The victim in this case was a man in his 40s. The courts rightly attach even greater significance to offences committed against the elderly in their own homes than those against younger people having regard to the particular vulnerability of such persons. 15. The second case to which we have been referred is the case of Stewart [1996] 2 Cr App R (S) 302 . In that case a sentence of seven years' imprisonment was upheld in respect of an offence of burglary following a conviction before a jury. The burglary was the burglary of a man of 77 in poor health in his own home, he having been dragged back into his home and attacked by the appellant. There was a suggestion that he had a knife, but the jury rejected an allegation of aggravated burglary, meaning that they were not satisfied that he was in fact in any way armed with a weapon. 16. The third case to which our attention has been drawn is Attorney-General's Reference No 35 of 2001 (Stuart Barry Girt) [2002] 1 Cr App R (S) 44 , reported on page 187. That was a case in which the court increased a sentence of three-and-a-half years' imprisonment for a burglary at the home of a man aged 72 by a man armed with a knife to four-and-a-half years' imprisonment. The court made clear in the course of giving judgment that, but for the element of double jeopardy, it would have viewed the proper sentence as being one of six years' imprisonment. The submission made on behalf of the Attorney General is that the facts of that case were not as serious as the facts of this case and that, it is suggested, lends support to the suggestion that this sentence was unduly lenient. 17. On behalf of the offender Mr Pakrooh submits that whilst this sentence can properly be characterised as being a lenient sentence, it is not one that ought to be said to be an unduly lenient sentence. He submits that there were circumstances in relation to this matter that meant that it did not reach a level where a judge could not conclude that, having regard to mitigation that was advanced, a sentence of three years' imprisonment was appropriate. In the alternative he submits that if the court does conclude that the sentence was unduly lenient any interference with the sentence ought to be minimal. He submits that having regard to the authorities this was nothing like as serious a case as Stewart . He points to the fact that in both Stewart and Funnell and others the victim was an elderly person and underlines the factor to which we have already referred that the courts afford even greater protection where the victim is a person who has been or may have been targeted because of their particular vulnerability. He submits that in the circumstances of this case the fact that the victim knew that he was not being confronted with a real gun greatly diminished any fear that he was likely to feel from that weapon being produced. He submits in those circumstances that the court ought to conclude that three years, lenient though it may have been, was a proper sentence. 18. We simply cannot accept those submissions. This was on any view a very serious offence of its kind. It involved the deliberate plan to go to this person's house. It seems likely that there was some knowledge that at some stage he had had a safe because of the demand to know where the safe was located. The offence involved two men attacking a single victim in his own home. They went armed with a weapon. The weapon was in fact a firearm. It no doubt was carried because they believed that the victim would think that it was a real gun, otherwise there would be no point in carrying it. Once they got there there was the serious feature of squirting something in his face - again inevitably going to increase the fear that he felt. Then he was manhandled back into his own home and gratuitous punching to his face took place. There was then the further experience of his having been taken to his bedroom, tied up, put on his bed, something being placed over his head and a further attack upon him for no good reason at all when he was later punched by the offender yet again. In those circumstances it seems to us that, notwithstanding that the victim was not a particularly vulnerable person, this was nonetheless a very serious case. In our judgment the proper sentence following a trial for a case of this kind was of the order of nine years' imprisonment. The appellant had pleaded guilty at an early stage and it was right that he was given credit for his plea of guilty. Following a guilty plea at first instance we would have thought that the appropriate sentence for this offender, with his record, for this offence was one of seven years' imprisonment. 19. We now fall to consider his case after he has already been sentenced once. It is the normal practice of this court to make an allowance for the fact that he has to face resentencing. In considering what the allowance should be we have regard to the information that has been placed before us about the efforts that the appellant has been making whilst he has been in prison. There is no doubt that the root cause of the offender's problems is that he is addicted to drugs and that has led to his offending. There is further good reason to think that his offending on this occasion was related to his drug habit. In those circumstances any effort that he makes to resolve those problems whilst he is serving his lengthy sentence is clearly in the public interest. It is quite clear that, having received the sentence of three years' imprisonment, he has set about addressing those problems and has made real efforts, as the documents before us indicate, to tackle those problems. 20. We think it right to recognise the effort that he has been making, which may in part have been a response to the lenient sentence that he received, by reducing the sentence rather more than we otherwise might have thought to be appropriate. We think that the proper discount to make for the allowance of double jeopardy is one of eighteen months. Accordingly the sentence of seven years that we otherwise would have deemed appropriate becomes one of five-and-a-half years' imprisonment. We quash the sentence of three years' imprisonment and substitute for it a sentence of five-and-a-half years' imprisonment.

```yaml citation: '[2003] EWCA Crim 3073' date: '2003-10-03' judges: - LORD JUSTICE KAY - MR JUSTICE POOLE - 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: [2010] EWCA Crim 2335 Case No: 201001442 A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: MONDAY, 20TH SEPTEMBER 2010 B e f o r e : LORD JUSTICE LEVESON MR JUSTICE DAVIS MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - R E G I N A v BENJAMIN ALAN COOPER - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr J Samuels Qc Appeared On Behalf Of The Applicant Mr H L Bentham Appeared On Behalf Of The Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LEVESON: On 8 February 2010 in the Crown Court at Preston before Nicol J this appellant pleaded guilty to manslaughter by reason of diminished responsibility and attempted murder. On 16 September 2010 he was sentenced for manslaughter to imprisonment for public protection pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of 6 years, less time spent on remand, and for attempted murder to a similar sentence with a minimum term of 4 and a half years, less time spent on remand. On both counts a Hospital and Restriction order was made pursuant to section 45 A of the Mental Health Act 1983 as amended, directing that the appellant was to remain at Guild Lodge secure accommodation, as opposed to prison. The effect of this order was to make the appellant subject to the restrictions contained within section 41 of the Mental Health Act 1983 concerning his release from hospital, where upon depending upon any prior assessment of the Parole Board he would be returned to prison. He now appeals against sentence by leave of the single judge. 2. The facts can be recited comparatively briefly. The appellant lived in Millam with his partner, Claire Marshall, their three year old daughter and Miss Marshall's daughter from a previous relationship. The appellant was drinking too much and taking excessive amounts of illicit drugs, which affected his character and the way he behaved. His relationship with Miss Marshall as a consequence broke down in January 2008. After they parted company the appellant obtained an order that he should be allowed to see his daughter, which regularly he did. 3. At about 9.30 on 24 January 2009 the appellant arrived at Miss Marshall's home by prior arrangement to collect his daughter. The appellant then jumped on Miss Marshall and started hitting her until she fell to the floor. He removed his pen knife and made a determined attempt to cut her head from ear to ear. Presumably finding the knife inadequate, he then went into the kitchen and grabbed a larger knife. Miss Marshall's elder child tried to stop the appellant, but he held the knife up to her. The appellant continued to attack Miss Marshall with the larger knife. The child ran from the house with her little sister and tried to get help from neighbours. 4. The next door neighbour, Mr Morris, was at home when Miss Marshall's daughter banged on the door shouting hysterically for help. Mr Morris attempted to pull the appellant off Miss Marshall, but was unable do so. As a result, he drove to the police station to bring back the police. In the meantime, the appellant had left the house and driven off. He was covered with blood. When the police arrived they found Miss Marshall lying face down with the knife on her back. 5. The attack was of the utmost savagery. 21 incised wounds to the head and neck, 12 wounds to the right arm and 8 wounds to the left arm were found, as well as lesser injuries to the lip and mouth. The injuries were multiple and extensive, with both superficial and deep incised wounds to the neck and lower part of the face. Many were caused by cutting or the slashing motion of the weapon, others by deep, penetrating stab wounds. The wounds encircled the whole of the neck, cutting through skin, the superficial anterior and lateral neck muscles and the posterior para-spinal muscles. The spine had also been damaged. In the opinion of the pathologist, the appellant had been trying to cut off Miss Marshall's head. She died very quickly after the attack, her vital organs and arteries having been severed. 6. In the mean time the appellant had driven to the home of his step-father, Gerald Fern. He knocked on the door covered in blood. Mr Fern let him in and asked what he had been up to. The appellant replied he had been doing a bit of butchery and had come to borrow a meat cleaver and a knife. Mr Fern pointed out the knife draw and went into the dining room. As he turned his back, the appellant picked up the meat cleaver and struck Mr Fern two forceful blows on the head, stunning him. A struggle ensued. The appellant pulled a second knife from the drawer and attempted to wound Mr Fern. The struggle moved into the street, where Mr Fern eventually managed to disarm the appellant, by which time he was bleeding heavily and had been severely injured. The appellant ran back inside, picked up two other knives, and returned to attack Mr Fern once more. The struggle recommenced until the appellant suddenly announced "that's enough." Mr Fern asked why. The appellant replied "Claire is in a worse state than you are". There were a number of eye witnesses to the attack, and the police were soon on the scene. 7. Mr Fern was airlifted to hospital. Had he not arrived so quickly he may not have survived. He suffered a severe laceration to the right ear, which was nearly completely cut off. He had lacerations to the left forehead and left neck, a bruised and swollen right eye, several deep cuts to the right arm and deep lacerations to his skull, right shoulder, chest and back. He had significant injuries to the tendons of his right arm. It was unknown whether the functions of his arm would be permanently affected. 8. The appellant was arrested nearby. He was briefly examined by a psychiatrist before he was interviewed. He gave a detailed account in the interview, describing the weapons and attacks. He said he felt frenzied at the time. He thought Miss Marshall was going to have him murdered so he had seized the initiative. He had attacked Mr Fern, as if he was going to get killed himself he might as well go and get Mr Fern. He would not admit wanting to kill Miss Marshall, but he did accept that probably he wanted to inflict serious injury upon Mr Fern, although he did not know if he actually wanted to kill him. 9. The import of these offences is described in moving terms in victim personal statements from Miss Marshall's daughters, her father and the grandparents of two of her children, who are now looking after all three girls. The effects of these offences will clearly be with them forever. 10. The appellant is now aged 36 and was of prior good character. Although he had no previous history of prior mental disorder, he was clearly, at least in substantial part, in the grip of serious mental disorder at the time of this offending. Initially he was considered unfit to plead and for the purposes of sentence there were not only a number of reports prepared covering his fitness to plead, but also a series of psychiatric reports dealing with the question of diminished responsibility. In particular a report of 21 November 2009 provided on behalf of the appellant by Dr Green stated that the appellant suffered from a major mental illness classified as a delusional disorder or paranoid schizophrenia. Had he not been suffering from a severe mental illness the offences would not have occurred. They were driven, he concluded, by his delusional beliefs. The severity of the illness indicated that his responsibility for his actions was substantially diminished. He recommended a hospital order with indefinite restriction. 11. In a report dated 25 November 2009 prepared for the Crown, Professor Peckitt noted the appellant's heavy drug misuse coupled with aggressive and abusive elements of his personality, which he concluded gave rise to the situation in which he had developed an acute and severe delusional disorder. He considered his possessive, abusive and violent conduct towards his former partner possessed a significant element in the creation of risk when he became unwell. He concluded that the appellant exhibited the signs of threat control override syndrome, suffering from a severe mental disorder at the time of both offences. He also recommended detention under the Mental Health Act, observing that a restriction order under section 41 would be appropriate because the risk to the public was manifest, and the need for long term supervision almost unquestionable. He raised the alternative disposal of a hybrid order, reserved for cases in which he considered that there was a high level of culpability. Such a sentence would be optimised without loss of opportunity for care and rehabilitation. He also concluded that attaching a tariff of more than five years might undermine and paradoxically weaken the benefits of mental health treatment. 12. A further report was available from the psychiatrist who had been responsible for the appellant's treatment, Dr Abdur. He confirmed that the appellant was suffering from a severe psychiatric illness, paranoid schizophrenia, which is a mental disorder within the meaning of the Act . The condition, he concluded, had deteriorated in the weeks leading up to the offences, and the appellant's illness required continuing detention in a secure hospital for appropriate treatment. It was highly likely that he was driven by his delusional beliefs when he committed the offences and was suffering from paranoid schizophrenia. 13. When passing sentence the judge, who had heard both Dr Green and Professor Peckitt give evidence at length, observed that these were appalling crimes. If the appellant had not been suffering from a mental disorder, they would have led to extremely lengthy sentences of imprisonment. He accepted the conclusion of the doctors that the appellant was suffering from a severe psychotic mental disorder, probably taking the form of paranoid schizophrenia. He went on that the abnormality of mind from which he was suffering was directly linked to his attack on Claire. He attacked her because in his disturbed state he believed that she was planning to kill him. He could have given no thought of the impact on Claire's daughters, especially the two who had witnessed events. In a person of sound mind, indifference or thoughtlessness of this kind would be a further aggravating feature, but the learned judge proceeded on the basis that this was an aspect of the delusional disorder which had such power over the appellant. 14. He also concluded that the appellant was still suffering from a serious mental disorder when he attacked Gerald Fern, a quarter of an hour later. The link, however, was less clear cut. The appellant thought that Mr Fern had been involved in financial conspiracy against him, but did not consider that he was at immediate risk from him. He felt he crossed the point of no return so, "might as well" settle his deluded account with him, too. Even from that distorted perspective, the learned judge concluded that the attack was an act of revenge, not self-defence. 15. The judge accepted that neither offence would have occurred but put for the appellant's illness. Whilst he suffered a complete loss of control prior to killing Claire, he had regained some control by the time he came to attack Gerald. The appellant's disorder was clearly of a nature and degree that made detention in hospital to obtain medical treatment appropriate. Such medical treatment was available, and he had responded positively to the treatment so far. The judge, however, went on: "While I accept that you need treatment for your mental disorder in your case, the sentence I must impose must also meet two other objectives. Your psychosis can cause you to be an extremely dangerous person, as these offences demonstrate. There should be no question of release until the responsible authorities are clear that you no longer represent a danger to public safety. Second, while your responsibility for these crimes is diminished by your mental disorder, it is not wholly extinguished. A significant degree of responsibility remains. You have pleaded guilty to manslaughter on the basis of diminished responsibility. Once you were in the grip of the severe psychosis, I accept that your responsibility for Claire's death was very considerably diminished. It is not, though, eliminated entirely. Professor Peckitt thought that it was overwhelmingly likely that this psychosis was stimulated by your misuse of illegal drugs, particularly amphetamines, and, somewhat ironically, your withdrawal from them in the Autumn of 2009. Dr Green thought it was more likely than not that your drug abuse contributed to your illness. It is true that you had not taken illegal drugs or alcohol at the time of these offences. I accept that you would not have foreseen that these drugs would drive you to mental disorder, but by starting to take them you did voluntarily embark upon a course which was to have such tragic consequences. For that you must bear some responsibility. That applies as much to the attack on Gerald. Here, too, the attack would not have happened but for your delusions, yet you had regained sufficient control after killing Claire to drive your car to his house and to appear relatively calm when you first spoke to him. Although you thought that Gerald was part of the conspiracy against you, your attack on him was not prompted by the same motives as had been your attack on Claire. This means that the difference between these two offences is not just the illegal one, but there is no partial defence to the offence of attempted murder based on diminished responsibility. For these reasons I consider that I must impose a sentence of imprisonment. You undoubtedly pose a very significant risk of causing very serious violence to members of the public. That risk may diminish as treatment continues to be successful, but when, if at all, that will occur is uncertain. The risk will continue for an indefinite time into the future. Only an indeterminate sentence of imprisonment will adequately protect the public." 16. Mr Samuels QC, who appears for the appellant in this court as he did before Nicol J, has taken us to the origins of section 45 A of the Mental Health Act 1983 , to be found in the White Paper, Protecting the Public, published in 1999, which included the following analysis: "8.12. The government proposes changes in the arrangements for the remand, sentencing and subsequent management of mentally disordered offenders to provide greater protection to the public, and to improve access to effective medical treatment for those offenders who need it. The central change, if adopted, would be the provision of a "hybrid order" for certain mentally disordered offenders, for whom the present form of hospital order is unsatisfactory, particularly those who are considered to bear a significant degree of responsibility for their offences. The order will enable the court in effect to pass a prison sentence upon an offender and at the same time his immediate admission to hospital for medical treatment. 8.13. The hybrid order, together with other proposals amending the detail of the Mental Health Act 1983 would substantially increase the flexibility of arrangments for dealing with mentally disordered offenders at all stages from remand through to rehabilitation. In particular it would enable the court to deal with some of the most difficult cases in a way which took proper account of the offender's need for treatment, the demands of justice and the right of other people to be protected from harm. 8.14. Existing sentencing arrangements for offenders who are mentally disordered require the court to decide either to order the offender's detention in hospital for treatment or to sentence him to imprisonment or to make some other disposal. In some cases an offender needs treatment in hospital but the circumstances of the offence also require a fixed period to be served in detention. This may be because the offender is found to bear some significant responsibility for the offence, notwithstanding his disorder, or because the link between the offending behaviour and the mental disorder is not clear at the time of sentencing. The hybrid disposal would be a way of enabling the requirement of sentencing in such cases to be met. Under an order an offender would remain in hospital for as long as his mental condition required but if he recovered or was found to be untreatable during the fixed period set by the court he would be remitted to prison. The hybrid order was recommended for use in sentencing offenders suffering from psychopathic disorders by the Department of Health and Home Office working group on psychopathic disorder. The Government is considering whether it might be made available in respect of offenders suffering from all types of mental disorder currently covered by Mental Health legislation." 17. Legislative effect was given to this proposal by section 45 A of the 1983 Act initially in respect of psychiatric disorders, but now extended to all forms of mental disorders. Mr Samuels places particular emphasis on paragraph 8.12 and the need for the requirement that an offender retain a significant degree of responsibility for their offence. He also argues that the only two examples of this power being considered by this court, Staines [2006] EWCA Crim 15 and House [2007] EWCA Crim 2559 , were cases where the order was appropriate because of the uncertain nature of the appellant's condition, although his suggestion that a mental illness will require treatment and a psychiatric order is likely to merit imprisonment is not reflected in the authorities. In reality, those suffering from a mental illness such as depression may very well retain significant responsibility for their offending, albeit that the responsibility is substantially diminished, but not extinguished by reason of their illness. 18. Mr Samuels does not seek to challenge the assertion that a substantial period of treatment is likely to be necessary. He submits the pitfall of the sentence is that at the time when a Mental Health Tribunal is prepared to conclude the appellant no longer suffers from a mental illness sufficient to warrant detention in hospital, his therapeutic rehabilitation could be thwarted because the Parole Board would have different criteria to consider. Based on the evidence of Dr Green, he describes the result, in all probability, would be a transfer back to a prison and a heightened risk of relapse with a significant danger to staff and prisoners within the prison setting, before a transfer back to hospital might be affected. Pausing there, we observe that if the appellant's therapeutic rehabilitation were to be so fragile that a prison setting, however structured to deal with one who had suffered serious mental disorder, might cause it to reemerge, for our part we would be very concerned about the potential pitfalls he would face if he had been discharged back immediately into the community. We note that Nicol J considered the risk, but still considered it appropriate to make the order that he did. 19. In any event, we do not accept that the potential risk represents a realistic appreciation of the position. For many years under section 47 of the Mental Health Act 1983 it has been possible for the Secretary of State to transfer those sentenced to a term of imprisonment to a mental hospital if mental illness requiring such treatment has required it. Assuming eligibility for parole, when detention in hospital is no longer necessary the responsible medical officer treating such a prisoner can doubtless recommend either a return to prison or a discharge into the community, presumably in the usual course of events through mental health facilities offering decreasing security. As identified in Staines , the procedure is for the Mental Health Review Tribunal, if so satisfied, to make a recommendation to the Parole Board for release. The offender remains in hospital until such time as the Parole Board makes its decision. Mr Samuels also suggests that in a secure hospital the appellant would not have access to the type of courses that would be necessary to satisfy the Parole Board that he no longer posed a significant risk to the public. Suffice to say we have no basis for concluding that ways could not and would not be devised for the appellant to demonstrate that he did not pose a risk to the public, which in any event would doubtless be necessary in order for him to persuade a Mental Health Review Tribunal that his mental illness was sufficiently abated that his continued detention was no longer justified. 20. As to post release support, although supervision and monitoring arrangements which may be obtained under a life licence are not necessarily the same as a comprehensive and social psychiatric support package and reporting requirements which a Mental Health Review Tribunal might impose as a condition of discharge, we can see no reason why appropriate arrangements could not be made at the instance of the Parole Board. Further, what is absolutely critical for appropriate cases is the wider ability to recall for breach of a life licence, as opposed to a failure to comply with a support package put in to place by the Mental Health Review Tribunal, and in particular the wider ability to recall, absent collapse of mental health. 21. This analysis is not of course dispositive of this appeal, because the thrust of Mr Samuels' cogent argument is that the appellant bore no significant responsibility for the crimes to which he pleaded guilty. The illness was clearly defined, as was the link between that illness and the offending, so he argued that the judge was wrong to attach that responsibility to the appellant. There was no reliable evidence enabling the court to assess the contribution that had been made in the development of the appellant's psychosis by his voluntary abuse of drugs, the consequences of which he could not have seen. Mr Bentham QC for the Crown challenges this submission and argues that the appellant bore a significant responsibility for what he had done. 22. We revert to the judge's conclusions. He recognised that the appellant had attacked Claire Marshall because of his delusional belief that she was planning to kill him, and his failure to recognise the impact on the daughters, especially the two who witnessed attack, was a further aspect of his delusional disorder. He also recognised that the delusional disorder was a powerful driver in relation to the attempted murder of Gerald Fern. Having considered the papers with real care and having heard both the psychiatrists, he remained of the view that the appellant had regained some control by the time of his attack on Gerald and specifically concluded that his responsibility was not wholly extinguished, but that a significant degree of responsibility remained. By voluntarily ingesting prescribed drugs he had voluntarily embarked upon the course of events which led to his illness, and therefore bore some responsibility, and he had also regained a measure of control when he went on to attack Mr Fern. 23. Nicol J was in the best position to reach conclusions about what the psychiatrist said and the responsibility of the appellant. He did so expressing his views carefully and cogently, and there is no basis upon which it would be appropriate for us to interfere with those conclusions. In those circumstances it is not realistic to argue that the judge was wrong in principle to conclude that the appellant bore a significant responsibility for the offences, and furthermore that public safety did not justify the additional protection that an order under section 45 A of the Mental Health Act would bring. In these circumstances, notwithstanding Mr Samuel's helpful submissions, this appeal is dismissed.

```yaml citation: '[2010] EWCA Crim 2335' date: '2010-02-08' judges: - LORD JUSTICE LEVESON - MR JUSTICE DAVIS - MR JUSTICE LLOYD JONES ```

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Judgment Approved by the court for handing down Double-click to enter the short title (subject to editorial corrections) Neutral Citation Number: [2021] EWCA Crim 600 Case No: 202100554 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM the Crown Court at Stoke on Trent Recorder Julian Taylor T20190044 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/04/2021 Before : PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) LORD JUSTICE FULFORD MR JUSTICE JEREMY BAKER and MR JUSTICE HENSHAW - - - - - - - - - - - - - - - - - - - - - APPLICATION BY PROSECUTION FOR LEAVE TO APPEAL UNDER Section 58 CRIMINAL JUSTICE ACT 2003 (MS) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M Duck Q.C. (instructed by West Midlands CPS ) for the Applicant Mr B Williams (assigned by the Registrar of Criminal Appeals ) for MS Hearing dates: 15 April 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document. Lord Justice Fulford VP: Introduction 1. This is an application by the prosecution for leave to appeal under section 58 Criminal Justice Act 2003 . The provisions of section 71 of the Criminal Justice Act 2003 apply to these proceedings. By virtue of those provisions, no publication may include a report of the present hearing or this judgment until the conclusion of the trial or the proceedings are otherwise brought to a conclusion, unless the Court orders that the provisions are not to apply. However, this anonymised judgment may be published. 2. The provisions of section 45 Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the child of the respondent, SS, is aged 15 (she was born in May 2005). We make an order preventing any information being included in a publication which is likely to lead members of the public to identify her as someone concerned in these proceedings. The order will cease to have effect when she attains the age of 18. There is no restriction on the publication of this judgment. 3. On 23 April 2019, in the Crown Court in Stoke on Trent (Judge Fletcher), the defendant, who is the respondent to this application (MS) pleaded guilty to forgery (count 1), contrary to section 1 Forgery and Counterfeiting Act 1981 . 4. On 18 February 2021, in the Crown Court in Stoke on Trent (Recorder Julian Taylor), the trial of MS commenced, in respect of an offence of attempted child abduction (count 2), contrary to section 1(1) Criminal Attempts Act 1981 and section 1 Child Abduction Act 1984 . 5. On 19 February 2021, at the close of the prosecution case, the judge acceded to the defence submission of no case to answer. 6. On 22 February 2021, the prosecution indicated an intention to appeal and gave the necessary acquittal undertaking. The judge refused an application by the Crown for leave to appeal or an order of expedition. 7. The Registrar has referred the prosecution’s application for leave to appeal under section 58 Criminal Justice Act 2003 against the ruling of Mr Recorder Taylor to the full court. The appeal notice was served in time, but the applicant was late in furnishing the relevant transcripts. No point is taken on this failure to comply with the rules. The Facts 8. The respondent had three children – SR (born in October 2000), SS (referred to above) and SA (born in November 2014). SS lived with her mother, the respondent MS, who was separated from her father (AC), following an acrimonious breakup. In 2013, AC obtained a Contact Order from the Family Court giving him the right to see SS overnight at least twice a week. 9. In 2017, the respondent MS, having started a new relationship with a man who is a national of a north African country, asked AC if he would permit her to take SS (then aged 12) to live abroad. He refused. On 22 November 2017, the Family Court issued a Prohibited Steps Order refusing to allow the respondent to take SS out of the jurisdiction. A further Court hearing was listed for 24 November 2017. 10. However, MS had already started to make plans to leave the country. She forged AC’s signature on a form entitled ― Permission to Take A Child Abroad ‖ dated 22 November 2017 and she had searched online as to how long a Prohibited Steps Order would remain in force once the child had been taken out of the country. She originally booked a ferry from Dover to Calais for 24 November 2017, but informed a friend she had managed to bring this forward to 23 November 2017. 11. On 23 November 2017, the respondent and her boyfriend packed all their belongings and the children into their car and drove towards Dover. She informed SS’s school that she would be absent as they were viewing houses. She told a friend that she was going to miss her and England, and a little later sent a message to say they had left and were running late. 12. The social worker who had involvement with the family tried unsuccessfully to contact the respondent on 23 November 2017. When she attended the home address, she realised that the family had left and she contacted the police. The respondent’s vehicle was stopped just after 2pm at Cobham Services, in the vicinity of junctions 9 and 10 on the M25. The police took possession of five United Kingdom passports and one expired passport from the north African country of which the respondent’s new partner was a national, along with documents regarding the ferry booking and hotel bookings in France. 13. In interview, the respondent denied intending to leave the jurisdiction. She stated that when the court refused her permission to leave with SS, she had decided to travel to the home of a relative in Southampton. 14. The narrative set out above was essentially undisputed at trial. The Judge’s Ruling 15. The judge ruled that the offence had not been made out in law. There was, accordingly, no case to answer and the case should be withdrawn from the jury. 16. The respondent had accepted that she had clearly taken a number of preparatory acts in connection with taking her children out of the jurisdiction, but the critical question was whether those acts were ― more than merely preparatory ‖. The judge was referred to some of the relevant jurisprudence, to which we will turn in our analysis of the merits of this application. He concluded that as the respondent had been stopped some 85 miles from the port of Dover, her acts were no more than merely preparatory. There was, in his judgment, no case to answer and the jury were directed to return a not guilty verdict. The Submissions on the Appeal 17. Mr Duck Q.C., on behalf of the applicant, relies on the respondent’s guilty plea to the forgery of the ― Permission to Take Child Abroad ‖ form which would have been required at the border as part of her attempt to leave the country with her children. It is submitted that the commission of the offence in count 1 demonstrated significant planning and deception on her part. Furthermore, her internet searches on 22 November 2017 indicated that the respondent was contemplating defying the Prohibited Steps Order very shortly after it had been imposed and she immediately made plans to expedite her departure to north Africa, most likely sailing from Civitavecchia on the Italian coast. On 23 November 2017, whilst organising the family’s departure, she informed a friend that she had left and would miss her and England. She made the necessary onward travel arrangements through Europe, including booking two hotels in France, and they had passed the junction on the M25 that would have taken her to Southampton (the M3 motorway), which she claimed was her intended destination. There was a late change at 9.27am 23 November 2017 to the time of the sailing (10.15am to 4.40pm). On this basis the Crown submits the acts taken were more than merely preparatory. The offence had required substantial organisation, and the respondent admitted having put everything necessary in place. The offence was foiled only by the timely reaction of Social Services and the police. 18. It was additionally suggested in writing by Mr Duck that attempted abduction is a continuing offence, which had begun when the respondent left the family home with the child intending to leave the jurisdiction. However, in argument Mr Duck agreed that the simple question that we are asked to address on this application is whether on all the facts of the case the respondent had taken steps that were, prima facie , more than merely preparatory and whether it was open to the jury to convict her of attempting to commit the offence of parental abduction. 19. Mr Williams, on behalf of the respondent, supports the ruling of the judge. It is suggested that there was insufficient evidence that she had properly embarked upon this crime or had tried to commit the offence. It is submitted that at the point of arrest she was at too far a remove from committing the crime, that is, removing the children from the jurisdiction by leaving the country. Mr Williams placed considerable emphasis on the ingredient of ― geographical proximity ‖ and suggested that the respondent needed to have been at the ferry port, attempting to board the ferry for her actions to have become more than merely preparatory. When she was stopped on the M25, the respondent was not yet, Mr Williams submitted, in a position where she was able to commit the offence. Discussion 20. Section 1 Criminal Attempts Act 1981 , as relevant, is in the following terms: Attempting to commit an offence. (1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence. […] 21. Child abduction by a parent (or similar person such as a guardian) occurs when a person connected with a child under the age of 16 takes or sends a child out of the United Kingdom without the appropriate consent ( Section 1(1) Child Abduction Act 1984 ). 22. The locus classicus on the interpretation of section 1(1) Criminal Attempts Act 1981 was provided by Lord Lane CJ in R v Ian John Gullefer (1990) 91 Cr App R 356 , 358 and 359; [1990] 1 WLR 1063 , 1066: ―It seems to us that the words of the Act of 1981 seek to steer a midway course. They do not provide […] (that) the defendant must have reached a point from which it was impossible for him to retreat before the actus reus of an attempt is proved. On the other hand the words give perhaps as clear a guidance as is possible in the circumstances on the point of time at which […] (the) ―series of acts‖ begin. It begins when the merely preparatory acts come to an end and the defendant embarks upon the crime proper . When that is will depend of course upon the facts in any particular case.‖ (our emphasis) 23. The facts in Gullefer , as taken from the judgment, were that on 5 March 1985, the appellant attended the Greyhound Racing Stadium at Romford. During the last race, as the dogs rounded the final bend, he climbed the fence on to the track in front of the dogs, waving his arms and attempting to distract them. His efforts were only marginally successful, and the stewards decided that it was unnecessary to declare ―no race.‖ Had they made such a declaration, by the rules the bookmakers would have been obliged to repay the amount of his stake to any punter, but would not have been liable to pay any winnings to those punters who would have been successful if the race had been valid. The court concluded (at page 358): ―Our view is that it could not properly be said that at that stage he was in the process of committing theft. What he was doing was jumping on to the track in an effort to distract the dogs, which in its turn, he hoped, would have the effect of forcing the stewards to declare ―no race,‖ which would in its turn give him the opportunity to go back to the bookmaker and demand the £18 he had staked. In our view there was insufficient evidence for it to be said that he had, when he jumped on to the track, gone beyond mere preparation.‖ 24. Lord Lane’s approach was followed, inter alia , in R v Campbell (1991) 93 Cr App R 350 . In that case the appellant was convicted of attempted robbery and pleaded guilty to possessing an imitation firearm. As usefully summarised in the headnote, police officers, having received information that a robbery might be made on a sub post office, kept watch. The appellant was seen to be lurking in the vicinity, having arrived there on a motor cycle wearing a crash helmet. He then was seen walking around and wearing sunglasses and seemed to be carrying some heavy object. He stopped some 30 yards from the post office, took off his glasses and looked round. He then walked away and 30 minutes later returned and was arrested in front of the post office. On being searched, the sunglasses, an imitation gun and a threatening note were found upon him. He admitted his actions, said that the note was meant to frighten the person behind the counter at the post office; but maintained that he had then decided not to rob the post office and was arrested before he could return to his motor cycle and drive off. As Watkins LJ observed at page 355: ―He was not, as he had done previously that day, wearing, as a form of disguise, sunglasses. It was not suggested that he had, in the course of making his way down the road past the post-box, turned and, so to speak, moved towards the door of the post office so as to indicate that he intended to enter that place.‖ […] ―A number of acts remained undone and the series of acts which he had already performed—namely, making his way from his home or other place where he commenced to ride his motor cycle on a journey to a place near a post office, dismounting from the cycle and walking towards the post office door—were clearly acts which were, in the judgment of this court, indicative of mere preparation, even if he was still of a mind to rob the post office, of the commission that is of the offence of robbery.‖ 25. In Attorney-General’s Reference (No.1 of 1992) (1993) 96 Cr App R 298 , in a case of attempted rape, Lord Taylor CJ observed at page 302: ―It is not, in our judgment, necessary, in order to raise a prima facie case of attempted rape, to prove that the defendant with the requisite intent had necessarily gone as far as to attempt physical penetration of the vagina. It is sufficient if there is evidence from which the intent can be inferred and there are proved acts which a jury could properly regard as more than merely preparatory to the commission of the offence. For example, and merely as an example, in the present case the evidence of the young woman's distress, of the state of her clothing, and the position in which she was seen, together with the respondent's acts of dragging her up the steps, lowering his trousers and interfering with her private parts, and his answers to the police, left it open to a jury to conclude that the respondent had the necessary intent and had done acts which were more than merely preparatory. In short that he had embarked on committing the offence itself .‖ (our emphasis) 26. A notable further elaboration of the approach to be adopted was provided in R v Geddes (1996) Crim LR 894-896 by a court presided over by Lord Bingham CJ. The facts were that the appellant was convicted of attempted false imprisonment. He had been seen by a teacher in the boys’ lavatory block of a school. He had no connection with the school and no right to be there. He had a rucksack with him. A woman police officer who was, by chance, on the premises saw him and shouted at him. He made good his escape. A cider can which had belonged to the appellant was found in a cubicle in the lavatory block. His rucksack was later discovered in bushes. It contained a large kitchen knife, some lengths of rope and a roll of masking tape. The appellant was arrested. The prosecution alleged that the presence of the cider can showed that the appellant had been inside a lavatory cubicle, and that the contents of the rucksack could have been used to catch and restrain a boy entering the lavatory. 27. As to the approach in principle to be taken, the judgment set out the following: ―[…] the authorities showed that the line of demarcation between acts which were merely preparatory and acts which might amount to an attempt was not always clear or easy to recognise. There was no rule of thumb test, and there must always be an exercise of judgment based on the particular facts of the case. It was an accurate paraphrase of the statutory test to ask whether the available evidence, if accepted, could show that a defendant had done an act showed that he had actually tried to commit the offence in question, or whether he had only got ready or put himself in a position or equipped himself to do so. 28. On the facts, the court decided: ―In the present case there was not much room for doubt about the appellant’s intention, and the evidence was clearly capable of showing that he had made preparations, had equipped himself, had got ready, had put himself in a position to commit the offence charged. It was true that he had entered the school, but he had never had any contact or communication with, nor had confronted, any pupil at the school. The whole story was one which filled the court with the gravest unease, but on the facts of the case the court felt bound to conclude that the evidence was not sufficient in law to support a finding that the appellant had done an act which was more than merely preparatory to wrongfully imprisoning a person unknown.‖ 29. In Moore v DPP [2010] EWHC 1822 (Admin) ; [2010] R.T.R. 36, the facts, summarised in the headnote (H4) were: ―The defendant’s car was parked in a recreational facility inside the perimeter fence of the Atomic Weapons Establishment at Aldermaston, an area not open to the public, and he asked a police constable manning a gate if he could collect it. When the constable drove the defendant to collect the car he smelt alcohol on the defendant’s breath and, when the defendant subsequently approached the gate, which led onto the A340, driving his car, the constable signalled him to stop. The defendant provided a positive breath test, was arrested and after caution said that he needed to drive his friend home. A breath specimen provided at the police station contained alcohol in excess of the prescribed limit.‖ 30. The defendant was charged with the offence of attempting to drive a motor vehicle on a public road, namely the A340, having consumed alcohol in excess of the prescribed limit and convicted. The court concluded that there was no reason in law or logic why the defendant could not have been attempting to drive on a road simply by virtue of his having been driving within an area which was not open to the public, that the achievement of motion was not the critical distinction between driving and attempting to drive, and, therefore, the fact that the defendant’s car was in motion did not preclude a finding that he was attempting to drive on a public road. 31. Owen J in giving the lead judgment observed: ―23. Under the Criminal Attempts Act 1981 acts that are ―merely preparatory‖ are excluded from the ambit of an attempt to commit an offence. But all acts short of those necessary for the commission of the intended substantive offence are in some sense preparatory. The introduction of the qualifying adverb ―merely‖ in the Criminal Attempts Act must have been intended by Parliament to distinguish acts which, although preparatory, are sufficiently close to the final act or acts to be properly regarded as part of the execution of the defendant’s criminal course of conduct, from those which are not. All will turn on the facts of the case.‖ 32. Toulson LJ, in the course of his concurring judgment, spoke approvingly of a passage from the Law Commission’s Consultation Paper on Conspiracy Attempts LCCP No.183, taken from the first and last sentences of para.14.5: ―27 […] To elaborate further, preparatory conduct by D which is sufficiently close to the final act to be properly regarded as part of the execution of D’s plan can be an attempt … In other words, it covers the steps immediately preceding the final act necessary to effect D’s plan and bring about the commission of the intended offence.‖ 33. It is to be recognised, therefore, that there is a necessary distinction to be drawn between someone placing himself in a position to commit an offence ( viz. mere preparatory acts), on the one hand, and attempting to commit the offence, on the other. As Nicol J recognised in Mason v Director of Public Prosecutions [2009] EWHC 2198 (Admin) ; [2010] RTR 11, ― the line is fine ‖ but the court must avoid conflating an admitted mens rea with the decision as to whether a ― sufficient actus reus ‖ has been established (see [17] and [20]). 34. It is important in our judgment not to lose sight of the considerable differences that exist between the various offences which may be attempted (essentially the entire criminal calendar, with some clear exceptions such as attempting to commit the crime of conspiracy, ( section 1(4) (a) Criminal Attempts Act 1981 ) and ―compassing‖ the Monarch’s death), along with multiple different ways in which even similar or identical offences are attempted. The facts of the cases considered above serve to demonstrate the sheer variety of both circumstances and offending. This results in highly fact-specific decisions as to whether the steps taken by the accused were no more than merely preparatory. Mr Williams, in support of his submissions that there needed to be ― geographical proximity ‖, raised the analogy of the offence of attempted murder, and suggested that it would be inconceivable that an individual could properly be said to have attempted murder at a distance of 85 miles from the intended victim. Depending always on the facts, the proximity of the accused to an intended murder victim may be critical in determining whether the steps taken by the accused were more than preparatory. In many cases when a sole offender contemplates murder (or an assault) by way of a direct physical attack, an attempt to commit the crime will only occur when the perpetrator and victim are in close proximity, when the action necessary (the actus reus ) for attempting to kill or harm takes place (although we stress there will be undoubted exceptions to this sweeping generalisation). Similarly, in an attempted armed robbery of the kind contemplated in Campbell , proximity to the target premises, along with an evinced intention to enter, may be critical. Distance, or rather proximity, therefore, may be an important factor for attempted crimes of that kind. But no single factor, including proximity, constitutes a uniform test that applies to all species of offences. Child abduction by a person connected with the child is an entirely different offence to murder, assault and robbery. The action necessary for an attempted parental abduction, as in the instant case, may have been ― embarked upon ‖ at a considerable distance from the port or airport. For child abduction, geographical proximity does not have the same relevance as with other alleged crimes. Whether, prima facie , steps had been taken as part of the execution of the plan which were sufficiently close to the final act will always depend, therefore, on the ingredients of the offence and the facts of the case. 35. In the present trial, there was evidence that the respondent had left Stoke with the intention of leaving the country with her family and new boyfriend. She had the five relevant passports and the one-way tickets for the trip from Dover to Calais in her possession. She had booked accommodation for the journey through France en route to the port in Italy. The family had packed their bags, loaded the car and had left their home. The respondent had expressed her clear intention to leave the country and she had forged the necessary permission document for this purpose. The car in which they were travelling was headed towards Dover (albeit they had 85 miles yet to travel), the time of the sailing had been changed at the last moment, and the respondent had checked the ferry times during the journey. 36. We are entirely confident that these various steps, viewed together, were, to borrow the language of the Consultation Paper ([32] above), part of the execution of respondent’s plan to abduct SS. They were steps immediately preceding the final act that were necessary to complete her plan and to bring about the commission of the intended offence ( viz. by travelling on the ferry to France). Put otherwise, when arrested, she was in the position of attempting to commit the offence in question, rather than simply getting ready or putting herself in a position to do so, and we have no doubt she had embarked ― upon on the crime proper ‖. The distance they had yet to travel to Dover on the motorway, which was a critical factor for the judge, was essentially unimportant given the multiple steps that, by the time they were intercepted, had been taken and the overall stage in the venture that had been reached. It was open to the jury, in our judgment, to conclude that the respondent was attempting to abduct SS. 37. We grant the application. We reverse the ruling of the judge which we consider to have been wrong in law. We order the resumption of the proceedings in the Crown Court by way of a new trial in front of a different judge.

```yaml citation: '[2021] EWCA Crim 600' date: '2021-04-27' judges: - LORD JUSTICE FULFORD - MR JUSTICE JEREMY BAKER - MR JUSTICE HENSHAW - APPLICATION BY PROSECUTION FOR LEAVE TO APPEAL UNDER Section 58 CRIMINAL JUSTICE ACT 2003 ```

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

Neutral Citation Number: [2015] EWCA Crim 1567 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 29 th September 2015 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES - - - - - - - - - - - - - - - - - - - - - Criminal Practice Directions 2015 - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment 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) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court CRIMINAL PRACTICE DIRECTIONS 2015 TABLE OF CONTENTS CPD I General matters A CPD I General matters 1A CPD I General matters 3A Case management CPD I General matters 3B Pagination and indexing of served evidence CPD I General matters 3C Abuse of process stay applications CPD I General matters 3D Vulnerable people in the Courts CPD I General matters 3E Ground rules hearings to plan the questioning of a vulnerable witness or defendant CPD I General matters 3F Intermediaries CPD I General matters 3G Vulnerable defendants CPD I General matters 3H Wales and the Welsh Language: Devolution issues CPD I General matters 3J Wales and the Welsh Language: Applications for evidence to be given in Welsh CPD I General matters 3K Wales and the Welsh Language: Use of the Welsh Language in Courts in Wales CPD I General matters 3L Security of Prisoners at Court CPD I General matters 3M Procedure for application for armed police presence in Crown Courts and magistrates’ court buildings CPD I General matters 5A Forms CPD I General matters 5B Access to information held by the Court CPD I General matters 5C Issue of medical certificates CPD I General matters 6A Unofficial sound recording of proceedings CPD I General matters 6B Restrictions on reporting proceedings CPD I General matters 6C The use of live text-based forms of communication (including Twitter) from court for the purposes of fair and accurate reporting CPD II Preliminary proceedings 8A Defendant’s record CPD II Preliminary proceedings 9A Allocation (mode of trial) CPD II Preliminary proceedings 10A Settling the indictment CPD II Preliminary proceedings 10B Voluntary bills of indictment CPD III Custody and bail 14A Bail before sending for trial CPD III Custody and bail 14B Bail: Failure to surrender and trials in absence CPD III Custody and bail 14C Penalties for failure to surrender CPD III Custody and bail 14D Relationship between the Bail Act offence and further remands on bail or in custody CPD III Custody and bail 14E Trials in absence CPD III Custody and bail 14F Forfeiture of monies lodged as security or pledged by a surety/estreatment of recognizances CPD III Custody and bail 14G Bail during trial CPD III Custody and bail 14H Crown Court judge’s certification of fitness to appeal and applications to the Crown Court for bail pending appeal CPD IV Disclosure 15A Disclosure of unused material CPD V Evidence 16A Evidence by written statement CPD V Evidence 16B Video recorded evidence in chief CPD V Evidence 16C Evidence of audio and video recorded interviews CPD V Evidence 17A Wards of Court and children subject to current Family proceedings CPD V Evidence 18A Measures to assist a witness or defendant to give evidence CPD V Evidence 18B Witnesses giving evidence by live link CPD V Evidence 18C Visually recorded interviews: memory refreshing and watching at a different time from the jury CPD V Evidence 18D Witness anonymity orders CPD V Evidence 19A Expert evidence CPD V Evidence 21A Spent convictions CPD VI Trial 24A Role of the justices’ clerk/legal adviser CPD VI Trial 26A Juries: introduction CPD VI Trial 26B Juries: preliminary matters arising before jury service commences CPD VI Trial 26C Juries: eligibility CPD VI Trial 26D Juries: precautionary measures before swearing CPD VI Trial 26E Juries: swearing in jurors CPD VI Trial 26F Juries: ensuring an effective jury panel CPD VI Trial 26G Juries: preliminary instructions to jurors CPD VI Trial 26H Juries: discharge of a juror for personal reasons CPD VI Trial 26J Juries: views CPD VI Trial 26K Juries: directions to jury before retirement CPD VI Trial 26L Juries: jury access to exhibits and evidence in retirement CPD VI Trial 26M Jury Irregularities CPD VI Trial 26N Open justice CPD VI Trial 26P Defendant’s right to give or not to give evidence CPD VI Trial 26Q Majority verdicts CPD VII Sentencing A Pleas of guilty in the Crown Court CPD VII Sentencing B Determining the factual basis of sentence CPD VII Sentencing C Indications of sentence: R v Goodyear CPD VII Sentencing D Facts to be stated on pleas of guilty CPD VII Sentencing E Concurrent and consecutive sentences CPD VII Sentencing F Victim Personal Statements CPD VII Sentencing G Families bereaved by homicide and other criminal conduct CPD VII Sentencing H Community Impact Statements CPD VII Sentencing I Impact Statements for Businesses CPD VII Sentencing J Binding over orders and conditional discharges CPD VII Sentencing K Committal for sentence CPD VII Sentencing L Imposition of life sentences CPD VII Sentencing M Mandatory life sentences CPD VII Sentencing N Transitional arrangements for sentences where the offence was committed before 18 December 2003 CPD VII Sentencing P Procedure for announcing the minimum term in open court CPD VII Sentencing Q Financial information required for sentencing CPD VIII Confiscation [empty] CPD IX Appeal 34A Appeals to the Crown Court CPD IX Appeal 39A Appeals against conviction and sentence – the provision of notice to the prosecution CPD IX Appeal 39B Listing of appeals against conviction and sentence in the Court of Appeal Criminal Division (CACD) CPD IX Appeal 39C Appeal notices containing grounds of appeal CPD IX Appeal 39D Respondents’ notices CPD IX Appeal 39E Loss of time CPD IX Appeal 39F Skeleton arguments CPD IX Appeal 39G Criminal Appeal Office summaries CPD IX Appeal 44A References to the European Court of Justice CPD X Costs [Costs Practice Direction] CPD XI Other proceedings 47A Investigation orders and warrants CPD XI Other proceedings 48A Contempt in the face of the magistrates’ court CPD XI Other proceedings 50A Extradition: General matters CPD XI Other proceedings 50B Management of the Appeal CPD XI Other proceedings 50C Extradition: Representation Orders CPD XI Other proceedings 50D Extradition: Applications CPD XI Other proceedings 50E Extradition: Court Papers CPD XI Other proceedings 50F Extradition: Consequences of non compliance with directions CPD XII General application A Court dress CPD XII General application B Modes of address and titles of judges and magistrates CPD XII General application C Availability of judgments given in the Court of Appeal and the High Court CPD XII General application D Citation of authority and provision of copies of judgments to the Court CPD XII General application E Preparation of judgments: neutral citation CPD XII General application F Citation of Hansard CPD XIII Listing A Judicial responsibility and key principles CPD XIII Listing B Classification CPD XIII Listing C Referral of cases in the Crown Court to the Resident Judge and to the Presiding Judges CPD XIII Listing D Authorisation of Judges CPD XIII Listing E Allocation of business within the Crown Court CPD XIII Listing F Listing of trials, Custody Time Limits and transfer of cases CPD XIII Listing G Listing of hearings other than trials CPD XIII Listing Annex 1: General principles for the deployment of the judiciary in the magistrates’ court CPD XIII Listing Annex 2: Sexual offences in the youth court CPD XIII Listing Annex 3: Cases involving very large fines in the magistrates’ courts CPD XIII Listing Annex 4: Case management of terrorism cases CPD XIII Listing Annex 5: Management of cases from the Organised Crime Division of the Crown Prosecution Service CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION I GENERAL MATTERS CPD I General matters A A.1 The Lord Chief Justice has power, including power under section 74 of the Courts Act 2003 and Part 1 of Schedule 2 to the Constitutional Reform Act 2005 , to give directions as to the practice and procedure of the criminal courts. The following directions are given accordingly. A.2 These Practice Directions replace the Criminal Practice Directions given on 7 th October, 2013 [2013] EWCA Crim 1631 ; [2013] 1 WLR 3164 as amended by the Directions given on (i) 10 th December, 2013 [2013] EWCA Crim 2 328; [2014] 1 WLR 35 , (ii) 23 rd July, 2014 [2014] EWCA Crim 1569 ; [2014] 1 WLR 3001 , (iii) 18 th March, 2015 [2015] EWCA Crim 430 ; [2015] 1 WLR 1643 and (iv) 16 th July, 2015 [2015] EWCA Crim 1253 ; [2015] 1 WLR 3582 . A.3 Annexes D and E to the Consolidated Criminal Practice Direction of 8 th July, 2002, [2002] 1 W.L.R. 2870 ; [2002] 2 Cr. App. R. 35, as amended, which set out forms for use in connection with the Criminal Procedure Rules, remain in force. See also paragraph I 5A of these Practice Directions. A.4 These Practice Directions supplement many, but not all, Parts of the Criminal Procedure Rules, and include other directions about practice and procedure in the courts to which they apply. They are to be known as the Criminal Practice Directions 2015. They come into force on 5 th October, 2015. They apply to all cases in all the criminal courts of England and Wales from that date. A.5 Consequent on the rearrangement of the Criminal Procedure Rules in the Criminal Procedure Rules 2015, S.I. 2015/1490: (a) the content of these Practice Directions is arranged to correspond. Within each division of these Directions the paragraphs are numbered to correspond with the associated Part of the Criminal Procedure Rules 2015. Compared with the Criminal Practice Directions given in 2013, as amended, the numbering and content of some divisions is amended consequentially, as shown in this table: Derivations Divisions of 2015 Directions Divisions of 2013 Directions I General matters I General matters; II Preliminary proceedings 16A – C II Preliminary proceedings II Preliminary proceedings 9A, 10A, 14A – B III Custody and bail III Custody and bail IV Disclosure IV Disclosure V Evidence V Evidence VI Trial VI Trial VII Sentencing VII Sentencing VIII Confiscation and related proceedings [empty] VIII Confiscation and related proceedings [empty] IX Appeal X Appeal X Costs [Criminal Costs Practice Direction] XI Costs [Criminal Costs Practice Direction] XI Other proceedings II Preliminary proceedings 6A, 17A – F; IX Contempt of court XII General application XII General application XIII Listing XIII Listing (b) the text of these Practice Directions is amended: (i) to bring up to date the cross-references to the Criminal Procedure Rules and to other paragraphs of these Directions which that text contains, and (ii) to adopt the abbreviation of references to the Criminal Procedure Rules (‘CrimPR’) for which rule 2.3(2) of the Criminal Procedure Rules 2015 provides. A.6 In all other respects, the content of the Criminal Practice Directions 2015 reproduces that of the Criminal Practice Directions 2013, as amended. CrimPR Part 1 The overriding objective CPD I General matters 1A: THE OVERRIDING OBJECTIVE 1A.1 The presumption of innocence and an adversarial process are essential features of English and Welsh legal tradition and of the defendant’s right to a fair trial. But it is no part of a fair trial that questions of guilt and innocence should be determined by procedural manoeuvres. On the contrary, fairness is best served when the issues between the parties are identified as early and as clearly as possible. As Lord Justice Auld noted, a criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. 1A.2 Further, it is not just for a party to obstruct or delay the preparation of a case for trial in order to secure some perceived procedural advantage, or to take unfair advantage of a mistake by someone else. If courts allow that to happen it damages public confidence in criminal justice. The Rules and the Practice Directions, taken together, make it clear that courts must not allow it to happen. CrimPR Part 3 Case management CPD I General matters 3A: CASE MANAGEMENT 3A.1 CrimPR 1.1(2)(e) requires that cases be dealt with efficiently and expeditiously. CrimPR 3.2 requires the court to further the overriding objective by actively managing the case, for example: a) When dealing with an offence which is triable only on indictment the court must ask the defendant whether he or she intends to plead guilty at the Crown Court (CrimPR 9.7(5)); b) On a guilty plea, the court must pass sentence at the earliest opportunity, in accordance with CrimPR 24.11(9)(a) (magistrates’ courts) and 25.16(7)(a) (the Crown Court). 3A.2 Given these duties, magistrates’ courts and the Crown Court therefore will proceed as described in paragraphs 3A.3 to 3A.28 below. The parties will be expected to have prepared in accordance with CrimPR 3.3(1) to avoid unnecessary and wasted hearings. They will be expected to have communicated with each other by the time of the first hearing; to report to the court on that communication at the first hearing; and to continue thereafter to communicate with each other and with the court officer, in accordance with CrimPR 3.3(2). 3A.3 There is a Preparation for Effective Trial form for use in the magistrates’ courts, and a Plea and Trial Preparation Hearing form for use in the Crown Court, each of which must be used as appropriate in connection with CrimPR Part 3: see paragraph 5A.2 of these Practice Directions. Versions of those forms in pdf and Word, together with guidance notes, are available on the Criminal Procedure Rules pages of the Ministry of Justice website. Case progression and trial preparation in magistrates’ courts 3A.4 CrimPR 8.3 applies in all cases and requires the prosecutor to serve: i. a summary of the circumstances of the offence; ii. any account given by the defendant in interview, whether contained in that summary or in another document; iii. any written witness statement or exhibit that the prosecutor then has available and considers material to plea or to the allocation of the case for trial or sentence; iv. a list of the defendant’s criminal record, if any; and v. any available statement of the effect of the offence on a victim, a victim’s family or others. The details must include sufficient information to allow the defendant and the court at the first hearing to take an informed view: i. on plea; ii. on venue for trial (if applicable); iii. for the purposes of case management; or iv. for the purposes of sentencing (including committal for sentence, if applicable). Defendant in custody 3A.5 If the defendant has been detained in custody after being charged with an offence which is indictable only or triable either way, at the first hearing a magistrates’ court will proceed at once with the allocation of the case for trial, where appropriate, and, if so required, with the sending of the defendant to the Crown Court for trial. The court will be expected to ask for and record any indication of plea and issues for trial to assist the Crown Court. 3A.6 If the offence charged is triable only summarily, or if at that hearing the case is allocated for summary trial, the court will forthwith give such directions as are necessary, either (on a guilty plea) to prepare for sentencing, or for a trial. Defendant on bail 3A.7 If the defendant has been released on bail after being charged, the case must be listed for the first hearing 14 days after charge, or the next available court date thereafter when the prosecutor anticipates a guilty plea which is likely to be sentenced in the magistrates’ court. In cases where there is an anticipated not guilty plea or the case is likely to be sent or committed to the Crown Court for either trial or sentence, then it must be listed for the first hearing 28 days after charge or the next available court date thereafter. Guilty plea in the magistrates’ courts 3A.8 Where a defendant pleads guilty or indicates a guilty plea in a magistrates’ court the court should consider whether a pre-sentence report – a stand down report if possible – is necessary. Guilty plea in the Crown Court 3A.9 Where a magistrates’ court is considering committal for sentence or the defendant has indicated an intention to plead guilty in a matter which is to be sent to the Crown Court, the magistrates’ court should request the preparation of a pre-sentence report for the Crown Court’s use if the magistrates’ court considers that: (a) there is a realistic alternative to a custodial sentence; or (b) the defendant may satisfy the criteria for classification as a dangerous offender; or (c) there is some other appropriate reason for doing so. 3A.10 When a magistrates’ court sends a case to the Crown Court for trial and the defendant indicates an intention to plead guilty at the Crown Court, then that magistrates’ court must set a date for a Plea and Trial Preparation Hearing at the Crown Court, in accordance with CrimPR 9.7(5)(a)(i). Case sent for Crown Court trial: no indication of guilty plea 3A.11 In any case sent to the Crown Court for trial, other than one in which the defendant indicates an intention to plead guilty, the magistrates’ court must set a date for a Plea and Trial Preparation Hearing, in accordance with CrimPR 9.7(5)(a)(ii). The Plea and Trial Preparation Hearing must be held within 28 days of sending, unless the standard directions of the Presiding Judges of the circuit direct otherwise. Paragraph 3A.16 below additionally applies to the arrangements for such hearings. A magistrates’ court may give other directions appropriate to the needs of the case, in accordance with CrimPR 3.5(3), and in accordance with any standard directions issued by the Presiding Judges of the circuit. Defendant on bail: anticipated not guilty plea 3A.12 Where the defendant has been released on bail after being charged, and where the prosecutor does not anticipate a guilty plea at the first hearing in a magistrates’ court, then it is essential that the initial details of the prosecution case that are provided for that first hearing are sufficient to assist the court, in order to identify the real issues and to give appropriate directions for an effective trial (regardless of whether the trial is to be heard in the magistrates’ court or the Crown Court). In these circumstances, unless there is good reason not to do so, the prosecution should make available the following material in advance of the first hearing in the magistrates’ court: (a) A summary of the circumstances of the offence(s) including a summary of any account given by the defendant in interview; (b) Statements and exhibits that the prosecution has identified as being of importance for the purpose of plea or initial case management, including any relevant CCTV that would be relied upon at trial and any Streamlined Forensic Report; (c) Details of witness availability, as far as they are known at that hearing; (d) Defendant’s criminal record; (e) Victim Personal Statements if provided; (f) An indication of any medical or other expert evidence that the prosecution is likely to adduce in relation to a victim or the defendant; (g) Any information as to special measures, bad character or hearsay, where applicable. 3A.13 In addition to the material required by CrimPR Part 8, the information required by the Preparation for Effective Trial form must be available to be submitted at the first hearing, and the parties must complete that form, in accordance with the guidance published with it. Where there is to be a contested trial in a magistrates’ court, that form includes directions and a timetable that will apply in every case unless the court otherwise orders. 3A.14 Nothing in paragraph 3A.12-3A.13 shall preclude the court from taking a plea pursuant to CrimPR 3.9(2)(b) at the first hearing and for the court to case manage as far as practicable under Part 3 CrimPR. Exercise of magistrates’ court’s powers 3A.15 In accordance with CrimPR 9.1, sections 49 , 51(13) and 51A(11) of the Crime and Disorder Act 1998 , and sections 17 E, 18(5) and 24D of the Magistrates’ Courts Act 1980 a single justice can: a) allocate and send for trial; b) take an indication of a guilty plea (but not pass sentence); c) take a not guilty plea and give directions for the preparation of trial including: i. timetable for the proceedings; ii. the attendance of the parties; iii. the service of documents; iv. the manner in which evidence is to be given. Case progression and trial preparation in the Crown Court Plea and Trial Preparation Hearing 3A.16 In a case in which a magistrates’ court has directed a Plea and Trial Preparation Hearing, the period which elapses between sending for trial and the date of that hearing must be consistent within each circuit. In every case, the time allowed for the conduct of the Plea and Trial Preparation Hearing must be sufficient for effective trial preparation. It is expected in every case that an indictment will be lodged at least 7 days in advance of the hearing. Please see the Note to the Practice Direction. 3A.17 In a case in which the defendant, not having done so before, indicates an intention to plead guilty to his representative after being sent for trial but before the Plea and Trial Preparation Hearing, the defence representative will notify the Crown Court and the prosecution forthwith. The court will ensure there is sufficient time at the Plea and Trial Preparation Hearing for sentence and a Judge should at once request the preparation of a pre-sentence report if it appears to the court that either: (a) there is a realistic alternative to a custodial sentence; or (b) the defendant may satisfy the criteria for classification as a dangerous offender; or (c) there is some other appropriate reason for doing so. 3A.18 If at the Plea and Trial Preparation Hearing the defendant pleads guilty and no pre-sentence report has been prepared, if possible the court should obtain a stand down report. 3A.19 Where the defendant was remanded in custody after being charged and was sent for trial without initial details of the prosecution case having been served, then at least 7 days before the Plea and Trial Preparation Hearing the prosecutor should serve, as a minimum, the material identified in paragraph 3A.12 above. If at the Plea and Trial Preparation Hearing the defendant does not plead guilty, the court will be expected to identify the issues in the case and give appropriate directions for an effective trial. Please see the Note to the Practice Direction. 3A.20 At the Plea and Trial Preparation Hearing, in addition to the material required by paragraph 3A.12 above, the prosecutor must serve sufficient evidence to enable the court to case manage effectively without the need for a further case management hearing, unless the case falls within paragraph 3A.21. In addition, the information required by the Plea and Trial Preparation Hearing form must be available to the court at that hearing, and it must have been discussed between the parties in advance. The prosecutor must provide details of the availability of likely prosecution witnesses so that a trial date can immediately be arranged if the defendant does not plead guilty. Further case management hearing 3A.21 In accordance with CrimPR 3.13(1)(c), after the Plea and Trial Preparation Hearing there will be no further case management hearing before the trial unless: (i) a condition listed in that rule is met; and (ii) the court so directs, in order to further the overriding objective. The directions to be given at the Plea and Trial Preparation Hearing therefore may include a direction for a further case management hearing, but usually will do so only in one of the following cases: (a) Class 1 cases; (b) Class 2 cases which carry a maximum penalty of 10 years or more; (c) cases involving death by driving (whether dangerous or careless), or death in the workplace; (d) cases involving a vulnerable witness; (e) cases in which the defendant is a child or otherwise under a disability, or requires special assistance; (f) cases in which there is a corporate or unrepresented defendant; (g) cases in which the expected trial length is such that a further case management hearing is desirable and any case in which the trial is likely to last longer than four weeks; (h) cases in which expert evidence is to be introduced; (i) cases in which a party requests a hearing to enter a plea; (j) cases in which an application to dismiss or stay has been made; (k) cases in which arraignment has not taken place, whether because of an issue relating to fitness to plead, or abuse of process or sufficiency of evidence, or for any other reason; (l) cases in which there are likely to be linked criminal and care directions in accordance with the 2013 Protocol. 3A.22 If a further case management hearing is directed, a defendant in custody will not usually be expected to attend in person, unless the court otherwise directs. Compliance hearing 3A.23 If a party fails to comply with a case management direction, that party may be required to attend the court to explain the failure. Unless the court otherwise directs a defendant in custody will not usually be expected to attend. See paragraph 3A.26-3A.28 below. Conduct of case progression hearings 3A.24 As far as possible, case progression should be managed without a hearing in the courtroom, using electronic communication in accordance with CrimPR 3.5(2)(d). Court staff should be nominated to conduct case progression as part of their role, in accordance with CrimPR 3.4(2). To aid effective communication the prosecution and defence representative should notify the court and provide details of who shall be dealing with the case at the earliest opportunity. Completion of Effective Trial Monitoring form 3A.25 It is imperative that the Effective Trial Monitoring form (as devised and issued by Her Majesty’s Courts and Tribunals Service) is accurately completed by the parties for all cases that have been listed for trial. Advocates must engage with the process by providing the relevant details and completing the form. Compliance courts 3A.26 To ensure effective compliance with directions of the courts made in accordance with the Criminal Procedure Rules and the overriding objective, courts should maintain a record whenever a party to the proceedings has failed to comply with a direction made by the court. The parties may have to attend a hearing to explain any lack of compliance. 3A.27 These hearings may be conducted by live link facilities or via other electronic means, as the court may direct. 3A.28 It will be for the Presiding Judges, Resident Judge and Justices’ Clerks to decide locally how often compliance courts should be held, depending on the scale and nature of the problem at each court centre. Note to the Practice Direction In 3A.16 and 3A.19 the reference to “at least 7 days” in advance of the hearing is necessitated by the fact that, for the time being, different circuits have different timescales for the Plea and Trial Preparation Hearing. Had this not been so, the paragraphs would have been drafted forward from the date of sending rather than backwards from the date of the Plea and Trial Preparation Hearing. CPD I General matters 3B: Pagination and Indexing of Served Evidence 3B.1 The following directions apply to matters before the Crown Court, where (a) there is an application to prefer a bill of indictment in relation to the case; (b) a person is sent for trial under section 51 of the Crime and Disorder Act 1998 (sending cases to the Crown Court), to the service of copies of the documents containing the evidence on which the charge or charges are based under Paragraph 1 of Schedule 3 to that Act ; or (c) a defendant wishes to serve evidence. 3B.2 A party who serves documentary evidence in the Crown Court should: (a) paginate each page in any bundle of statements and exhibits sequentially; (b) provide an index to each bundle of statements produced including the following information: i. the name of the case; ii. the author of each statement; iii. the start page number of the witness statement; iv. the end page number of the witness statement. (c) provide an index to each bundle of documentary and pictorial exhibits produced, including the following information: i. the name of the case ii. the exhibit reference; iii. a short description of the exhibit; iv. the start page number of the exhibit; v. the end page number of the exhibit; vi. where possible, the name of the person producing the exhibit should be added. 3B.3 Where additional documentary evidence is served, a party should paginate following on from the last page of the previous bundle or in a logical and sequential manner. A party should also provide notification of service of any amended index. 3B.4 The prosecution must ensure that the running total of the pages of prosecution evidence is easily identifiable on the most recent served bundle of prosecution evidence. 3B.5 For the purposes of these directions, the number of pages of prosecution evidence served on the court includes all (a) witness statements; (b) documentary and pictorial exhibits; (c) records of interviews with the defendant; and (d) records of interviews with other defendants which form part of the served prosecution documents or which are included in any notice of additional evidence, but does not include any document provided on CD-ROM or by other means of electronic communication. CPD I General matters 3C: ABUSE OF PROCESS STAY APPLICATIONS 3C.1 In all cases where a defendant in the Crown Court proposes to make an application to stay an indictment on the grounds of abuse of process, written notice of such application must be given to the prosecuting authority and to any co-defendant as soon as practicable after the defendant becomes aware of the grounds for doing so and not later than 14 days before the date fixed or warned for trial (“the relevant date”). Such notice must: (a) give the name of the case and the indictment number; (b) state the fixed date or the warned date as appropriate; (c) specify the nature of the application; (d) set out in numbered sub-paragraphs the grounds upon which the application is to be made; (e) be copied to the chief listing officer at the court centre where the case is due to be heard. 3C.2 Any co-defendant who wishes to make a like application must give a like notice not later than seven days before the relevant date, setting out any additional grounds relied upon. 3C.3 In relation to such applications, the following automatic directions shall apply: (a) the advocate for the applicant(s) must lodge with the court and serve on all other parties a skeleton argument in support of the application, at least five clear working days before the relevant date. If reference is to be made to any document not in the existing trial documents, a paginated and indexed bundle of such documents is to be provided with the skeleton argument; (b) the advocate for the prosecution must lodge with the court and serve on all other parties a responsive skeleton argument at least two clear working days before the relevant date, together with a supplementary bundle if appropriate. 3C.4 All skeleton arguments must specify any propositions of law to be advanced (together with the authorities relied upon in support, with paragraph references to passages relied upon) and, where appropriate, include a chronology of events and a list of dramatis personae. In all instances where reference is made to a document, the reference in the trial documents or supplementary bundle is to be given. 3C.5 The above time limits are minimum time limits. In appropriate cases, the court will order longer lead times. To this end, in all cases where defence advocates are, at the time of the preliminary hearing or as soon as practicable after the case has been sent, considering the possibility of an abuse of process application, this must be raised with the judge dealing with the matter, who will order a different timetable if appropriate, and may wish, in any event, to give additional directions about the conduct of the application. If the trial judge has not been identified, the matter should be raised with the Resident Judge. CPD I General matters 3D: VULNERABLE PEOPLE IN THE COURTS 3D.1 In respect of eligibility for special measures, ‘vulnerable’ and ‘intimidated’ witnesses are defined in sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999 (as amended by the Coroners and Justice Act 2009 ); ‘vulnerable’ includes those under 18 years of age and people with a mental disorder or learning disability; a physical disorder or disability; or who are likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case. 3D.2 However, many other people giving evidence in a criminal case, whether as a witness or defendant, may require assistance: the court is required to take ‘every reasonable step’ to encourage and facilitate the attendance of witnesses and to facilitate the participation of any person, including the defendant (CrimPR 3.9(3)(a) and (b)). This includes enabling a witness or defendant to give their best evidence, and enabling a defendant to comprehend the proceedings and engage fully with his or her defence. The pre-trial and trial process should, so far as necessary, be adapted to meet those ends. Regard should be had to the welfare of a young defendant as required by section 44 of the Children and Young Persons Act 1933 , and generally to Parts 1 and 3 of the Criminal Procedure Rules (the overriding objective and the court’s powers of case management). 3D.3 Under Part 3 of the Rules, the court must identify the needs of witnesses at an early stage (CrimPR 3.2(2)(b)) and may require the parties to identify arrangements to facilitate the giving of evidence and participation in the trial (CrimPR 3.11(c)(iv) and (v)). There are various statutory special measures that the court may utilise to assist a witness in giving evidence. CrimPR Part 18 gives the procedures to be followed. Courts should note the ‘primary rule’ which requires the court to give a direction for a special measure to assist a child witness or qualifying witness and that in such cases an application to the court is not required (CrimPR 18.9). 3D.4 Court of Appeal decisions on this subject include a judgment from the Lord Chief Justice, Lord Judge in R v Cox [2012] EWCA Crim 549 , [2012] 2 Cr. App. R. 6; R v Wills [2011] EWCA Crim 1938 , [2012] 1 Cr. App. R. 2; and R v E [2011] EWCA Crim 3028 , [2012] Crim L.R. 563. 3D.5 In R v Wills , the Court endorsed the approach taken by the report of the Advocacy Training Council (ATC) ‘Raising the Bar: the Handling of Vulnerable Witnesses, Victims and Defendants in Court’ (2011). The report includes and recommends the use of ‘toolkits’ to assist advocates as they prepare to question vulnerable people at court: http://www.advocacytrainingcouncil.org/vulnerable-witnesses/raising-the-bar 3D.6 Further toolkits are available through the Advocate’s Gateway which is managed by the ATC’s Management Committee: http://www.theadvocatesgateway.org/ 3D.7 These toolkits represent best practice. Advocates should consult and follow the relevant guidance whenever they prepare to question a young or otherwise vulnerable witness or defendant. Judges may find it helpful to refer advocates to this material and to use the toolkits in case management. 3D.8 ‘Achieving Best Evidence in Criminal Proceedings’ (Ministry of Justice 2011) describes best practice in preparation for the investigative interview and trial: http://www.cps.gov.uk/publications/docs/best_evidence_in_criminal_proceedings.pdf CPD I General matters 3E: GROUND RULES HEARINGS TO PLAN THE QUESTIONING OF A VULNERABLE WITNESS OR DEFENDANT 3E.1 The judiciary is responsible for controlling questioning. Over-rigorous or repetitive cross-examination of a child or vulnerable witness should be stopped. Intervention by the judge, magistrates or intermediary (if any) is minimised if questioning, taking account of the individual’s communication needs, is discussed in advance and ground rules are agreed and adhered to. 3E.2 Discussion of ground rules is required in all intermediary trials where they must be discussed between the judge or magistrates, advocates and intermediary before the witness gives evidence. The intermediary must be present but is not required to take the oath (the intermediary’s declaration is made just before the witness gives evidence). 3E.3 Discussion of ground rules is good practice, even if no intermediary is used, in all young witness cases and in other cases where a witness or defendant has communication needs. Discussion before the day of trial is preferable to give advocates time to adapt their questions to the witness’s needs. It may be helpful for a trial practice note of boundaries to be created at the end of the discussion. The judge may use such a document in ensuring that the agreed ground rules are complied with. 3E.4 All witnesses, including the defendant and defence witnesses, should be enabled to give the best evidence they can. In relation to young and/or vulnerable people, this may mean departing radically from traditional cross-examination. The form and extent of appropriate cross-examination will vary from case to case. For adult non vulnerable witnesses an advocate will usually put his case so that the witness will have the opportunity of commenting upon it and/or answering it. When the witness is young or otherwise vulnerable, the court may dispense with the normal practice and impose restrictions on the advocate ‘putting his case’ where there is a risk of a young or otherwise vulnerable witness failing to understand, becoming distressed or acquiescing to leading questions. Where limitations on questioning are necessary and appropriate, they must be clearly defined. The judge has a duty to ensure that they are complied with and should explain them to the jury and the reasons for them. If the advocate fails to comply with the limitations, the judge should give relevant directions to the jury when that occurs and prevent further questioning that does not comply with the ground rules settled upon in advance. Instead of commenting on inconsistencies during cross-examination, following discussion between the judge and the advocates, the advocate or judge may point out important inconsistencies after (instead of during) the witness’s evidence. The judge should also remind the jury of these during summing up. The judge should be alert to alleged inconsistencies that are not in fact inconsistent, or are trivial. 3E.5 If there is more than one defendant, the judge should not permit each advocate to repeat the questioning of a vulnerable witness. In advance of the trial, the advocates should divide the topics between them, with the advocate for the first defendant leading the questioning, and the advocate(s) for the other defendant(s) asking only ancillary questions relevant to their client’s case, without repeating the questioning that has already taken place on behalf of the other defendant(s). 3E.6 In particular in a trial of a sexual offence, ‘body maps’ should be provided for the witness’ use. If the witness needs to indicate a part of the body, the advocate should ask the witness to point to the relevant part on the body map. In sex cases, judges should not permit advocates to ask the witness to point to a part of the witness’ own body. Similarly, photographs of the witness’ body should not be shown around the court while the witness is giving evidence. CPD I General matters 3F: INTERMEDIARIES 3F.1 Intermediaries are communication specialists (not supporters or expert witnesses) whose role is to facilitate communication between the witness and the court, including the advocates. Intermediaries are independent of the parties and owe their duty to the court (see Registered Intermediaries Procedural Guidance Manual, Ministry of Justice, 2012): http://www.cps.gov.uk/publications/docs/RI_ProceduralGuidanceManual_2012.pdf 3F.2 Intermediaries for witnesses, with the exception of defendants, are one of the special measures available under the Youth Justice and Criminal Evidence Act 1999 and Part 18 of the Criminal Procedure Rules. 3F.3 There is currently no statutory provision in force for intermediaries for defendants. Section 104 of the Coroners and Justice Act 2009 (not yet implemented) creates a new section 33 BA of the Youth Justice and Criminal Evidence Act 1999 . This will provide an intermediary to an eligible defendant only while giving evidence. A court may use its inherent powers to appoint an intermediary to assist the defendant’s communication at trial (either solely when giving evidence or throughout the trial) and, where necessary, in preparation for trial: R (AS) v Great Yarmouth Youth Court [2011] EWHC 2059 (Admin) , [2012] Crim L.R. 478; R v H [2003] EWCA Crim 1208 , Times, April 15, 2003; R (C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) , [2010] 1 All E.R. 735 ; R (D) v Camberwell Green Youth Court , [2005] UKHL 4 , [2005] 1 W.L.R. 393 , [2005] 2 Cr. App. R. 1; R (TP) v West London Youth Court [2005] EWHC 2583 (Admin) , [2006] 1 W.L.R. 1219 , [2006] 1 Cr. App. R. 25. 3F.4 Ministry of Justice regulation only applies to Registered Intermediaries appointed for prosecution and defence witnesses through its Witness Intermediary Scheme. All defendant intermediaries – professionally qualified or otherwise – are ‘non-registered’ in this context, even though they may be a Registered Intermediary in respect of witnesses. Even where a judge concludes he has a common law power to direct the provision of an intermediary, the direction will be ineffective if no intermediary can be identified for whom funding would be available. 3F.5 Assessment should be considered if a child or young person under 18 seems unlikely to be able to recognise a problematic question or, even if able to do so, may be reluctant to say so to a questioner in a position of authority. Studies suggest that the majority of young witnesses, across all age groups, fall into one or other of these categories. For children aged 11 years and under in particular, there should be a presumption that an intermediary assessment is appropriate. Once the child’s individual requirements are known and discussed at the ground rules hearing, the intermediary may agree that his or her presence is not needed for the trial. 3F.6 In the absence of an intermediary for the defendant, t rials should not be stayed where an asserted unfairness can be met by the trial judge adapting the trial process with appropriate and necessary caution ( R v Cox [2012] EWCA Crim 549 , [2012] 2 Cr. App. R. 6). This includes setting ground rules for all witness testimony to help the defendant follow proceedings; for example, directing that all witness evidence be adduced by simple questions, with witnesses asked to answer in short sentences; and short periods of evidence, followed by breaks to enable the defendant to relax and for counsel to summarise the evidence for him and to take further instructions. Photographs of court facilities 3F.7 Resident Judges in the Crown Court or the Chief Clerk or other responsible person in the magistrates’ courts should, in consultation with HMCTS managers responsible for court security matters, develop a policy to govern under what circumstances photographs or other visual recordings may be made of court facilities, such as a live link room, to assist vulnerable or child witnesses to familiarise themselves with the setting, so as to be enabled to give their best evidence. For example, a photograph may provide a helpful reminder to a witness whose court visit has taken place sometime earlier. Resident Judges should tend to permit photographs to be taken for this purpose by intermediaries or supporters, subject to whatever restrictions the Resident Judge or responsible person considers to be appropriate, having regard to the security requirements of the court. CPD I General matters 3G: VULNERABLE DEFENDANTS Before the trial, sentencing or appeal 3G.1 If a vulnerable defendant, especially one who is young, is to be tried jointly with one who is not, the court should consider at the plea and case management hearing, or at a case management hearing in a magistrates’ court, whether the vulnerable defendant should be tried on his own, but should only so order if satisfied that a fair trial cannot be achieved by use of appropriate special measures or other support for the defendant . If a vulnerable defendant is tried jointly with one who is not, the court should consider whether any of the modifications set out in this direction should apply in the circumstances of the joint trial and, so far as practicable, make orders to give effect to any such modifications. 3G.2 It may be appropriate to arrange that a vulnerable defendant should visit, out of court hours and before the trial, sentencing or appeal hearing, the courtroom in which that hearing is to take place so that he or she can familiarise him or herself with it. 3G.3 Where an intermediary is being used to help the defendant to communicate at court, the intermediary should accompany the defendant on his or her pre-trial visit. The visit will enable the defendant to familiarise him or herself with the layout of the court, and may include matters such as: where the defendant will sit, either in the dock or otherwise; court officials (what their roles are and where they sit); who else might be in the court, for example those in the public gallery and press box; the location of the witness box; basic court procedure; and the facilities available in the court. 3G.4 If the defendant’s use of the live link is being considered, he or she should have an opportunity to have a practice session. 3G.5 If any case against a vulnerable defendant has attracted or may attract widespread public or media interest, the assistance of the police should be enlisted to try and ensure that the defendant is not, when attending the court, exposed to intimidation, vilification or abuse. Section 41 of the Criminal Justice Act 1925 prohibits the taking of photographs of defendants and witnesses (among others) in the court building or in its precincts, or when entering or leaving those precincts. A direction reminding media representatives of the prohibition may be appropriate. The court should also be ready at this stage, if it has not already done so, where relevant to make a reporting restriction under section 39 of the Children and Young Persons Act 1933 or, on an appeal to the Crown Court from a youth court, to remind media representatives of the application of section 49 of that Act . 3G.6 The provisions of the Practice Direction accompanying Part 6 should be followed. The trial, sentencing or appeal hearing 3G.7 Subject to the need for appropriate security arrangements, the proceedings should, if practicable, be held in a courtroom in which all the participants are on the same or almost the same level. 3G.8 Subject again to the need for appropriate security arrangements, a vulnerable defendant, especially if he is young, should normally, if he wishes, be free to sit with members of his family or others in a like relationship, and with some other suitable supporting adult such as a social worker, and in a place which permits easy, informal communication with his legal representatives. The court should ensure that a suitable supporting adult is available throughout the course of the proceedings. 3G.9 It is essential that at the beginning of the proceedings, the court should ensure that what is to take place has been explained to a vulnerable defendant in terms he or she can understand and, at trial in the Crown Court, it should ensure in particular that the role of the jury has been explained. It should remind those representing the vulnerable defendant and the supporting adult of their responsibility to explain each step as it takes place and, at trial, explain the possible consequences of a guilty verdict and credit for a guilty plea. The court should also remind any intermediary of the responsibility to ensure that the vulnerable defendant has understood the explanations given to him/her. Throughout the trial the court should continue to ensure, by any appropriate means, that the defendant understands what is happening and what has been said by those on the bench, the advocates and witnesses. 3G.10 A trial should be conducted according to a timetable which takes full account of a vulnerable defendant’s ability to concentrate. Frequent and regular breaks will often be appropriate. The court should ensure, so far as practicable, that the whole trial is conducted in clear language that the defendant can understand and that evidence in chief and cross-examination are conducted using questions that are short and clear. The conclusions of the ‘ground rules’ hearing should be followed, and advocates should use and follow the ‘toolkits’ as discussed above. 3G.11 A vulnerable defendant who wishes to give evidence by live link, in accordance with section 33 A of the Youth Justice and Criminal Evidence Act 1999 , may apply for a direction to that effect; the procedure in CrimPR 18.14 to 18.17 should be followed. Before making such a direction, the court must be satisfied that it is in the interests of justice to do so and that the use of a live link would enable the defendant to participate more effectively as a witness in the proceedings. The direction will need to deal with the practical arrangements to be made, including the identity of the person or persons who will accompany him or her. 3G.12 In the Crown Court, the judge should consider whether robes and wigs should be worn, and should take account of the wishes of both a vulnerable defendant and any vulnerable witness. It is generally desirable that those responsible for the security of a vulnerable defendant who is in custody, especially if he or she is young, should not be in uniform, and that there should be no recognisable police presence in the courtroom save for good reason. 3G.13 The court should be prepared to restrict attendance by members of the public in the courtroom to a small number, perhaps limited to those with an immediate and direct interest in the outcome. The court should rule on any challenged claim to attend. However, facilities for reporting the proceedings (subject to any restrictions under section 39 or 49 of the Children and Young Persons Act 1933 ) must be provided. The court may restrict the number of reporters attending in the courtroom to such number as is judged practicable and desirable. In ruling on any challenged claim to attend in the courtroom for the purpose of reporting, the court should be mindful of the public’s general right to be informed about the administration of justice. 3G.14 Where it has been decided to limit access to the courtroom, whether by reporters or generally, arrangements should be made for the proceedings to be relayed, audibly and if possible visually, to another room in the same court complex to which the media and the public have access if it appears that there will be a need for such additional facilities. Those making use of such a facility should be reminded that it is to be treated as an extension of the courtroom and that they are required to conduct themselves accordingly. CPD I General matters 3H: WALES AND THE WELSH LANGUAGE: DEVOLUTION ISSUES 3H.1 These are the subject of Practice Direction: (Supreme Court) (Devolution Issues) [1999] 1 WLR 1592 ; [1999] 3 All ER 466 ; [1999] 2 Cr App R 486 , to which reference should be made. CPD I General matters 3J: WALES AND THE WELSH LANGUAGE: APPLICATIONS FOR EVIDENCE TO BE GIVEN IN WELSH 3J.1 If a defendant in a court in England asks to give or call evidence in the Welsh language, the case should not be transferred to Wales. In ordinary circumstances, interpreters can be provided on request. CPD I General matters 3K: WALES AND THE WELSH LANGUAGE: USE OF THE WELSH LANGUAGE IN COURTS IN WALES 3K.1 The purpose of this direction is to reflect the principle of the Welsh Language Act 1993 that, in the administration of justice in Wales, the English and Welsh languages should be treated on a basis of equality. General 3K.2 It is the responsibility of the legal representatives in every case in which the Welsh language may be used by any witness or party, or in any document which may be placed before the court, to inform the court of that fact, so that appropriate arrangements can be made for the listing of the case. 3K.3 Any party or witness is entitled to use Welsh in a magistrates’ court in Wales without giving prior notice. Arrangements will be made for hearing such cases in accordance with the ‘Magistrates’ Courts’ Protocol for Listing Cases where the Welsh Language is used’ (January 2008) which is available on the Judiciary’s website: http://www.judiciary.gov.uk/NR/exeres/57AD4763-F265-47B9-8A35-0442E08160E6 . See also CrimPR 24.14. 3K.4 If the possible use of the Welsh language is known at the time of sending or appeal to the Crown Court, the court should be informed immediately after sending or when the notice of appeal is lodged. Otherwise, the court should be informed as soon as the possible use of the Welsh language becomes known. 3K.5 If costs are incurred as a result of failure to comply with these directions, a wasted costs order may be made against the defaulting party and / or his legal representatives. 3K.6 The law does not permit the selection of jurors in a manner which enables the court to discover whether a juror does or does not speak Welsh, or to secure a jury whose members are bilingual, to try a case in which the Welsh language may be used. Preliminary and plea and case management hearings 3K.7 An advocate in a case in which the Welsh language may be used must raise that matter at the preliminary and/or the plea and case management hearing and endorse details of it on the advocates’ questionnaire, so that appropriate directions may be given for the progress of the case. Listing 3K.8 The listing officer, in consultation with the resident judge, should ensure that a case in which the Welsh language may be used is listed (a) wherever practicable before a Welsh speaking judge, and (b) in a court in Wales with simultaneous translation facilities. Interpreters 3K.9 Whenever an interpreter is needed to translate evidence from English into Welsh or from Welsh into English, the court listing officer in whose court the case is to be heard shall contact the Welsh Language Unit who will ensure the attendance of an accredited interpreter. Jurors 3K.10 The jury bailiff, when addressing the jurors at the start of their period of jury service, shall inform them that each juror may take an oath or affirm in Welsh or English as he wishes. 3K.11 After the jury has been selected to try a case, and before it is sworn, the court officer swearing in the jury shall inform the jurors in open court that each juror may take an oath or affirm in Welsh or English as he wishes. A juror who takes the oath or affirms in Welsh should not be asked to repeat it in English. 3K.12 Where Welsh is used by any party or witness in a trial, an accredited interpreter will provide simultaneous translation from Welsh to English for the jurors who do not speak Welsh. There is no provision for the translation of evidence from English to Welsh for a Welsh speaking juror. 3K.13 The jury’s deliberations must be conducted in private with no other person present and therefore no interpreter may be provided to translate the discussion for the benefit of one or more of the jurors. Witnesses 3K.14 When each witness is called, the court officer administering the oath or affirmation shall inform the witness that he may be sworn or affirm in Welsh or English, as he wishes. A witness who takes the oath or affirms in Welsh should not be asked to repeat it in English. Opening / closing of Crown Courts 3K.15 Unless it is not reasonably practicable to do so, the opening and closing of the court should be performed in Welsh and English. Role of Liaison Judge 3K.16 If any question or problem arises concerning the implementation of these directions, contact should in the first place be made with the Liaison Judge for the Welsh language through the Wales Circuit Office: HMCTS WALES / GLITEM CYMRU 3rd Floor, Churchill House / 3ydd Llawr Tŷ Churchill Churchill Way / Ffordd Churchill Cardiff / Caerdydd CF10 2HH 029 2067 8300 CPD I General Matters 3L: Security of Prisoners at Court 3L.1 High-risk prisoners identified to the court as presenting a significant risk of escape, violence in court or danger to those in the court and its environs, and to the public at large, will as far as possible, have administrative and remand appearances listed for disposal by way of live link. They will have priority for the use of video equipment. 3L.2 In all other proceedings that require the appearance in person of a high-risk prisoner, the proceedings will be listed at an appropriately secure court building and in a court with a secure (enclosed or ceiling-high) dock. 3L.3 Where a secure dock or live link is not available the court will be asked to consider an application for additional security measures, which may include: (a) the use of approved restraints (but see below at 3L.6); (b) the deployment of additional escort staff; (c) securing the court room for all or part of the proceedings; (d) in exceptional circumstances, moving the hearing to a prison. 3L.4 National Offender Management Service (NOMS) will be responsible for providing the assessment of the prisoner and it is accepted that this may change at short notice. NOMS must provide notification to the listing officer of all Category A prisoners, those on the Escape-list and Restricted Status prisoners or other prisoners who have otherwise been assessed as presenting a significant risk of violence or harm. There is a presumption that all prisoners notified as high-risk will be allocated a hearing by live link and/or secure dock facilities. Where the court cannot provide a secure listing, the reasons should be provided to the establishment so that alternative arrangements can be considered. Applications for use of approved restraints 3L.5 It is the duty of the court to decide whether a prisoner who appears before them should appear in restraints or not. Their decision must comply with the requirements of the European Convention on Human Rights, particularly Article 3, which prohibits degrading treatment, see Ranniman v Finland (1997) 26 EHRR 56 . 3L.6 No prisoner should be handcuffed in court unless there are reasonable grounds for apprehending that he will be violent or will attempt to escape. If an application is made, it must be entertained by the court and a ruling must be given. The defence should be given the opportunity to respond to the application: proceeding in the absence of the defendant or his representative may give rise to an issue under Article 6(1) of the European Convention on Human Rights: R v Rollinson (1996) 161 JP 107, CA. If an application is to be made ex parte then that application should be made inter partes and the defence should be given an opportunity to respond. Additional security measures 3L.7 It may be in some cases that additional dock officers are deployed to mitigate the risk that a prisoner presents. When the nature of the risk is so serious that increased deployment will be insufficient or would in itself be so obtrusive as to prejudice a fair trial, then the court may be required to consider the following measures: (a) reconsider the case for a live link hearing, including transferring the case to a court where the live link is available; (b) transfer the case to an appropriately secure court; (c) the use of approved restraints on the prisoner for all or part of the proceedings; (d) securing the court room for all or part of the proceedings; and (e) the use of (armed) police in the court building. 3L.8 The establishment seeking the additional security measures will submit a Court Management Directions Form setting out the evidence of the prisoners identified risk of escape or violence and requesting the courts approval of security measures to mitigate that risk. This must be sent to the listing officer along with current, specific and credible evidence that the security measures are both necessary and proportionate to the identified risk and that the risk cannot be managed in any other way. 3L.9 If the court is asked to consider transfer of the case, then this must be in accordance with the Listing and Allocation Practice Direction XIII F.11-F.13 post. The listing officer will liaise with the establishment, prosecution and the defence to ensure the needs of the witnesses are taken into account. 3L.10 The Judge who has conduct of the case must deal with any application for the use of restraints or any other security measure and will hear representations from the Crown Prosecution Service and the defence before proceeding. The application will only be granted if: (a) there are good grounds for believing that the prisoner poses a significant risk of trying to escape from the court (beyond the assumed motivation of all prisoners to escape) and/or risk of serious harm towards those persons in court or the public generally should an escape attempt be successful; and (b) where there is no other viable means of preventing escape or serious harm. High-risk prisoners giving evidence from the witness box 3L.11 High-risk prisoners giving evidence from the witness box may pose a significant security risk. In circumstances where such prisoners are required to move from a secure dock to an insecure witness box, an application may be made for the court to consider the use of additional security measures including: (a) the use of approved restraints; (b) the deployment of additional escort staff or police in the courtroom or armed police in the building. The decision to deploy an armed escort is for the Chief Inspector of the relevant borough: the decision to allow the armed escort in or around the court room is for the Senior Presiding Judge (see below); (c) securing the courtroom for all or part of the proceedings; (d) giving evidence from the secure dock; and (e) use of live link if the prisoner is not the defendant. CPD I General Matters 3M: PROCEDURE FOR APPLICATION FOR ARMED POLICE PRESENCE IN CROWN COURTS AND MAGISTRATES’ COURT BUILDINGS 3M.1 This Practice Direction sets out the procedure for the making and handling of applications for authorisation for the presence of armed police officers within the precincts of any Crown Court and magistrates’ court building at any time. It applies to an application to authorise the carriage of firearms or tasers in court. It does not apply to officers who are carrying CS spray or PAVA incapacitant spray, which is included in the standard equipment issued to officers in some forces and therefore no separate authorisation is required for its carriage in court. 3M.2 This Practice Direction applies to all cases in England and Wales in which a police unit intends to request authorisation for the presence of armed police officers in the Crown Court or in the magistrates’ court buildings at any time and including during the delivery of prisoners to court. Emergency situations 3M.3 This Practice Direction does not apply in an emergency situation. In such circumstances, the police must be able to respond in a way in which their professional judgment deems most appropriate. Designated court centres 3M.4 Applications may only be made for armed police presence in the designated Crown Court and magistrates’ court centres (see below). This list may be revised from time to time in consultation with the Association of Chief Police Officers (ACPO) and HMCTS. It will be reviewed at least every five years in consultation with ACPO armed police secretariat and the Presiding Judges. 3M.5 The Crown Court centres designated for firearms deployment are: (a) Northern Circuit: Carlisle, Chester, Liverpool, Preston, Manchester Crown Square & Manchester Minshull Street. (b) North Eastern Circuit: Bradford, Leeds, Newcastle upon Tyne, Sheffield, Teesside and Kingston-upon-Hull. (c) Western Circuit: Bristol, Winchester and Exeter. (d) South Eastern Circuit (not including London): Canterbury, Chelmsford, Ipswich, Luton, Maidstone, Norwich, Reading and St Albans. (e) South Eastern Circuit (London only): Central Criminal Court, Woolwich, Kingston and Snaresbrook. (f) Midland Circuit: Birmingham, Northampton, Nottingham and Leicester. (g) Wales Circuit: Cardiff, Swansea and Caernarfon. 3M.6 The magistrates’ courts designated for firearms deployment are: (a) South Eastern Circuit (London only): Westminster Magistrates’ Court and Belmarsh Magistrates’ Court. Preparatory work prior to applications in all cases 3M.7 Prior to the making of any application for armed transport of prisoners or the presence of armed police officers in the court building, consideration must be given to making use of prison video link equipment to avoid the necessity of prisoners’ attendance at court for the hearing in respect of which the application is to be made. 3M.8 Notwithstanding their designation, each requesting officer will attend the relevant court before an application is made to ensure that there have been no changes to the premises and that there are no circumstances that might affect security arrangements. Applying to the Crown Court 3M.9 All applications should be sent to the Cluster Manager and should be sent by email if possible and must be on the standard form. 3M.10 The Cluster Manager will notify the Presiding Judge on the circuit and the Resident Judge by email, providing a copy of the form and any supporting evidence. The Presiding Judge may ask to see the senior police officer concerned. 3M.11 The Presiding Judge will consider the application. If it is refused the application fails and the police must be informed. 3M.12 If the Presiding Judge approves the application it should be forwarded to the secretary in the Senior Presiding Judge’s Office. The Senior Presiding Judge will make the final decision. The Presiding Judge will receive written confirmation of that decision. 3M.13 The Presiding Judge will notify the Cluster Manager and the Resident Judge of the decision. The Cluster Manager will immediately inform the police of the decision by telephone. The decision must then be confirmed in writing to the police. Urgent applications to the Crown Court 3M.14 If the temporary deployment of armed police arises as an urgent issue and a case would otherwise have to be adjourned; or if the trial judge is satisfied that there is a serious risk to public safety, then the Resident Judge will have a discretion to agree such deployment without having obtained the consent of a Presiding Judge or the Senior Presiding Judge. In such a case: (a) the Resident Judge should assess the facts and agree the proposed solution with a police officer of at least Superintendent level. That officer should agree the approach with the Firearms Division of the police. (b) if the proposed solution involves the use of armed police officers, the Resident Judge must try to contact the Presiding Judge and/or the Senior Presiding Judge by email and telephone. The Cluster Manager should be informed of the situation. (c) if the Resident Judge cannot obtain a response from the Presiding Judge or the Senior Presiding Judge, the Resident Judge may grant the application if satisfied: (i) that the application is necessary; (ii) that without such deployment there would be a significant risk to public safety; and (iii) that the case would have to be adjourned at significant difficulty or inconvenience. 3M.15 The Resident Judge must keep the position under continual review, to ensure that it remains appropriate and necessary. The Resident Judge must make continued efforts to contact the Presiding Judge and the Senior Presiding Judge to notify them of the full circumstances of the authorisation. Applying to the magistrates’ court s 3M.16 All applications should be directed, by email if possible, to the Office of the Chief Magistrate, at Westminster Magistrates’ Court and must be on the standard form. 3M.17 The Chief Magistrate should consider the application and, if approved, it should be forwarded to the Senior Presiding Judge’s office. The Senior Presiding Judge will make the final decision. The Chief Magistrate will receive written confirmation of that decision and will then notify the requesting police officer and, where authorisation is given, the affected magistrates’ court of the decision. Urgent applications in the magistrates’ courts 3M.18 If the temporary deployment of armed police arises as an urgent issue and a case would otherwise have to be adjourned; or if the Chief Magistrate is satisfied that there is a serious risk to public safety, then the Chief Magistrate will have a discretion to agree such deployment without having obtained the consent of the Senior Presiding Judge. In such a case: (a) the Chief Magistrate should assess the facts and agree the proposed solution with a police officer of at least Superintendent level. That officer should agree the approach with the Firearms Division of the police. (b) if the proposed solution involves the use of armed police officers, the Chief Magistrate must try to contact the Senior Presiding Judge by email and telephone. The Cluster Manager should be informed of the situation. (c) if the Chief Magistrate cannot obtain a response from the Senior Presiding Judge, the Chief Magistrate may grant the application if satisfied: (i) that the application is necessary; (ii) that without such deployment there would be a significant risk to public safety; and (iii) that the case would have to be adjourned at significant difficulty or inconvenience. 3M.19 The Chief Magistrate must keep the position under continual review, to ensure that it remains appropriate and necessary. The Chief Magistrate must make continued efforts to contact the Senior Presiding Judge to notify him of the full circumstances of the authorisation. CrimPR Part 5 Forms and court records CPD I General matters 5A: FORMS 5A.1 The forms at Annex D to the Consolidated Criminal Practice Direction of 8 th July, 2002, [2002] 1 W.L.R. 2870 ; [2002] 2 Cr. App. R. 35, or forms to that effect, are to be used in the criminal courts, in accordance with CrimPR 5.1. 5A.2 The forms at Annex E to that Practice Direction, the case management forms, must be used in the criminal courts, in accordance with that rule. 5A.3 The table at the beginning of each section of each of those Annexes lists the forms and: (a) shows the rule in connection with which each applies; (b) describes each form. 5A.4 The forms may be amended or withdrawn from time to time, or new forms added, under the authority of the Lord Chief Justice. CPD I General matters 5B: Access to information held by the court 5B.1 Open justice, as Lord Justice Toulson recently re-iterated in the case of R(Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 , [2013] QB 618 , is a ‘principle at the heart of our system of justice and vital to the rule of law’. There are exceptions but these ‘have to be justified by some even more important principle.’ However, the practical application of that undisputed principle, and the proper balancing of conflicting rights and principles, call for careful judgments to be made. The following is intended to provide some assistance to courts making decisions when asked to provide the public, including journalists, with access to or copies of information and documents held by the court. It is not a prescriptive list, as the court will have to consider all the circumstances of each individual case. 5B.2 It remains the responsibility of the recipient of information or documents to ensure that they comply with any and all restrictions such as reporting restrictions (see Part 6 and the accompanying Practice Direction). 5B.3 For the purposes of this direction, the word document includes images in photographic, digital including DVD format, video, CCTV or any other form. 5B.4 Certain information can and should be provided to the public on request, unless there are restrictions, such as reporting restrictions, imposed in that particular case. CrimPR 5.8(4) and 5.8(6) read together specify the information that the court officer will supply to the public; an oral application is acceptable and no reason need be given for the request. There is no requirement for the court officer to consider the non-disclosure provisions of the Data Protection Act 1998 as the exemption under section 35 applies to all disclosure made under ‘any enactment … or by the order of a court’, which includes under the Criminal Procedure Rules. 5B.5 If the information sought is not listed at CrimPR 5.8(6), rule 5.8(7) will apply, and the provision of information is at the discretion of the court. The following guidance is intended to assist the court in exercising that discretion. 5B.6 A request for access to documents used in a criminal case should first be addressed to the party who presented them to the court. Prosecuting authorities are subject to the Freedom of Information Act 2000 and the Data Protection Act 1998 and their decisions are susceptible to review. 5B.7 If the request is from a journalist or media organisation, note that there is a protocol between ACPO, the CPS and the media entitled ‘Publicity and the Criminal Justice System’: http://www.cps.gov.uk/publications/agencies/mediaprotocol.html There is additionally a protocol made under CrimPR 5.8(5)(b) between the media and HMCTS: http://www.newspapersoc.org.uk/sites/default/files/Docs/Protocol-for-Sharing-Court-Registers-and-Court-Lists-with-Local-Newspapers_September-2011.doc This Practice Direction does not affect the operation of those protocols. Material should generally be sought under the relevant protocol before an application is made to the court. 5B.8 An application to which CrimPR 5.8(7) applies must be made in accordance with rule 5.8; it must be in writing, unless the court permits otherwise, and ‘must explain for what purpose the information is required.’ A clear, detailed application, specifying the name and contact details of the applicant, whether or not he or she represents a media organisation, and setting out the reasons for the application and to what use the information will be put, will be of most assistance to the court. Applicants should state if they have requested the information under a protocol and include any reasons given for the refusal. Before considering such an application, the court will expect the applicant to have given notice of the request to the parties. 5B.9 The court will consider each application on its own merits. The burden of justifying a request for access rests on the applicant. Considerations to be taken into account will include: i. whether or not the request is for the purpose of contemporaneous reporting; a request after the conclusion of the proceedings will require careful scrutiny by the court; ii. the nature of the information or documents being sought; iii. the purpose for which they are required; iv. the stage of the proceedings at the time when the application is made; v. the value of the documents in advancing the open justice principle, including enabling the media to discharge its role, which has been described as a ‘public watchdog’, by reporting the proceedings effectively; vi. any risk of harm which access to them may cause to the legitimate interests of others; and vii. any reasons given by the parties for refusing to provide the material requested and any other representations received from the parties. Further, all of the principles below are subject to any specific restrictions in the case. Courts should be aware that the risk of providing a document may reduce after a particular point in the proceedings, and when the material requested may be made available. Documents read aloud in their entirety 5B.10 If a document has been read aloud to the court in its entirety, it should usually be provided on request, unless to do so would be disruptive to the court proceedings or place an undue burden on the court, the advocates or others. It may be appropriate and convenient for material to be provided electronically, if this can be done securely. 5B.11 Documents likely to fall into this category are: i. Opening notes ii. Statements agreed under section 9 of the Criminal Justice Act 1967 , including experts’ reports, if read in their entirety iii. Admissions made under section 10 of the Criminal Justice Act 1967 . Documents treated as read aloud in their entirety 5B.12 A document treated by the court as if it had been read aloud in public, though in fact it has been neither read nor summarised aloud, should generally be made available on request. The burden on the court, the advocates or others in providing the material should be considered, but the presumption in favour of providing the material is greater when the material has only been treated as having been read aloud. Again, subject to security considerations, it may be convenient for the material to be provided electronically. 5B.13 Documents likely to fall into this category include: i. Skeleton arguments ii. Written submissions Documents read aloud in part or summarised aloud 5B.14 Open justice requires only access to the part of the document that has been read aloud. If a member of the public requests a copy of such a document, the court should consider whether it is proportionate to order one of the parties to produce a suitably redacted version. If not, access to the document is unlikely to be granted; however open justice will generally have been satisfied by the document having been read out in court. 5B.15 If the request comes from an accredited member of the press (see Access by reporters below), there may be circumstances in which the court orders that a copy of the whole document be shown to the reporter, or provided, subject to the condition that those matters that had not been read out to the court may not be used or reported. A breach of such an order would be treated as a contempt of court. 5B.16 Documents in this category are likely to include: i. Section 9 statements that are edited Jury bundles and exhibits (including video footage shown to the jury) 5B.17 The court should consider: i. whether access to the specific document is necessary to understand or effectively to report the case; ii. the privacy of third parties, such as the victim (in some cases, the reporting restriction imposed by section 1 of the Judicial Proceedings (Regulation of Reports) Act 1926 will apply (indecent or medical matter)); iii. whether the reporting of anything in the document may be prejudicial to a fair trial in this or another case, in which case whether it may be necessary to make an order under section 4(2) of the Contempt of Court Act 1981 . The court may order one of the parties to provide a copy of certain pages (or parts of the footage), but these should not be provided electronically. Statements of witnesses who give oral evidence 5B.18 A witness statement does not become evidence unless it is agreed under section 9 of the Criminal Justice Act 1967 and presented to the court. Therefore the statements of witnesses who give oral evidence, including ABE interview and transcripts and experts’ reports, should not usually be provided. Open justice is generally satisfied by public access to the court. Confidential documents 5B.19 A document the content of which, though relied upon by the court, has not been communicated to the public or reporters, nor treated as if it had been, is likely to have been supplied in confidence and should be treated accordingly. This will apply even if the court has made reference to the document or quoted from the document. There is most unlikely to be a sufficient reason to displace the expectation of confidentiality ordinarily attaching to a document in this category, and it would be exceptional to permit the inspection or copying by a member of the public or of the media of such a document. The rights and legitimate interests of others are likely to outweigh the interests of open justice with respect these documents. 5B.20 Documents in this category are likely to include: i. Pre-sentence reports ii. Medical reports iii. Victim Personal Statements iv. Reports and summaries for confiscation Prohibitions against the provision of information 5B.21 Statutory provisions may impose specific prohibitions against the provision of information. Those most likely to be encountered are listed in the note to CrimPR 5.8 and include the Rehabilitation of Offenders Act 1974 , section 18 of the Criminal Procedure and Investigations Act 1996 (“unused material” disclosed by the prosecution), sections 33 , 34 and 35 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO Act 2012 ’) (privileged information furnished to the Legal Aid Agency) and reporting restrictions generally. 5B.22 Reports of allocation or sending proceedings are restricted by section 52 A of the Crime and Disorder Act 1998 , so that only limited information, as specified in the statute, may be reported, whether it is referred to in the courtroom or not. The magistrates’ court has power to order that the restriction shall not apply; if any defendant objects the court must apply the interests of justice test as specified in section 52 A. The restriction ceases to apply either after all defendants indicate a plea of guilty, or after the conclusion of the trial of the last defendant to be tried. If the case does not result in a guilty plea, a finding of guilt or an acquittal, the restriction does not lift automatically and an application must be made to the court. 5B.23 Extradition proceedings have some features in common with committal proceedings, but no automatic reporting restrictions apply. 5B.24 Public Interest Immunity and the rights of a defendant, witnesses and victims under Article 6 and 8 of the European Convention on Human Rights may also restrict the power to release material to third parties. Other documents 5B.25 The following table indicates the considerations likely to arise on an application to inspect or copy other documents. Document Considerations Charge sheet Indictment The alleged offence(s) will have been read aloud in court, and their terms must be supplied under CrimPR 5.8(4) Material disclosed under CPIA 1996 To the extent that the content is deployed at trial, it becomes public at that hearing. Otherwise, it is a criminal offence for it to be disclosed: section 18 of the 1996 Act . Written notices, applications, replies (including any application for representation) To the extent that evidence is introduced, or measures taken, at trial, the content becomes public at that hearing. A statutory prohibition against disclosure applies to an application for representation: sections 33 , 34 and 35 of the LASPO Act 2012. Sentencing remarks Sentencing remarks should usually be provided to the accredited Press, if the judge was reading from a prepared script which was handed out immediately afterwards; if not, then permission for a member of the accredited Press to obtain a transcript should usually be given (see also paragraphs 26 and 29 below). Official recordings Transcript See CrimPR 5.5. See CrimPR 5.5. Access by reporters 5B.26 Under CrimPR Part 5 , the same procedure applies to applications for access to information by reporters as to other members of the public. However, if the application is made by legal representatives instructed by the media, or by an accredited member of the media, who is able to produce in support of the application a valid Press Card ( http://www.ukpresscardauthority.co.uk/ ) then there is a greater presumption in favour of providing the requested material, in recognition of the press’ role as ‘public watchdog’ in a democratic society ( Observer and Guardian v United Kingdom (1992) 14 E.H.R.R. 153 , Times November 27, 1991). The general principle in those circumstances is that the court should supply documents and information unless there is a good reason not to in order to protect the rights or legitimate interests of others and the request will not place an undue burden on the court ( R(Guardian News and Media Ltd) at [87]). Subject to that, the paragraphs above relating to types of documents should be followed. 5B.27 Court staff should usually verify the authenticity of cards, checking the expiry date on the card and where necessary may consider telephoning the number on the reverse of the card to verify the card holder. Court staff may additionally request sight of other identification if necessary to ensure that the card holder has been correctly identified. The supply of information under CrimPR 5.8(7) is at the discretion of the court, and court staff must ensure that they have received a clear direction from the court before providing any information or material under rule 5.8(7) to a member of the public, including to the accredited media or their legal representatives. 5B.28 Opening notes and skeleton arguments or written submissions, once they have been placed before the court, should usually be provided to the media. If there is no opening note, permission for the media to obtain a transcript of the prosecution opening should usually be given (see below). It may be convenient for copies to be provided electronically by counsel, provided that the documents are kept suitably secure. The media are expected to be aware of the limitations on the use to which such material can be put, for example that legal argument held in the absence of the jury must not be reported before the conclusion of the trial. 5B.29 The media should also be able to obtain transcripts of hearings held in open court directly from the transcription service provider, on payment of any required fee. The service providers commonly require the judge’s authorisation before they will provide a transcript, as an additional verification to ensure that the correct material is released and reporting restrictions are noted. However, responsibility for compliance with any restriction always rests with the person receiving the information or material: see CPD I General matters 6B, beneath. 5B.30 It is not for the judge to exercise an editorial judgment about ‘the adequacy of the material already available to the paper for its journalistic purpose’ ( Guardian at 82) but the responsibility for complying with the Contempt of Court Act 1981 and any and all restrictions on the use of the material rests with the recipient. CPD I General matters: 5C ISSUE OF MEDICAL CERTIFCATES 5C.1 Doctors will be aware that medical notes are normally submitted by defendants in criminal proceedings as justification for not answering bail. Medical notes may also be submitted by witnesses who are due to give evidence and jurors. 5C.2 If a medical certificate is accepted by the court, this will result in cases (including contested hearings and trials) being adjourned rather than the court issuing a warrant for the defendant’s arrest without bail. Medical certificates will also provide the defendant with sufficient evidence to defend a charge of failure to surrender to bail. 5C.3 However, a court is not absolutely bound by a medical certificate. The medical practitioner providing the certificate may be required by the court to give evidence. Alternatively the court may exercise its discretion to disregard a certificate which it finds unsatisfactory: R V Ealing Magistrates’ Court Ex P. Burgess [2001] 165 J.P. 82 5C.4 Circumstances where the court may find a medical certificate unsatisfactory include: (a) Where the certificate indicates that the defendant is unfit to attend work (rather than to attend court); (b) Where the nature of the defendant’s ailment (e.g. a broken arm) does not appear to be capable of preventing his attendance at court; (c) Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale. 5C.5 It therefore follows that the minimum standards a medical certificate should set out are: (a) The date on which the medical practitioner examined the defendant; (b) The exact nature of the defendants ailments (c) If it is not self-evident, why the ailment prevents the defendant attending court; (d) An indication as to when the defendant is likely to be able to attend court, or a date when the current certificate expires. 5C.6 Medical practitioners should be aware that when issuing a certificate to a defendant in criminal proceedings they make themselves liable to being summonsed to court to give evidence about the content of the certificate, and they may be asked to justify their statements. CrimPR Part 6 Reporting, etc. restrictions CPD I General matters 6A: UNOFFICIAL SOUND RECORDING OF PROCEEDINGS 6A.1 Section 9 of the Contempt of Court Act 1981 contains provisions governing the unofficial use of equipment for recording sound in court. Section 9(1) provides that it is a contempt of court (a) to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the permission of the court; (b) to publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or to dispose of it or any recording so derived, with a view to such publication; (c) to use any such recording in contravention of any conditions of leave granted under paragraph (a). These provisions do not apply to the making or use of sound recordings for purposes of official transcripts of the proceedings, upon which the Act imposes no restriction whatever. 6A.2 The discretion given to the court to grant, withhold or withdraw leave to use equipment for recording sound or to impose conditions as to the use of the recording is unlimited, but the following factors may be relevant to its exercise: (a) the existence of any reasonable need on the part of the applicant for leave, whether a litigant or a person connected with the press or broadcasting, for the recording to be made; (b) the risk that the recording could be used for the purpose of briefing witnesses out of court; (c) any possibility that the use of the recorder would disturb the proceedings or distract or worry any witnesses or other participants. 6A.3 Consideration should always be given whether conditions as to the use of a recording made pursuant to leave should be imposed. The identity and role of the applicant for leave and the nature of the subject matter of the proceedings may be relevant to this. 6A.4 The particular restriction imposed by section 9(1) (b) applies in every case, but may not be present in the mind of every applicant to whom leave is given. It may therefore be desirable on occasion for this provision to be drawn to the attention of those to whom leave is given. 6A.5 The transcript of a permitted recording is intended for the use of the person given leave to make it and is not intended to be used as, or to compete with, the official transcript mentioned in section 9(4) . 6A.6 Where a contravention of section 9(1) is alleged, the procedure in section 2 of Part 48 of the Rules should be followed. Section 9(3) of the 1981 Act permits the court to ‘order the instrument, or any recording made with it, or both, to be forfeited’. The procedure at CrimPR 6.10 should be followed. CPD I General matters 6B: RESTRICTIONS ON REPORTING PROCEEDINGS 6B.1 Open justice is an essential principle in the criminal courts but the principle is subject to some statutory restrictions. These restrictions are either automatic or discretionary. Guidance is provided in the joint publication, Reporting Restrictions in the Criminal Courts issued by the Judicial College, the Newspaper Society, the Society of Editors and the Media Lawyers Association. The current version is the fourth edition and has been updated to be effective from May 2015. 6B.2 Where a restriction is automatic no order can or should be made in relation to matters falling within the relevant provisions. However, the court may, if it considers it appropriate to do so, give a reminder of the existence of the automatic restriction. The court may also discuss the scope of the restriction and any particular risks in the specific case in open court with representatives of the press present. Such judicial observations cannot constitute an order binding on the editor or the reporter although it is anticipated that a responsible editor would consider them carefully before deciding what should be published. It remains the responsibility of those reporting a case to ensure that restrictions are not breached. 6B.3 Before exercising its discretion to impose a restriction the court must follow precisely the statutory provisions under which the order is to be made, paying particular regard to what has to be established, by whom and to what standard. 6B.4 Without prejudice to the above paragraph, certain general principles apply to the exercise of the court’s discretion: (a) The court must have regard to CrimPR Parts 6 and 18. (b) The court must keep in mind the fact that every order is a departure from the general principle that proceedings shall be open and freely reported. (c) Before making any order the court must be satisfied that the purpose of the proposed order cannot be achieved by some lesser measure e.g. the grant of special measures, screens or the clearing of the public gallery (usually subject to a representative/s of the media remaining). (d) The terms of the order must be proportionate so as to comply with Article 10 ECHR (freedom of expression). (e) No order should be made without giving other parties to the proceedings and any other interested party, including any representative of the media, an opportunity to make representations. (f) Any order should provide for any interested party who has not been present or represented at the time of the making of the order to have permission to apply within a limited period e.g. 24 hours. (g) The wording of the order is the responsibility of the judge or Bench making the order: it must be in precise terms and, if practicable, agreed with the advocates. (h) The order must be in writing and must state: (i) the power under which it is made; (ii) its precise scope and purpose; and (iii) the time at which it shall cease to have effect, if appropriate. (i) The order must specify, in every case, whether or not the making or terms of the order may be reported or whether this itself is prohibited. Such a report could cause the very mischief which the order was intended to prevent. 6B.5 A series of template orders have been prepared by the Judicial College and are available as an appendix to the Crown Court Bench Book Companion; these template orders should generally be used. 6B.6 A copy of the order should be provided to any person known to have an interest in reporting the proceedings and to any local or national media who regularly report proceedings in the court. 6B.7 Court staff should be prepared to answer any enquiry about a specific case; but it is and will remain the responsibility of anyone reporting a case to ensure that no breach of any order occurs and the onus rests on such person to make enquiry in case of doubt. CPD I General matters 6C: USE OF LIVE TEXT-BASED FORMS OF COMMUNICATION (INCLUDING TWITTER) FROM COURT FOR THE PURPOSES OF FAIR AND ACCURATE REPORTING 6C.1 This part clarifies the use which may be made of live text-based communications, such as mobile email, social media (including Twitter) and internet-enabled laptops in and from courts throughout England and Wales. For the purpose of this part these means of communication are referred to, compendiously, as ‘live text-based communications’. It is consistent with the legislative structure which: (a) prohibits: (i) the taking of photographs in court ( section 41 of the Criminal Justice Act 1925 ); (ii) the use of sound recording equipment in court unless the leave of the judge has first been obtained ( section 9 of the Contempt of Court Act 1981 ); and (b) requires compliance with the strict prohibition rules created by sections 1 , 2 and 4 of the Contempt of Court Act 1981 in relation to the reporting of court proceedings. General Principles 6C.2 The judge has an overriding responsibility to ensure that proceedings are conducted consistently, with the proper administration of justice, and to avoid any improper interference with its processes. 6C.3 A fundamental aspect of the proper administration of justice is the principle of open justice. Fair and accurate reporting of court proceedings forms part of that principle. The principle is, however, subject to well-known statutory and discretionary exceptions. Two such exceptions are the prohibitions, set out in paragraph 6C.1(a), on photography in court and on making sound recordings of court proceedings. 6C.4 The statutory prohibition on photography in court, by any means, is absolute. There is no judicial discretion to suspend or dispense with it. Any equipment which has photographic capability must not have that function activated. 6C.5 Sound recordings are also prohibited unless, in the exercise of its discretion, the court permits such equipment to be used. In criminal proceedings, some of the factors relevant to the exercise of that discretion are contained in paragraph 6A.2. The same factors are likely to be relevant when consideration is being given to the exercise of this discretion in civil or family proceedings. Use of Live Text-based Communications: General Considerations 6C.6 The normal, indeed almost invariable, rule has been that mobile phones must be turned off in court. There is however no statutory prohibition on the use of live text-based communications in open court. 6C.7 Where a member of the public, who is in court, wishes to use live text-based communications during court proceedings an application for permission to activate and use, in silent mode, a mobile phone, small laptop or similar piece of equipment, solely in order to make live text-based communications of the proceedings will need to be made. The application may be made formally or informally (for instance by communicating a request to the judge through court staff). 6C.8 It is presumed that a representative of the media or a legal commentator using live text-based communications from court does not pose a danger of interference to the proper administration of justice in the individual case. This is because the most obvious purpose of permitting the use of live text-based communications would be to enable the media to produce fair and accurate reports of the proceedings. As such, a representative of the media or a legal commentator who wishes to use live text-based communications from court may do so without making an application to the court. 6C.9 When considering, either generally on its own motion, or following a formal application or informal request by a member of the public, whether to permit live text-based communications, and if so by whom, the paramount question for the judge will be whether the application may interfere with the proper administration of justice. 6C.10 In considering the question of permission, the factors listed in paragraph 6A.2 are likely to be relevant. 6C.11 Without being exhaustive, the danger to the administration of justice is likely to be at its most acute in the context of criminal trials e.g., where witnesses who are out of court may be informed of what has already happened in court and so coached or briefed before they then give evidence, or where information posted on, for instance, Twitter about inadmissible evidence may influence members of the jury. However, the danger is not confined to criminal proceedings; in civil and sometimes family proceedings, simultaneous reporting from the courtroom may create pressure on witnesses, by distracting or worrying them. 6C.12 It may be necessary for the judge to limit live text-based communications to representatives of the media for journalistic purposes but to disallow its use by the wider public in court. That may arise if it is necessary, for example, to limit the number of mobile electronic devices in use at any given time because of the potential for electronic interference with the court’s own sound recording equipment, or because the widespread use of such devices in court may cause a distraction in the proceedings. 6C.13 Subject to these considerations, the use of an unobtrusive, hand-held, silent piece of modern equipment, for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court, is generally unlikely to interfere with the proper administration of justice. 6C.14 Permission to use live text-based communications from court may be withdrawn by the court at any time. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION II PRELIMINARY PROCEEDINGS CrimPR Part 8 Initial details of the prosecution case CPD II Preliminary proceedings 8A: DEFENDANT’S RECORD Copies of record 8A.1 The defendant’s record (previous convictions, cautions, reprimands, etc) may be taken into account when the court decides not only on sentence but also, for example, about bail, or when allocating a case for trial. It is therefore important that up to date and accurate information is available. Previous convictions must be provided as part of the initial details of the prosecution case under CrimPR Part 8. 8A.2 The record should usually be provided in the following format: Personal details and summary of convictions and cautions – Police National Computer [“PNC”] Court / Defence / Probation Summary Sheet; Previous convictions – PNC Court / Defence / Probation printout, supplemented by Form MG16 if the police force holds convictions not shown on PNC; Recorded cautions – PNC Court / Defence / Probation printout, supplemented by Form MG17 if the police force holds cautions not shown on PNC. 8A.3 The defence representative should take instructions on the defendant’s record and if the defence wish to raise any objection to the record, this should be made known to the prosecutor immediately. 8A.4 It is the responsibility of the prosecutor to ensure that a copy of the defendant’s record has been provided to the Probation Service. 8A.5 Where following conviction a custodial order is made, the court must ensure that a copy is attached to the order sent to the prison. Additional information 8A.6 In the Crown Court, the police should also provide brief details of the circumstances of the last three similar convictions and / or of convictions likely to be of interest to the court, the latter being judged on a case-by-case basis. 8A.7 Where the current alleged offence could constitute a breach of an existing sentence such as a suspended sentence, community order or conditional discharge, and it is known that that sentence is still in force then details of the circumstances of the offence leading to the sentence should be included in the antecedents. The detail should be brief and include the date of the offence. 8A.8 On occasions the PNC printout provided may not be fully up to date. It is the responsibility of the prosecutor to ensure that all of the necessary information is available to the court and the Probation Service and provided to the defence. Oral updates at the hearing will sometimes be necessary, but it is preferable if this information is available in advance. CrimPR Part 9 Allocation and sending for trial CPD II Preliminary proceedings 9A: ALLOCATION (MODE OF TRIAL) 9A.1 Courts must follow the Sentencing Council's guideline on Allocation (mode of trial) when deciding whether or not to send defendants charged with "either way" offences for trial in the Crown Court under section 51(1) of the Crime and Disorder Act 1998 . The guideline refers to the factors to which a court must have regard in accordance with section 19 of the Magistrates' Courts Act 1980 . Section 19(2) (a) permits reference to previous convictions of the defendant. 9A.2 The Allocation guideline lists four factors, a) to d), that the court must also have regard to. No examples or guidance are given, however, the following could be a consideration when applying the factors: that where cases involve complex questions of fact or difficult questions of law, including difficult issues of disclosure of sensitive material, the court should consider sending for trial. 9A.3 Certain general observations can also be made: (a) the court should never make its decision on the grounds of convenience or expedition; and (b) the fact that the offences are alleged to be specimens is a relevant consideration (although it has to be borne in mind that difficulties can arise in sentencing in relation to specimen counts: see R v Clark [1996] 2 Cr. App. R. 282, [1996] 2 Cr. App. R. (S.) 351; R v Canavan and others [1998] 1 W.L.R. 604 , [1998] 1 Cr. App. R. 79, [1998] 1 Cr. App. R. (S.) 243 and R v Oakes [2012] EWCA Crim 2435 , [2013] 2 Cr. App. R. (S.) 22 (see case of R v Restivo)); the fact that the defendant will be asking for other offences to be taken into consideration, if convicted, is not. CrimPR Part 10 The indictment CPD II Preliminary proceedings 10A: SETTLING THE INDICTMENT 10A.1 CrimPR 10.1 requires the prosecutor to serve a draft indictment not more than 28 days after service of the evidence in a case sent for trial, after the sending of the defendant for trial, or after one of the other events listed in that rule. CrimPR 10.2(5) provides that an indictment may contain any count charging substantially the same offence as one sent for trial and any other count based on the prosecution evidence already served which the Crown Court has jurisdiction to try. Where the prosecutor intends to include in the draft indictment counts which differ materially from, or are additional to, those on which the defendant was sent for trial then the defendant should be given as much notice as possible, usually by service of a draft indictment, or a provisional draft indictment, at the earliest possible opportunity. 10A.2 There is no rule of law or practice which prohibits two indictments being in existence at the same time for the same offence against the same person and on the same facts. But the court will not allow the prosecution to proceed on both indictments. They cannot be tried together and the court will require the prosecution to elect the one on which the trial will proceed. Where different defendants have been separately sent for trial for offences which can lawfully be charged in the same indictment then it is permissible to join in one indictment counts based on the separate sendings for trial even if an indictment based on one of them already has been signed. Where necessary the court should be invited to exercise its powers of amendment under section 5 of the Indictments Act 1915 . 10A.3 Save in the special circumstances described in the following paragraphs of this Practice Direction, it is undesirable that a large number of counts should be contained in one indictment. Where defendants on trial have a variety of offences alleged against them then, in the interests of effective case management, it is the court’s responsibility to exercise its powers in accordance with the overriding objective set out in CrimPR Part 1. The prosecution may be required to identify a selection of counts on which the trial should proceed, leaving a decision to be taken later whether to try any of the remainder. Where an indictment contains substantive counts and one or more related conspiracy counts, the court will expect the prosecution to justify the joinder. Failing justification, the prosecution should be required to choose whether to proceed on the substantive counts or on the conspiracy counts. In any event, if there is a conviction on any counts that are tried, then those that have been postponed can remain on the file marked “not to be proceeded with without the leave of the court or the Court of Appeal”. In the event that a conviction is later quashed on appeal, the remaining counts can be tried. Where necessary the court has power to order that an indictment be severed. Multiple offending: trial by jury and then by judge alone 10A.4 Under sections 17 to 21 of the Domestic Violence, Crime and Victims Act 2004 , the court may order that the trial of certain counts will be by jury in the usual way and, if the jury convicts, that other associated counts will be tried by judge alone. The use of this power is likely to be appropriate where justice cannot be done without charging a large number of separate offences and the allegations against the defendant appear to fall into distinct groups by reference to the identity of the victim, by reference to the dates of the offences, or by some other distinction in the nature of the offending conduct alleged. 10A.5 In such a case, it is essential to make clear from the outset the association asserted by the prosecutor between those counts to be tried by a jury and those counts which it is proposed should be tried by judge alone, if the jury convict on the former. A special form of indictment is prescribed for this purpose. 10A.6 An order for such a trial may be made only at a preparatory hearing. It follows that where the prosecutor intends to invite the court to order such a trial it will normally be appropriate to proceed as follows. The draft indictment served under CrimPR 10.1 should be in the form appropriate to such a trial. It should be accompanied by an application under CrimPR 3.15 for a preparatory hearing. This will ensure that the defendant is aware at the earliest possible opportunity of what the prosecution propose and of the proposed association of counts in the indictment. It is undesirable for a draft indictment in the usual form to be served where the prosecutor expects to apply for a two stage trial and hence, of necessity, for permission to amend the indictment at a later stage in order that it may be in the special form. 10A.7 On receipt of a draft two part indictment, a Crown Court officer should sign it at the end of Part Two. At the start of the preparatory hearing, the defendant should be arraigned on all counts in Part One of the indictment. Arraignment on Part Two need not take place until after there has been either a guilty plea to, or finding of guilt on, an associated count in Part One of the indictment. 10A.8 If the prosecution application is successful, the prosecutor should prepare an abstract of the indictment, containing the counts from Part One only, for use in the jury trial. Preparation of such an abstract does not involve “amendment” of the indictment. It is akin to where a defendant pleads guilty to certain counts in an indictment and is put in the charge of the jury on the remaining counts only. 10A.9 If the prosecution application for a two stage trial is unsuccessful, the prosecutor may apply to amend the indictment to remove from it any counts in Part Two which would make jury trial on the whole indictment impracticable and to revert to a standard form of indictment. It will be a matter for the court whether arraignment on outstanding counts takes place at the preparatory hearing, or at a future date. Multiple offending: count charging more than one incident 10A.10 CrimPR 10.2(2) allows a single count to allege more than one incident of the commission of an offence in certain circumstances. Each incident must be of the same offence. The circumstances in which such a count may be appropriate include, but are not limited to, the following: (a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or of money laundering; (b) the alleged incidents involved a marked degree of repetition in the method employed or in their location, or both; (c) the alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year; (d) in any event, the defence is such as to apply to every alleged incident without differentiation. Where what is in issue differs between different incidents, a single “multiple incidents” count will not be appropriate, though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence. 10A.11 Even in circumstances such as those set out above, there may be occasions on which a prosecutor chooses not to use such a count, in order to bring the case within section 75(3) (a) of the Proceeds of Crime Act 2002 (criminal lifestyle established by conviction of three or more offences in the same proceedings): for example, because section 75(2) (c) of that Act does not apply (criminal lifestyle established by an offence committed over a period of at least six months). Where the prosecutor proposes such a course, it is unlikely that CrimPR Part 1 (the overriding objective) will require an indictment to contain a single “multiple incidents” count in place of a larger number of counts, subject to the general principles set out at paragraph 140A.3. 10A.12 For some offences, particularly sexual offences, the penalty for the offence may have changed during the period over which the alleged incidents took place. In such a case, additional “multiple incidents” counts should be used so that each count only alleges incidents to which the same maximum penalty applies. 10A.13 In other cases, such as sexual or physical abuse, a complainant may be in a position only to give evidence of a series of similar incidents without being able to specify when or the precise circumstances in which they occurred. In these cases, a ‘multiple incidents’ count may be desirable. If on the other hand, the complainant is able to identify particular incidents of the offence by reference to a date or other specific event, but alleges that in addition there were other incidents which the complainant is unable to specify, then it may be desirable to include separate counts for the identified incidents and a ‘multiple incidents’ count or counts alleging that incidents of the same offence occurred ‘many’ times. Using a ‘multiple incidents’ count may be an appropriate alternative to using ‘specimen’ counts in some cases where repeated sexual or physical abuse is alleged. The choice of count will depend on the particular circumstances of the case and should be determined bearing in mind the implications for sentencing set out in R v Canavan; R v Kidd; R v Shaw [1998] 1 W.L.R. 604 , [1998] 1 Cr. App. R. 79, [1998] 1 Cr. App. R. (S.) 243. CPD II Preliminary proceedings 10B: VOLUNTARY BILLS OF INDICTMENT 10B.1 Section 2(2) (b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 and paragraph 2(6) of Schedule 3 to the Crime and Disorder Act 1998 allow the preferment of a bill of indictment by the direction or with the consent of a judge of the High Court. Bills so preferred are known as ‘voluntary bills’. 10B.2 Applications for such consent must not only comply with each paragraph of the Indictments (Procedure) Rules 1971, SI 1971/2084, but must also be accompanied by: (a) a copy of any charges on which the defendant has been sent for trial; (b) a copy of any charges on which his or her sending for trial was refused by the magistrates’ court; (c) a copy of any existing indictment which has been preferred in consequence of his or her sending for trial; (d) a summary of the evidence or other document which (i) identifies the counts in the proposed indictment on which he or she has been sent for trial (or which are substantially the same as charges on which he or she has been so sent), and (ii) in relation to each other count in the proposed indictment, identifies the pages in the accompanying statements and exhibits where the essential evidence said to support that count is to be found. 10B.3 These requirements should be complied with in relation to each defendant named in the indictment for which consent is sought, whether or not it is proposed to prefer any new count against him or her. 10B.4 The preferment of a voluntary bill is an exceptional procedure. Consent should only be granted where good reason to depart from the normal procedure is clearly shown and only where the interests of justice, rather than considerations of administrative convenience, require it. 10B.5 Neither the 1933 Act , the 1998 Act nor the 1971 Rules expressly require a prosecuting authority applying for consent to the preferment of a voluntary bill to give notice of the application to the prospective defendant, nor to serve on him or her a copy of documents delivered to the judge; nor is it expressly required that the prospective defendant have any opportunity to make any submissions to the judge, whether in writing or orally. 10B.6 However, the Attorney-General previously issued guidance to prosecutors on the procedures to be adopted in seeking judicial consent to the preferment of voluntary bills. Those procedures remain applicable and prosecutors should: (a) on making an application for consent to preferment of a voluntary bill, give notice to the prospective defendant that such application has been made; (b) at about the same time, serve on the prospective defendant a copy of all the documents delivered to the judge (save to the extent that these have already been served on him or her); (c) inform the prospective defendant that he or she may make submissions in writing to the judge, provided that he or she does so within nine working days of the giving of notice under (a) above. 10B.7 Prosecutors must follow these procedures unless there are good reasons for not doing so, in which case prosecutors must inform the judge that the procedures have not been followed and seek leave to dispense with all or any of them. Judges should not give leave to dispense unless good reasons are shown. 10B.8 A judge to whom application for consent to the preferment of a voluntary bill is made will, of course, wish to consider carefully the documents submitted by the prosecutor and any written submissions made by the prospective defendant, and may properly seek any necessary amplification. The judge may invite oral submissions from either party, or accede to a request for an opportunity to make oral submissions, if the judge considers it necessary or desirable to receive oral submissions in order to make a sound and fair decision on the application. Any such oral submissions should be made on notice to the other party and in open court. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION III CUSTODY AND BAIL CrimPR Part 14 Bail and custody time limits CPD III Custody and bail 14A: BAIL BEFORE SENDING FOR TRIAL 14A.1 Before the Crown Court can deal with an application under CrimPR 14.8 by a defendant after a magistrates’ court has withheld bail, it must be satisfied that the magistrates’ court has issued a certificate, under section 5 (6A) of the Bail Act 1976 , that it heard full argument on the application for bail before it refused the application. The certificate of full argument is produced by the magistrates’ court’s computer system, Libra, as part of the GENORD (General Form of Order). Two hard copies are produced, one for the defence and one for the prosecution. (Some magistrates’ courts may also produce a manual certificate which will usually be available from the justices’ legal adviser at the conclusion of the hearing; the GENORD may not be produced until the following day.) Under CrimPR 14.4(4), the magistrates’ court officer will provide the defendant with a certificate that the court heard full argument. However, it is the responsibility of the defence, as the applicant in the Crown Court, to ensure that a copy of the certificate of full argument is provided to the Crown Court as part of the application (CrimPR 14.8(3)(e)). The applicant’s solicitors should attach a copy of the certificate to the bail application form. If the certificate is not enclosed with the application form, it will be difficult to avoid some delay in listing. Venue 14A.2 Applications should be made to the court to which the defendant will be, or would have been, sent for trial. In the event of an application in a purely summary case, it should be made to the Crown Court centre which normally receives Class 3 work. The hearing will be listed as a chambers matter, unless a judge has directed otherwise. CPD III Custody and bail 14B: BAIL: FAILURE TO SURRENDER AND TRIALS IN ABSENCE 14B.1 The failure of defendants to comply with the terms of their bail by not surrendering, or not doing so at the appointed time, undermines the administration of justice and disrupts proceedings. The resulting delays impact on victims, witnesses and other court users and also waste costs. A defendant’s failure to surrender affects not only the case with which he or she is concerned, but also the court’s ability to administer justice more generally, by damaging the confidence of victims, witnesses and the public in the effectiveness of the court system and the judiciary. It is, therefore, most important that defendants who are granted bail appreciate the significance of the obligation to surrender to custody in accordance with the terms of their bail and that courts take appropriate action, if they fail to do so. 14B.2 A defendant who will be unable for medical reasons to attend court in accordance with his or her bail must obtain a certificate from his or her general practitioner or another appropriate medical practitioner such as the doctor with care of the defendant at a hospital. This should be obtained in advance of the hearing and conveyed to the court through the defendant’s legal representative. In order to minimise the disruption to the court and to others, particularly witnesses if the case is listed for trial, the defendant should notify the court through his legal representative as soon as his inability to attend court becomes known. 14B.3 Guidance has been produced by the British Medical Association and the Crown Prosecution Service on the roles and responsibilities of medical practitioners when issuing medical certificates in criminal proceedings: link. Judges and magistrates should seek to ensure that this guidance is followed. However, it is a matter for each individual court to decide whether, in any particular case, the issued certificate should be accepted. Without a medical certificate or if an unsatisfactory certificate is provided, the court is likely to consider that the defendant has failed to surrender to bail. 14B.4 If a defendant fails to surrender to his or her bail there are at least four courses of action for the courts to consider taking:- (a) imposing penalties for the failure to surrender; (b) revoking bail or imposing more stringent conditions; (c) conducting trials in the absence of the defendant; and (d) ordering that some or all of any sums of money lodged with the court as a security or pledged by a surety as a condition on the grant of bail be forfeit. The relevant sentencing guideline is the Definitive Guideline Fail to Surrender to Bail. Under section 125(1) of the Coroners and Justice Act 2009 , for offences committed on or after 6 April 2010, the court must follow the relevant guideline unless it would be contrary to the interests of justice to do so. The guideline can be obtained from the Sentencing Council’s website: http://sentencingcouncil.judiciary.gov.uk/guidelines/guidelines-to-download.htm CPD III Custody and bail 14C: PENALTIES FOR FAILURE TO SURRENDER Initiating Proceedings – Bail granted by a police officer 14C.1 When a person has been granted bail by a police officer to attend court and subsequently fails to surrender to custody, the decision whether to initiate proceedings for a section 6(1) or section 6(2) offence will be for the police / prosecutor and proceedings are commenced in the usual way. 14C.2 The offence in this form is a summary offence although section 6(10) to (14) of the Bail Act 1976 , inserted by section 15(3) of the Criminal Justice Act 2003 , disapplies section 127 of the Magistrates’ Courts Act 1980 and provides for alternative time limits for the commencement of proceedings. The offence should be dealt with on the first appearance after arrest, unless an adjournment is necessary, as it will be relevant in considering whether to grant bail again. Initiating Proceedings – Bail granted by a court 14C.3 Where a person has been granted bail by a court and subsequently fails to surrender to custody, on arrest that person should normally be brought as soon as appropriate before the court at which the proceedings in respect of which bail was granted are to be heard. (There is no requirement to lay an information within the time limit for a Bail Act offence where bail was granted by the court). 14C.4 Given that bail was granted by a court, it is more appropriate that the court itself should initiate the proceedings by its own motion although the prosecutor may invite the court to take proceedings, if the prosecutor considers proceedings are appropriate. Timing of disposal 14C.5 Courts should not, without good reason, adjourn the disposal of a section 6(1) or section 6(2) Bail Act 1976 offence (failure to surrender) until the conclusion of the proceedings in respect of which bail was granted but should deal with defendants as soon as is practicable. In deciding what is practicable, the court must take into account when the proceedings in respect of which bail was granted are expected to conclude, the seriousness of the offence for which the defendant is already being prosecuted, the type of penalty that might be imposed for the Bail Act offence and the original offence, as well as any other relevant circumstances. 14C.6 If the Bail Act offence is adjourned alongside the substantive proceedings, then it is still necessary to consider imposing a separate penalty at the trial. In addition, bail should usually be revoked in the meantime. Trial in the absence of the defendant is not a penalty for the Bail Act offence and a separate penalty may be imposed for the Bail Act offence. Conduct of Proceedings 14C.7 Proceedings under section 6 of the Bail Act 1976 may be conducted either as a summary offence or as a criminal contempt of court. Where proceedings are commenced by the police or prosecutor, the prosecutor will conduct the proceedings and, if the matter is contested, call the evidence. Where the court initiates proceedings, with or without an invitation from the prosecutor, the court may expect the assistance of the prosecutor, such as in cross-examining the defendant, if required. 14C.8 The burden of proof is on the defendant to prove that he had reasonable cause for his failure to surrender to custody ( section 6(3) of the Bail Act 1976 ). Sentencing for a Bail Act offence 14C.9 A defendant who commits an offence under section 6(1) or section 6(2) of the Bail Act 1976 commits an offence that stands apart from the proceedings in respect of which bail was granted. The seriousness of the offence can be reflected by an appropriate and generally separate penalty being imposed for the Bail Act offence. 14C.10 As noted above, there is a sentencing guideline on sentencing offenders for Bail Act offences and this must be followed unless it would be contrary to the interests of justice to do so. Where the appropriate penalty is a custodial sentence, consecutive sentences should be imposed unless there are circumstances that make this inappropriate. CPD III Custody and bail 14D: RELATIONSHIP BETWEEN THE BAIL ACT OFFENCE AND FURTHER REMANDS ON BAIL OR IN CUSTODY 14D.1 The court at which the defendant is produced should, where practicable and legally permissible, arrange to have all outstanding cases brought before it (including those from different courts) for the purpose of progressing matters and dealing with the question of bail. This is likely to be practicable in the magistrates' court where cases can easily be transferred from one magistrates' court to another. Practice is likely to vary in the Crown Court. If the defendant appears before a different court, for example because he is charged with offences committed in another area, and it is not practicable for all matters to be concluded by that court then the defendant may be remanded on bail or in custody, if appropriate, to appear before the first court for the outstanding offences to be dealt with. 14D.2 When a defendant has been convicted of a Bail Act offence, the court should review the remand status of the defendant, including the conditions of that bail, in respect of all outstanding proceedings against the defendant. 14D.3 Failure by the defendant to surrender or a conviction for failing to surrender to bail in connection with the main proceedings will be significant factors weighing against the re-granting of bail. 14D.4 Whether or not an immediate custodial sentence has been imposed for the Bail Act offence, the court may, having reviewed the defendant’s remand status, also remand the defendant in custody in the main proceedings. CPD III Custody and bail 14E: TRIALS IN ABSENCE 14E.1 A defendant has a right, in general, to be present and to be represented at his trial. However, a defendant may choose not to exercise those rights, such as by voluntarily absenting himself and failing to instruct his lawyers adequately so that they can represent him. 14E.2 The court has a discretion as to whether a trial should take place or continue in the defendant’s absence and must exercise its discretion with due regard for the interests of justice. The overriding concern must be to ensure that such a trial is as fair as circumstances permit and leads to a just outcome. If the defendant’s absence is due to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing or continuing the trial. Trials on Indictment 14E.3 Proceeding in the absence of a defendant is a step which ought normally to be taken only if it is unavoidable. The court must exercise its discretion as to whether a trial should take place or continue in the defendant’s absence with the utmost care and caution. Due regard should be had to the judgment of Lord Bingham in R v Jones [2002] UKHL 5 , [2003] 1 A.C. 1 , [2002] 2 Cr. App. R. 9. Circumstances to be taken into account before proceeding include: i) the conduct of the defendant, ii) the disadvantage to the defendant, iii) the public interest, taking account of the inconvenience and hardship to witnesses, and especially to any complainant, of a delay; if the witnesses have attended court and are ready to give evidence, that will weigh in favour of continuing with the trial, iv) the effect of any delay, v) whether the attendance of the defendant could be secured at a later hearing, and vii) the likely outcome if the defendant is found guilty. Even if the defendant is voluntarily absent, it is still generally desirable that he or she is represented. Trials in the Magistrates’ Courts 14E.4 Section 11 of the Magistrates’ Courts Act 1980 applies. If either party is absent, the court should follow the procedure at CrimPR 24.12. Subject to the provisions of the statute, the principles outlined above are applicable. Benches and legal advisers will note that the presumption at rule 24.12(3)(a) does not apply if the defendant is under 18 years of age. CPD III Custody and bail 14F: FORFEITURE OF MONIES LODGED AS SECURITY OR PLEDGED BY A SURETY/ESTREATMENT OF RECOGNIZANCES 14F.1 A surety undertakes to forfeit a sum of money if the defendant fails to surrender as required. Considerable care must be taken to explain that obligation and the consequences before a surety is taken. This system, in one form or another, has great antiquity. It is immensely valuable. A court concerned that a defendant will fail to surrender will not normally know that defendant personally, nor indeed much about him. When members of the community who do know the defendant say they trust him to surrender and are prepared to stake their own money on that trust, that can have a powerful influence on the decision of the court as to whether or not to grant bail. There are two important side-effects. The first is that the surety will keep an eye on the defendant, and report to the authorities if there is a concern that he will abscond. In those circumstances, the surety can withdraw. The second is that a defendant will be deterred from absconding by the knowledge that if he does so then his family or friends who provided the surety will lose their money. In the experience of the courts, it is comparatively rare for a defendant to fail to surrender when meaningful sureties are in place. 14F.2 Any surety should have the opportunity to make representations to the defendant to surrender himself, in accordance with their obligations. 14F.3 The court should not wait or adjourn a decision on estreatment of sureties or securities until such time, if any, that the bailed defendant appears before the court. It is possible that any defendant who apparently absconds may have a defence of reasonable cause to the allegation of failure to surrender. If that happens, then any surety or security estreated would be returned. The reason for proceeding is that the defendant may never surrender, or may not surrender for many years. The court should still consider the sureties’ obligations if that happens. Moreover, the longer the matter is delayed the more probable it is that the personal circumstances of the sureties will change. 14F.4 The court should follow the procedure at CrimPR 14.15. Before the court makes a decision, it should give the sureties the opportunity to make representations, either in person, through counsel or by statement. 14F.5 The court has discretion to forfeit the whole sum, part only of the sum, or to remit the sum. The starting point is that the surety is forfeited in full. It would be unfortunate if this valuable method of allowing a defendant to remain at liberty were undermined. Courts would have less confidence in the efficacy of sureties. It is also important to note that a defendant who absconds without in any way forewarning his sureties does not thereby release them from any or all of their responsibilities. Even if a surety does his best, he remains liable for the full amount, except at the discretion of the court. However, all factors should be taken into account and the following are noted for guidance only: i) The presence or absence of culpability is a factor, but is not in itself a reason to reduce or set aside the obligations entered into by the surety. ii) The means of a surety, and in particular changed means, are relevant. iii) The court should forfeit no more than is necessary, in public policy, to maintain the integrity and confidence of the system of taking sureties. CPD III Custody and bail 14G: BAIL DURING TRIAL 14G.1 The following should be read subject to the Bail Act 1976 . 14G.2 Once a trial has begun the further grant of bail, whether during the short adjournment or overnight, is in the discretion of the trial judge or trial Bench. It may be a proper exercise of this discretion to refuse bail during the short adjournment if the accused cannot otherwise be segregated from witnesses and jurors. 14G.3 An accused who was on bail while on remand should not be refused bail during the trial unless, in the opinion of the court, there are positive reasons to justify this refusal. Such reasons might include: (a) that a point has been reached where there is a real danger that the accused will abscond, either because the case is going badly for him, or for any other reason; (b) that there is a real danger that he may interfere with witnesses, jurors or co-defendants. 14G.4 Once the jury has returned a guilty verdict or a finding of guilt has been made, a further renewal of bail should be decided in the light of the gravity of the offence, any friction between co-defendants and the likely sentence to be passed in all the circumstances of the case. CPD III Custody and bail 14H: CROWN COURT JUDGE’S CERTIFICATON OF FITNESS TO APPEAL AND APPLICATIONS TO THE CROWN COURT FOR BAIL PENDING APPEAL 14H.1 The trial or sentencing judge may grant a certificate of fitness for appeal (see, for example, sections 1(2) (b) and 11(1A) of the Criminal Appeal Act 1968 ); the judge in the Crown Court should only certify cases in exceptional circumstances. The Crown Court judge should use the Criminal Appeal Office Form C (Crown Court Judge’s Certificate of fitness for appeal) which is available to court staff on the HMCTS intranet. 14H.2 The judge may well think it right to encourage the defendant’s advocate to submit to the court, and serve on the prosecutor, before the hearing of the application, a draft of the grounds of appeal which he will ask the judge to certify on Form C. 14H.3 The first question for the judge is then whether there exists a particular and cogent ground of appeal. If there is no such ground, there can be no certificate; and if there is no certificate there can be no bail. A judge should not grant a certificate with regard to sentence merely in the light of mitigation to which he has, in his opinion, given due weight, nor in regard to conviction on a ground where he considers the chance of a successful appeal is not substantial. The judge should bear in mind that, where a certificate is refused, application may be made to the Court of Appeal for leave to appeal and for bail; it is expected that certificates will only be granted in exceptional circumstances. 14H.4 Defence advocates should note that the effect of a grant of a certificate is to remove the need for leave to appeal to be granted by the Court of Appeal. It does not in itself commence the appeal. The completed Form C will be sent by the Crown Court to the Criminal Appeal Office; it is not copied to the parties. The procedures in CrimPR Part 39 should be followed. 14H.5 Bail pending appeal to the Court of Appeal (Criminal Division) may be granted by the trial or sentencing judge if they have certified the case as fit for appeal (see sections 81(1) (f) and 81(1B) of the Senior Courts Act 1981 ). Bail can only be granted in the Crown Court within 28 days of the conviction or sentence which is to be the subject of the appeal and may not be granted if an application for bail has already been made to the Court of Appeal. The procedure for bail to be granted by a judge of the Crown Court pending an appeal is governed by CrimPR Part 14. The Crown Court judge should use the Criminal Appeal Office Form BC (Crown Court Judge’s Order granting bail) which is available to court staff on the HMCTS intranet. 14H.6 The length of the period which might elapse before the hearing of any appeal is not relevant to the grant of a certificate; but, if the judge does decide to grant a certificate, it may be one factor in the decision whether or not to grant bail. If bail is granted, the judge should consider imposing a condition of residence in line with the practice in the Court of Appeal (Criminal Division). CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION IV DISCLOSURE CrimPR Part 15 Disclosure CPD IV Disclosure 15A: DISCLOSURE OF UNUSED MATERIAL 15A.1 Disclosure is a vital part of the preparation for trial, both in the magistrates' courts and in the Crown Court. All parties must be familiar with their obligations, in particular under the Criminal Procedure and Investigations Act 1996 as amended and the Code issued under that Act , and must comply with the relevant judicial protocol and guidelines from the Attorney-General. These documents have recently been revised and the new guidance will be issued shortly as Judicial Protocol on the Disclosure of Unused Material in Criminal Cases and the Attorney-General's Guidelines on Disclosure . The new documents should be read together as complementary, comprehensive guidance. They will be available electronically on the respective websites. 15A.2 In addition, certain procedures are prescribed under CrimPR Part 15 and these should be followed. The notes to Part 15 contain a useful summary of the requirements of the CPIA 1996 as amended. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION V EVIDENCE CrimPR Part 16 Witness statements CPD V Evidence 16A: EVIDENCE BY WRITTEN STATEMENT 16A.1 Where the prosecution proposes to tender written statements in evidence under section 9 of the Criminal Justice Act 1967 , it will frequently be necessary for certain statements to be edited. This will occur either because a witness has made more than one statement whose contents should conveniently be reduced into a single, comprehensive statement, or where a statement contains inadmissible, prejudicial or irrelevant material. Editing of statements must be done by a Crown Prosecutor (or by a legal representative, if any, of the prosecutor if the case is not being conducted by the Crown Prosecution Service) and not by a police officer. Composite statements 16A.2 A composite statement giving the combined effect of two or more earlier statements must be prepared in compliance with the requirements of section 9 of the 1967 Act ; and must then be signed by the witness. Editing single statements 16A.3 There are two acceptable methods of editing single statements. They are:- (a) By marking copies of the statement in a way which indicates the passages on which the prosecution will not rely. This merely indicates that the prosecution will not seek to adduce the evidence so marked. The original signed statement to be tendered to the court is not marked in any way. The marking on the copy statement is done by lightly striking out the passages to be edited, so that what appears beneath can still be read, or by bracketing, or by a combination of both. It is not permissible to produce a photocopy with the deleted material obliterated, since this would be contrary to the requirement that the defence and the court should be served with copies of the signed original statement. Whenever the striking out / bracketing method is used, it will assist if the following words appear at the foot of the frontispiece or index to any bundle of copy statements to be tendered: ‘The prosecution does not propose to adduce evidence of those passages of the attached copy statements which have been struck out and / or bracketed (nor will it seek to do so at the trial unless a notice of further evidence is served)’. (b) By obtaining a fresh statement, signed by the witness, which omits the offending material, applying the procedure for composite statements above. 16A.4 In most cases where a single statement is to be edited, the striking out/ bracketing method will be the more appropriate, but the taking of a fresh statement is preferable in the following circumstances: (a) When a police (or other investigating) officer’s statement contains details of interviews with more suspects than are eventually charged, a fresh statement should be prepared and signed, omitting all details of interview with those not charged except, insofar as it is relevant, for the bald fact that a certain named person was interviewed at a particular time, date and place. (b) When a suspect is interviewed about more offences than are eventually made the subject of charges, a fresh statement should be prepared and signed, omitting all questions and answers about the uncharged offences unless either they might appropriately be taken into consideration, or evidence about those offences is admissible on the charges preferred. It may, however, be desirable to replace the omitted questions and answers with a phrase such as: ‘After referring to some other matters, I then said, “… … …” ’, so as to make it clear that part of the interview has been omitted. (c) A fresh statement should normally be prepared and signed if the only part of the original on which the prosecution is relying is only a small proportion of the whole, although it remains desirable to use the alternative method if there is reason to believe that the defence might itself wish to rely, in mitigation or for any other purpose, on at least some of those parts which the prosecution does not propose to adduce. (d) When the passages contain material which the prosecution is entitled to withhold from disclosure to the defence. 16A.5 Prosecutors should also be aware that, where statements are to be tendered under section 9 of the 1967 Act in the course of summary proceedings, there will be a need to prepare fresh statements excluding inadmissible or prejudicial material, rather than using the striking out or bracketing method. 16A.6 Whenever a fresh statement is taken from a witness and served in evidence, the earlier, unedited statement(s) becomes unused material and should be scheduled and reviewed for disclosure to the defence in the usual way. CPD V Evidence 16B: VIDEO RECORDED EVIDENCE IN CHIEF 16B.1 The procedure for making an application for leave to admit into evidence video recorded evidence in chief under section 27 of the Youth Justice and Criminal Evidence Act 1999 is given in CrimPR Part 18. 16B.2 Where a court, on application by a party to the proceedings or of its own motion, grants leave to admit a video recording in evidence under section 27(1) of the 1999 Act , it may direct that any part of the recording be excluded ( section 27(2) and (3)). When such direction is given, the party who made the application to admit the video recording must edit the recording in accordance with the judge’s directions and send a copy of the edited recording to the appropriate officer of the Crown Court and to every other party to the proceedings. 16B.3 Where a video recording is to be adduced during proceedings before the Crown Court, it should be produced and proved by the interviewer, or any other person who was present at the interview with the witness at which the recording was made. The applicant should ensure that such a person will be available for this purpose, unless the parties have agreed to accept a written statement in lieu of attendance by that person. 16B.4 Once a trial has begun, if, by reason of faulty or inadequate preparation or for some other cause, the procedures set out above have not been properly complied with and an application is made to edit the video recording, thereby necessitating an adjournment for the work to be carried out, the court may, at its discretion, make an appropriate award of costs. CPD V Evidence 16C: EVIDENCE OF AUDIO AND VIDEO RECORDED INTERVIEWS 16C.1 The interrogation of suspects is primarily governed by Code C, one of the Codes of Practice under the Police and Criminal Evidence Act 1984 (‘PACE’). Under that Code, interviews must normally be contemporaneously recorded. Under PACE Code E, interviews conducted at a police station concerning an indictable offence must normally be audio-recorded. In practice, most interviews are audio-recorded under Code E, or video-recorded under Code F, and it is best practice to do so. The questioning of terrorism suspects is governed separately by Code H. The Codes are available electronically on the Home Office website. 16C.2 Where a record of the interview is to be prepared, this should be in accordance with the current national guidelines, as envisaged by Note 5A of Code E. 16C.3 If the prosecution wishes to rely on the defendant’s interview in evidence, the prosecution should seek to agree the record with the defence. Both parties should have received a copy of the audio or video recording, and can check the record against the recording. The record should be edited (see below) if inadmissible matters are included within it and, in particular if the interview is lengthy, the prosecution should seek to shorten it by editing or summary. 16C.4 If the record is agreed there is usually no need for the audio or video recording to be played in court. It is a matter for the discretion of the trial judge, but usual practice is for edited copies of the record to be provided to the court, and to the jury if there is one, and for the prosecution advocate to read the interview with the interviewing officer or the officer in the case, as part of the officer’s evidence in chief, the officer reading the interviewer and the advocate reading the defendant and defence representative. In the magistrates’ court, the Bench sometimes retire to read the interview themselves, and the document is treated as if it had been read aloud in court. This is permissible, but CrimPR 24.5 should be followed. 16C.5 Where the prosecution intends to adduce the interview in evidence, and agreement between the parties has not been reached about the record, sufficient notice must be given to allow consideration of any amendment to the record, or the preparation of any transcript of the interview, or any editing of a recording for the purpose of playing it in court. To that end, the following practice should be followed. (a) Where the defence is unable to agree a record of interview or transcript (where one is already available) the prosecution should be notified at latest at the Plea and Case Management Hearing (‘PCMH’), with a view to securing agreement to amend. The notice should specify the part to which objection is taken, or the part omitted which the defence consider should be included. A copy of the notice should be supplied to the court within the period specified above. The PCMH form inquires about the admissibility of the defendant’s interview and shortening by editing or summarising for trial. (b) If agreement is not reached and it is proposed that the audio or video recording or part of it be played in court, notice should be given to the prosecution by the defence as ordered at the PCMH, in order that the advocates for the parties may agree those parts of the audio or video recording that should not be adduced and that arrangements may be made, by editing or in some other way, to exclude that material. A copy of the notice should be supplied to the court. (c) Notice of any agreement reached should be supplied to the court by the prosecution, as soon as is practicable. 16C.6 Alternatively, if, the prosecution advocate proposes to play the audio or video recording or part of it, the prosecution should at latest at the PCMH, notify the defence and the court. The defence should notify the prosecution and the court within 14 days of receiving the notice, if they object to the production of the audio or video recording on the basis that a part of it should be excluded. If the objections raised by the defence are accepted, the prosecution should prepare an edited recording, or make other arrangements to exclude the material part; and should notify the court of the arrangements made. 16C.7 If the defendant wishes to have the audio or video recording or any part of it played to the court, the defence should provide notice to the prosecution and the court at latest at the PCMH. The defence should also, at that time, notify the prosecution of any proposals to edit the recording and seek the prosecution’s agreement to those amendments. 16C.8 Whenever editing or amendment of a record of interview or of an audio or video recording or of a transcript takes place, the following general principles should be followed: (i) Where a defendant has made a statement which includes an admission of one or more other offences, the portion relating to other offences should be omitted unless it is or becomes admissible in evidence; (ii) Where the statement of one defendant contains a portion which exculpates him or her and partly implicates a co-defendant in the trial, the defendant making the statement has the right to insist that everything relevant which is exculpatory goes before the jury. In such a case the judge must be consulted about how best to protect the position of the co-defendant. 16C.9 If it becomes necessary for either party to access the master copy of the audio or video recording, they should give notice to the other party and follow the procedure in PACE Code E at section 6 . 16C.10 If there is a challenge to the integrity of the master recording, notice and particulars should be given to the court and to the prosecution by the defence as soon as is practicable. The court may then, at its discretion, order a case management hearing or give such other directions as may be appropriate. 16C.11 If an audio or video recording is to be adduced during proceedings before the Crown Court, it should be produced and proved in a witness statement by the interviewing officer or any other officer who was present at the interview at which the recording was made. The prosecution should ensure that the witness is available to attend court if required by the defence in the usual way. 16C.12 It is the responsibility of the prosecution to ensure that there is a person available to operate any audio or video equipment needed during the course of the proceedings. Subject to their other responsibilities, the court staff may be able to assist. 16C.13 If either party wishes to present audio or video evidence, that party must ensure, in advance of the hearing, that the evidence is in a format that is compatible with the court’s equipment, and that the material to be used does in fact function properly in the relevant court room. 16C.14 In order to avoid the necessity for the court to listen to or watch lengthy or irrelevant material before the relevant part of a recording is reached, counsel shall indicate to the equipment operator those parts of a recording which it may be necessary to play. Such an indication should, so far as possible, be expressed in terms of the time track or other identifying process used by the interviewing police force and should be given in time for the operator to have located those parts by the appropriate point in the trial. 16C.15 Once a trial has begun, if, by reason of faulty preparation or for some other cause, the procedures above have not been properly complied with, and an application is made to amend the record of interview or transcript or to edit the recording, as the case may be, thereby making necessary an adjournment for the work to be carried out, the court may make at its discretion an appropriate award of costs. 16C.16 Where a case is listed for hearing on a date which falls within the time limits set out above, it is the responsibility of the parties to ensure that all the necessary steps are taken to comply with this Practice Direction within such shorter period as is available. CrimPR Part 17 Witness summonses, warrants and orders CPD V Evidence 17A: WARDS OF COURT AND CHILDREN SUBJECT TO CURRENT FAMILY PROCEEDINGS 17A.1 Where police wish to interview a child who is subject to current family proceedings, leave of the Family Court is only required where such an interview may lead to a child disclosing information confidential to those proceedings and not otherwise available to the police under Working Together to Safeguard Children (March 2013), a guide to inter-agency working to safeguard and promote the welfare of children: www.workingtogetheronline.co.uk/chapters/contents.html 17A.2 Where exceptionally the child to be interviewed or called as a witness in criminal proceedings is a Ward of Court then the leave of the court which made the wardship order will be required. 17A.3 Any application for leave in respect of any such child must be made to the court in which the relevant family proceedings are continuing and must be made on notice to the parents, any actual carer (e.g. relative or foster parent) and, in care proceedings, to the local authority and the guardian. In private proceedings the Family Court Reporter (if appointed) should be notified. 17A.4 If the police need to interview the child without the knowledge of another party (usually a parent or carer), they may make the application for leave without giving notice to that party. 17A.5 Where leave is given the order should ordinarily give leave for any number of interviews that may be required. However, anything beyond that actually authorised will require a further application. 17A.6 Exceptionally the police may have to deal with complaints by or allegations against such a child immediately without obtaining the leave of the court as, for example (a) a serious offence against a child (like rape) where immediate medical examination and collection of evidence is required; or (b) where the child is to be interviewed as a suspect. When any such action is necessary, the police should, in respect of each and every interview, notify the parents and other carer (if any) and the Family Court Reporter (if appointed). In care proceedings the local authority and guardian should be notified. The police must comply with all relevant Codes of Practice when conducting any such interview. 17A.7 The Family Court should be appraised of the position at the earliest reasonable opportunity by one of the notified parties and should thereafter be kept informed of any criminal proceedings. 17A.8 No evidence or document in the family proceedings or information about the proceedings should be disclosed into criminal proceedings without the leave of the Family Court. CrimPR Part 18 Measures to assist a witness or defendant to give evidence CPD V Evidence 18A: MEASURES TO ASSIST A WITNESS OR DEFENDANT TO GIVE EVIDENCE 18A.1 For special measures applications, the procedures at CrimPR Part 18 should be followed. However, assisting a vulnerable witness to give evidence is not merely a matter of ordering the appropriate measure. Further directions about vulnerable people in the courts, ground rules hearings and intermediaries are given in paragraphs I 3D to 3G. 18A.2 Special measures need not be considered or ordered in isolation. The needs of the individual witness should be ascertained, and a combination of special measures may be appropriate. For example, if a witness who is to give evidence by live link wishes, screens can be used to shield the live link screen from the defendant and the public, as would occur if screens were being used for a witness giving evidence in the court room. CPD V Evidence 18B: WITNESSES GIVING EVIDENCE BY LIVE LINK 18B.1 A special measures direction for the witness to give evidence by live link may also provide for a specified person to accompany the witness (CrimPR 18.10(f)). In determining who this should be, the court must have regard to the wishes of the witness. The presence of a supporter is designed to provide emotional support to the witness, helping reduce the witness’s anxiety and stress and contributing to the ability to give best evidence. It is preferable for the direction to be made well before the trial begins and to ensure that the designated person is available on the day of the witness’s testimony so as to provide certainty for the witness. 18B.2 An increased degree of flexibility is appropriate as to who can act as supporter. This can be anyone known to and trusted by the witness who is not a party to the proceedings and has no detailed knowledge of the evidence in the case. The supporter may be a member of the Witness Service but need not be an usher or court official. Someone else may be appropriate. 18B.3 The usher should continue to be available both to assist the witness and the witness supporter, and to ensure that the court’s requirements are properly complied with in the live link room. 18B.4 In order to be able to express an informed view about special measures, the witness is entitled to practise speaking using the live link (and to see screens in place). Simply being shown the room and equipment is inadequate for this purpose. 18B.5 If, with the agreement of the court, the witness has chosen not to give evidence by live link but to do so in the court room, it may still be appropriate for a witness supporter to be selected in the same way, and for the supporter to sit alongside the witness while the witness is giving evidence. CPD V Evidence 18C: VISUALLY RECORDED INTERVIEWS: MEMORY REFRESHING AND WATCHING AT A DIFFERENT TIME FROM THE JURY 18C.1 Witnesses are entitled to refresh their memory from their statement or visually recorded interview. The court should enquire at the PTPH or other case management hearing about arrangements for memory refreshing. The witness’s first viewing of the visually recorded interview can be distressing or distracting. It should not be seen for the first time immediately before giving evidence. Depending upon the age and vulnerability of the witness several competing issues have to be considered and it may be that the assistance of the intermediary is needed to establish exactly how memory refreshing should be managed. 18C.2 If the interview is ruled inadmissible, the court must decide what constitutes an acceptable alternative method of memory refreshing. 18C.3 Decisions about how, when and where refreshing should take place should be court-led and made on a case-by-case basis in respect of each witness. General principles to be addressed include: i. the venue for viewing. The delicate balance between combining the court familiarisation visit and watching the DVD, and having them on two separate occasions, needs to be considered in respect of each witness as combining the two may lead to ‘information overload’. Refreshing need not necessarily take place within the court building but may be done, for example, at the police ABE suite. ii. requiring that any viewing is monitored by a person (usually the officer in the case) who will report to the court about anything said by the witness. iii. whether it is necessary for the witness to see the DVD more than once for the purpose of refreshing. The court will need to ask the advice of the intermediary, if any, with respect to this. iv. arrangements, if the witness will not watch the DVD at the same time as the trial bench or judge and jury, for the witness to watch it before attending to be cross examined, (depending upon their ability to retain information this may be the day before). 18C.4 There is no legal requirement that the witness should watch the interview at the same time as the trial bench or jury. Increasingly, this is arranged to occur at a different time, with the advantages that breaks can be taken as needed without disrupting the trial, and cross-examination starts while the witness is fresh. An intermediary may be present to facilitate communication but should not act as the independent person designated to take a note and report to the court if anything is said. Where the viewing takes place at a different time from that of the jury, the witness is sworn just before cross-examination, asked if he or she has watched the interview and if its contents are ‘true’ (or other words tailored to the witness’s understanding). CPD V Evidence 18D: WITNESS ANONYMITY ORDERS 18D.1 This direction supplements CrimPR 18.18 to 18.22, which govern the procedure to be followed on an application for a witness anonymity order. The court’s power to make such an order is conferred by the Coroners and Justice Act 2009 (in this section, ‘ the Act ’); section 87 of the Act provides specific relevant powers and obligations. 18D.2 As the Court of Appeal stated in R v Mayers and Others [2008] EWCA Crim 2989 , [2009] 1 W.L.R. 1915 , [2009] 1 Cr. App. R. 30 and emphasised again in R v Donovan and Kafunda [2012] EWCA Crim 2749 , unreported, ‘a witness anonymity order is to be regarded as a special measure of the last practicable resort’: Lord Chief Justice, Lord Judge. In making such an application, the prosecution’s obligations of disclosure ‘go much further than the ordinary duties of disclosure’ ( R v Mayers ); reference should be made to the Judicial Protocol on Disclosure, see paragraph IV 15A.1. Case management 18D.3 Where such an application is proposed, with the parties’ active assistance the court should set a realistic timetable, in accordance with the duties imposed by CrimPR 3.2 and 3.3. Where possible, the trial judge should determine the application, and any hearing should be attended by the parties’ trial advocates. Service of evidence and disclosure of prosecution material pending an application 18D.4 Where the prosecutor proposes an application for a witness anonymity order, it is not necessary for that application to have been determined before the proposed evidence is served. In most cases, an early indication of what that evidence will be if an order is made will be consistent with a party’s duties under CrimPR 1.2 and 3.3. The prosecutor should serve with the other prosecution evidence a witness statement setting out the proposed evidence, redacted in such a way as to prevent disclosure of the witness’ identity, as permitted by section 87(4) of the Act . Likewise the prosecutor should serve with other prosecution material disclosed under the Criminal Procedure and Investigations Act 1996 any such material appertaining to the witness, similarly redacted. The application 18D.5 An application for a witness anonymity order should be made as early as possible and within the period for which CrimPR 18.3 provides. The application, and any hearing of it, must comply with the requirements of that rule and with those of rule 18.19. In accordance with CrimPR 1.2 and 3.3, the applicant must provide the court with all available information relevant to the considerations to which the Act requires a court to have regard. Response to the application 18D.6 A party upon whom an application for a witness anonymity order is served must serve a response in accordance with CrimPR 18.22. That period may be extended or shortened in the court’s discretion: CrimPR 18.5. 18D.7 To avoid the risk of injustice, a respondent, whether the Prosecution or a defendant, must actively assist the court. If not already done, a respondent defendant should serve a defence statement under section 5 or 6 of the Criminal Procedure and Investigations Act 1996 , so that the court is fully informed of what is in issue. When a defendant makes an application for a witness anonymity order the prosecutor should consider the continuing duty to disclose material under section 7 A of the Criminal Procedure and Investigations Act 1996 ; therefore a prosecutor’s response should include confirmation that that duty has been considered. Great care should be taken to ensure that nothing disclosed contains anything that might reveal the witness’ identity. A respondent prosecutor should provide the court with all available information relevant to the considerations to which the Act requires a court to have regard, whether or not that information falls to be disclosed under the 1996 Act . Determination of the application 18D.8 All parties must have an opportunity to make oral representations to the court on an application for a witness anonymity order: section 87(6) of the Act . However, a hearing may not be needed if none is sought: CrimPR 18.18(1)(a). Where, for example, the witness is an investigator who is recognisable by the defendant but known only by an assumed name, and there is no likelihood that the witness’ credibility will be in issue, then the court may indicate a provisional decision and invite representations within a defined period, usually 14 days, including representations about whether there should be a hearing. In such a case, where the parties do not object the court may make an order without a hearing. Or where the court provisionally considers an application to be misconceived, an applicant may choose to withdraw it without requiring a hearing. Where the court directs a hearing of the application then it should allow adequate time for service of the representations in response. 18D.9 The hearing of an application for a witness anonymity order usually should be in private: CrimPR 18.18(1)(a). The court has power to hear a party in the absence of a defendant and that defendant’s representatives: section 87(7) of the Act and rule 18.18(1)(b). In the Crown Court, a recording of the proceedings will be made, in accordance with CrimPR 5.5. The Crown Court officer must treat such a recording in the same way as the recording of an application for a public interest ruling. It must be kept in secure conditions, and the arrangements made by the Crown Court officer for any transcription must impose restrictions that correspond with those under CrimPR 5.5(2). 18D.10 Where confidential supporting information is presented to the court before the last stage of the hearing, the court may prefer not to read that information until that last stage. 18D.11 The court may adjourn the hearing at any stage, and should do so if its duty under CrimPR 3.2 so requires. 18D.12 On a prosecutor’s application, the court is likely to be assisted by the attendance of a senior investigator or other person of comparable authority who is familiar with the case. 18D.13 During the last stage of the hearing it is essential that the court test thoroughly the information supplied in confidence in order to satisfy itself that the conditions prescribed by the Act are met. At that stage, if the court concludes that this is the only way in which it can satisfy itself as to a relevant condition or consideration, exceptionally it may invite the applicant to present the proposed witness to be questioned by the court. Any such questioning should be carried out at such a time, and the witness brought to the court in such a way, as to prevent disclosure of his or her identity. 18D.14 The court may ask the Attorney General to appoint special counsel to assist. However, it must be kept in mind that, ‘Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant’: R v H [2004] UKHL 3 , [2004] 2 A.C. 134 (at paragraph 22), [2004] 2 Cr. App. R. 10. Whether to accede to such a request is a matter for the Attorney General, and adequate time should be allowed for the consideration of such a request. 18D.15 The Court of Appeal in R v Mayers ‘emphasise[d] that all three conditions, A, B and C, must be met before the jurisdiction to make a witness anonymity order arises. Each is mandatory. Each is distinct.’ The Court also noted that if there is more than one anonymous witness in a case any link, and the nature of any link, between the witnesses should be investigated: ‘questions of possible improper collusion between them, or cross-contamination of one another, should be addressed.’ 18D.16 Following a hearing the court should announce its decision on an application for a witness anonymity order in the parties’ presence and in public: CrimPR 18.4(2). The court should give such reasons as it is possible to give without revealing the witness’ identity. In the Crown Court, the court will be conscious that reasons given in public may be reported and reach the jury. Consequently, the court should ensure that nothing in its decision or its reasons could undermine any warning it may give jurors under section 90(2) of the Act . A record of the reasons must be kept. In the Crown Court, the announcement of those reasons will be recorded. Order 18D.17 Where the court makes a witness anonymity order, it is essential that the measures to be taken are clearly specified in a written record of that order approved by the court and issued on its behalf. An order made in a magistrates’ court must be recorded in the court register, in accordance with CrimPR 5.4. 18D.18 Self-evidently, the written record of the order must not disclose the identity of the witness to whom it applies. However, it is essential that there be maintained some means of establishing a clear correlation between witness and order, and especially where in the same proceedings witness anonymity orders are made in respect of more than one witness, specifying different measures in respect of each. Careful preservation of the application for the order, including the confidential part, ordinarily will suffice for this purpose. Discharge or variation of the order 18D.19 Section 91 of the Act allows the court to discharge or vary a witness anonymity order: on application, if there has been a material change of circumstances since the order was made or since any previous variation of it; or on its own initiative. CrimPR 18.21 allows the parties to apply for the variation of a pre-trial direction where circumstances have changed. 18D.20 The court should keep under review the question of whether the conditions for making an order are met. In addition, consistently with the parties’ duties under CrimPR 1.2 and 3.3, it is incumbent on each, and in particular on the applicant for the order, to keep the need for it under review. 18D.21 Where the court considers the discharge or variation of an order, the procedure that it adopts should be appropriate to the circumstances. As a general rule, that procedure should approximate to the procedure for determining an application for an order. The court may need to hear further representations by the applicant for the order in the absence of a respondent defendant and that defendant’s representatives. Retention of confidential material 18D.22 If retained by the court, confidential material must be stored in secure conditions by the court officer. Alternatively, subject to such directions as the court may give, such material may be committed to the safe keeping of the applicant or any other appropriate person in exercise of the powers conferred by CrimPR 18.6. If the material is released to any such person, the court should ensure that it will be available to the court at trial. CrimPR Part 19 Expert evidence CPD V Evidence 19A: EXPERT EVIDENCE 19A.1 Expert opinion evidence is admissible in criminal proceedings at common law if, in summary, (i) it is relevant to a matter in issue in the proceedings; (ii) it is needed to provide the court with information likely to be outside the court’s own knowledge and experience; and (iii) the witness is competent to give that opinion. 19A.2 Legislation relevant to the introduction and admissibility of such evidence includes section 30 of the Criminal Justice Act 1988 , which provides that an expert report shall be admissible as evidence in criminal proceedings whether or not the person making it gives oral evidence, but that if he or she does not give oral evidence then the report is admissible only with the leave of the court; and CrimPR Part 19 , which in exercise of the powers conferred by section 81 of the Police and Criminal Evidence Act 1984 and section 20 of the Criminal Procedure and Investigations Act 1996 requires the service of expert evidence in advance of trial in the terms required by those rules. 19A.3 In the Law Commission report entitled ‘Expert Evidence in Criminal Proceedings in England and Wales’, report number 325, published in March, 2011, the Commission recommended a statutory test for the admissibility of expert evidence. However, in its response the government declined to legislate. The common law, therefore, remains the source of the criteria by reference to which the court must assess the admissibility and weight of such evidence; and CrimPR 19.4 lists those matters with which an expert’s report must deal, so that the court can conduct an adequate such assessment. 19A.4 In its judgment in R v Dlugosz and Others [2013] EWCA Crim 2 , the Court of Appeal observed (at paragraph 11): “It is essential to recall the principle which is applicable, namely in determining the issue of admissibility, the court must be satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted. If there is then the court leaves the opposing views to be tested before the jury.” Nothing at common law precludes assessment by the court of the reliability of an expert opinion by reference to substantially similar factors to those the Law Commission recommended as conditions of admissibility, and courts are encouraged actively to enquire into such factors. 19A.5 Therefore factors which the court may take into account in determining the reliability of expert opinion, and especially of expert scientific opinion, include: (a) the extent and quality of the data on which the expert’s opinion is based, and the validity of the methods by which they were obtained; (b) if the expert’s opinion relies on an inference from any findings, whether the opinion properly explains how safe or unsafe the inference is (whether by reference to statistical significance or in other appropriate terms); (c) if the expert’s opinion relies on the results of the use of any method (for instance, a test, measurement or survey), whether the opinion takes proper account of matters, such as the degree of precision or margin of uncertainty, affecting the accuracy or reliability of those results; (d) the extent to which any material upon which the expert’s opinion is based has been reviewed by others with relevant expertise (for instance, in peer-reviewed publications), and the views of those others on that material; (e) the extent to which the expert’s opinion is based on material falling outside the expert’s own field of expertise; (f) the completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion (including information as to the context of any facts to which the opinion relates); (g) if there is a range of expert opinion on the matter in question, where in the range the expert’s own opinion lies and whether the expert’s preference has been properly explained; and (h) whether the expert’s methods followed established practice in the field and, if they did not, whether the reason for the divergence has been properly explained. 19A.6 In addition, in considering reliability, and especially the reliability of expert scientific opinion, the court should be astute to identify potential flaws in such opinion which detract from its reliability, such as: (a) being based on a hypothesis which has not been subjected to sufficient scrutiny (including, where appropriate, experimental or other testing), or which has failed to stand up to scrutiny; (b) being based on an unjustifiable assumption; (c) being based on flawed data; (d) relying on an examination, technique, method or process which was not properly carried out or applied, or was not appropriate for use in the particular case; or (e) relying on an inference or conclusion which has not been properly reached. CrimPR Part 21 Evidence of bad character CPD V Evidence 21A: SPENT CONVICTIONS 21A.1 The effect of section 4(1) of the Rehabilitation of Offenders Act 1974 is that a person who has become a rehabilitated person for the purpose of the Act in respect of a conviction (known as a ‘spent’ conviction) shall be treated for all purposes in law as a person who has not committed, or been charged with or prosecuted for, or convicted of or sentenced for, the offence or offences which were the subject of that conviction. 21A.2 Section 4(1) of the 1974 Act does not apply, however, to evidence given in criminal proceedings: section 7(2) (a). During the trial of a criminal charge, reference to previous convictions (and therefore to spent convictions) can arise in a number of ways. The most common is when a bad character application is made under the Criminal Justice Act 2003 . When considering bad character applications under the 2003 Act , regard should always be had to the general principles of the Rehabilitation of Offenders Act 1974 . 21A.3 On conviction, the court must be provided with a statement of the defendant’s record for the purposes of sentence. The record supplied should contain all previous convictions, but those which are spent should, so far as practicable, be marked as such. No one should refer in open court to a spent conviction without the authority of the judge, which authority should not be given unless the interests of justice so require. When passing sentence the judge should make no reference to a spent conviction unless it is necessary to do so for the purpose of explaining the sentence to be passed. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION VI TRIAL CrimPR Part 24 Trial and sentence in a magistrates' court CPD VI Trial 24A: ROLE OF THE JUSTICES’ CLERK/LEGAL ADVISER 24A.1 The role of the justices’ clerk/legal adviser is a unique one, which carries with it independence from direction when undertaking a judicial function and when advising magistrates. These functions must be carried out in accordance with the Bangalore Principles of Judicial Conduct (judicial independence, impartiality, integrity, propriety, ensuring fair treatment and competence and diligence). More specifically, duties must be discharged in accordance with the relevant professional Code of Conduct and the Legal Adviser Competence Framework. 24A.2 A justices’ clerk is responsible for: (a) the legal advice tendered to the justices within the area; (b) the performance of any of the functions set out below by any member of his staff acting as justices’ legal adviser; (c) ensuring that competent advice is available to justices when the justices’ clerk is not personally present in court; and (d) ensuring that advice given at all stages of proceedings and powers exercised (including those delegated to justices’ legal advisers) take into account the court’s duty to deal with cases justly and actively to manage the case. 24A.3 Where a person other than the justices’ clerk (a justices’ legal adviser), who is authorised to do so, performs any of the functions referred to in this direction, he or she will have the same duties, powers and responsibilities as the justices’ clerk. The justices’ legal adviser may consult the justices’ clerk, or other person authorised by the justices’ clerk for that purpose, before tendering advice to the bench. If the justices’ clerk or that person gives any advice directly to the bench, he or she should give the parties or their advocates an opportunity of repeating any relevant submissions, prior to the advice being given. 24A.4 When exercising judicial powers, a justices’ clerk or legal adviser is acting in exactly the same capacity as a magistrate. The justices’ clerk may delegate powers to a justices’ legal adviser in accordance with the relevant statutory authority. The scheme of delegation must be clear and in writing, so that all justices’ legal advisers are certain of the extent of their powers. Once a power is delegated, judicial discretion in an individual case lies with the justices’ legal adviser exercising the power. When exercise of a power does not require the consent of the parties, a justices’ clerk or legal adviser may deal with and decide a contested issue or may refer that issue to the court. 24A.5 It shall be the responsibility of the justices’ clerk or legal adviser to provide the justices with any advice they require to perform their functions justly, whether or not the advice has been requested, on: (a) questions of law; (b) questions of mixed law and fact; (c) matters of practice and procedure; (d) the process to be followed at sentence and the matters to be taken into account, together with the range of penalties and ancillary orders available, in accordance with the relevant sentencing guidelines; (e) any relevant decisions of the superior courts or other guidelines; (f) the appropriate decision-making structure to be applied in any given case; and (g) other issues relevant to the matter before the court. 24A.6 In addition to advising the justices, it shall be the justices’ legal adviser’s responsibility to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons. 24A.7 The justices’ legal adviser has a duty to assist an unrepresented defendant, see CrimPR 9.4(3)(a), 14.3(2)(a) and 24.15(3)(a), in particular when the court is making a decision on allocation, bail, at trial and on sentence. 24A.8 Where the court must determine allocation, the legal adviser may deal with any aspect of the allocation hearing save for the decision on allocation, indication of sentence and sentence. 24A.9 When a defendant acting in person indicates a guilty plea, the legal adviser must explain the procedure and inform the defendant of their right to address the court on the facts and to provide details of their personal circumstances in order that the court can decide the appropriate sentence. 24A.10 When a defendant indicates a not guilty plea but has not completed the relevant sections of the Magistrates’ Courts Trial Preparation Form, the legal adviser must either ensure that the Form is completed or, in appropriate cases, assist the court to obtain and record the essential information on the form. 24A.11 Immediately prior to the commencement of a trial, the legal adviser must summarise for the court the agreed and disputed issues, together with the way in which the parties propose to present their cases. If this is done by way of pre-court briefing, it should be confirmed in court or agreed with the parties. 24A.12 A justices’ clerk or legal adviser must not play any part in making findings of fact, but may assist the bench by reminding them of the evidence, using any notes of the proceedings for this purpose, and clarifying the issues which are agreed and those which are to be determined. 24A.13 A justices’ clerk or legal adviser may ask questions of witnesses and the parties in order to clarify the evidence and any issues in the case. A legal adviser has a duty to ensure that every case is conducted justly. 24A.14 When advising the justices, the justices’ clerk or legal adviser, whether or not previously in court, should: (a) ensure that he is aware of the relevant facts; and (b) provide the parties with an opportunity to respond to any advice given. 24A.15 At any time, justices are entitled to receive advice to assist them in discharging their responsibilities. If they are in any doubt as to the evidence which has been given, they should seek the aid of their legal adviser, referring to his notes as appropriate. This should ordinarily be done in open court. Where the justices request their adviser to join them in the retiring room, this request should be made in the presence of the parties in court. Any legal advice given to the justices other than in open court should be clearly stated to be provisional; and the adviser should subsequently repeat the substance of the advice in open court and give the parties the opportunity to make any representations they wish on that provisional advice. The legal adviser should then state in open court whether the provisional advice is confirmed or, if it is varied, the nature of the variation. 24A.16 The legal adviser is under a duty to assist unrepresented parties, whether defendants or not, to present their case, but must do so without appearing to become an advocate for the party concerned. The legal adviser should also ensure that members of the court are aware of obligations under the Victims’ Code. 24A.17 The role of legal advisers in fine default proceedings, or any other proceedings for the enforcement of financial orders, obligations or penalties, is to assist the court. They must not act in an adversarial or partisan manner, such as by attempting to establish wilful refusal or neglect or any other type of culpable behaviour, to offer an opinion on the facts, or to urge a particular course of action upon the justices. The expectation is that a legal adviser will ask questions of the defaulter to elicit information which the justices will require to make an adjudication, such as the explanation for the default. A legal adviser may also advise the justices as to the options open to them in dealing with the case. 24A.18 The performance of a legal adviser is subject to regular appraisal. For that purpose the appraiser may be present in the justices’ retiring room. The content of the appraisal is confidential, but the fact that an appraisal has taken place, and the presence of the appraiser in the retiring room, should be briefly explained in open court. CrimPR Parts 25 and 26 Trial and sentence in the Crown Court; Jurors CPD VI Trial 26A: Juries: introduction 26A.1 Jury service is an important public duty which individual members of the public are chosen at random to undertake. As the Court has acknowledged: “Jury service is not easy; it never has been. It involves a major civic responsibility” ( R v Thompson [2010] EWCA Crim 1623 , [9] per Lord Judge CJ, [2011] 1 W.L.R. 200 , [2010] 2 Cr. App. R. 27). Provision of information to prospective jurors 26A.2 HMCTS provide every person summoned as a juror with information about the role and responsibilities of a juror. Prospective jurors are provided with a pamphlet, “Your Guide to Jury Service”, and may also view the film “Your Role as a Juror” online at anytime on the Ministry of Justice YouTube site www.youtube.com/watch?v=JP7slp-X9Pc There is also information at https://www.gov.uk/jury-service/overview CPD VI Trial 26B: JURIES: preliminary Matters arising before jury service commences 26B.1 The effect of section 321 of the Criminal Justice Act 2003 was to remove certain categories of persons from those previously ineligible for jury service (the judiciary and others concerned with the administration of justice) and certain other categories ceased to be eligible for excusal as of right, (such as members of Parliament and medical professionals). The normal presumption is that everyone, unless ineligible or disqualified, will be required to serve when summoned to do so. Excusal and deferral 26B.2 The jury summoning officer is empowered to defer or excuse individuals in appropriate circumstances and in accordance with the HMCTS Guidance for summoning officers when considering deferral and excusal applications (2009): http://www.official-documents.gov.uk/document/other/9780108508400/9780108508400.pdf Appeals from officer’s refusal to excuse or postpone jury service 26B.3 CrimPR 26.1 governs the procedure for a person’s appeal against a summoning officer’s decision in relation to excusal or deferral of jury service. Provision of information at court 26B.4 The court officer is expected to provide relevant further information to jurors on their arrival in the court centre. CPD VI Trial 26C: JURIES: Eligibility English language ability 26C.1 Under the Juries Act 1974 section 10 , a person summoned for jury service who applies for excusal on the grounds of insufficient understanding of English may, where necessary, be brought before the judge. 26C.2 The court may exercise its power to excuse any person from jury service for lack of capacity to act effectively as a juror because of an insufficient understanding of English. 26C.3 The judge has the discretion to stand down jurors who are not competent to serve by reason of a personal disability: R v Mason [1981] QB 881 , (1980) 71 Cr. App. R. 157 ; R v Jalil [2008] EWCA Crim 2910 , [2009] 2 Cr. App. R. (S.) 40. Jurors with professional and public service commitments 26C.4 The legislative change in the Criminal Justice Act 2003 means that more individuals are eligible to serve as jurors, including those previously excused as of right or ineligible. Judges need to be vigilant to the need to exercise their discretion to adjourn a trial, excuse or discharge a juror should the need arise. 26C.5 Whether or not an application has already been made to the jury summoning officer for deferral or excusal, it is also open to the person summoned to apply to the court to be excused. Such applications must be considered with common sense and according to the interests of justice. An explanation should be required for an application being much later than necessary. Serving police officers, prison officers or employees of prosecuting agencies 26C.6 A judge should always be made aware at the stage of jury selection if any juror in waiting is in these categories. The juror summons warns jurors in these categories that they will need to alert court staff. 26C.7 In the case of police officers an inquiry by the judge will have to be made to assess whether a police officer may serve as a juror. Regard should be had to: whether evidence from the police is in dispute in the case and the extent to which that dispute involves allegations made against the police; whether the potential juror knows or has worked with the officers involved in the case; whether the potential juror has served or continues to serve in the same police units within the force as those dealing with the investigation of the case or is likely to have a shared local service background with police witnesses in a trial. 26C.8 In the case of a serving prison officer summoned to a court, the judge will need to inquire whether the individual is employed at a prison linked to that court or is likely to have special knowledge of any person involved in a trial. 26C.9 The judge will need to ensure that employees of prosecuting authorities do not serve on a trial prosecuted by the prosecuting authority by which they are employed. They can serve on a trial prosecuted by another prosecuting authority: R v Abdroikov [2007] UKHL 37 , [2007] 1 W.L.R. 2679 , [2008] 1 Cr. App. R. 21; Hanif v UK [2011] ECHR 2247, (2012)55 E.H.R.R. 16; R v L [2011] EWCA Crim 65 , [2011] 1 Cr. App. R. 27. Similarly, a serving police officer can serve where there is no particular link between the court and the station where the police officer serves. 26C.10 Potential jurors falling into these categories should be excused from jury service unless there is a suitable alternative court/trial to which they can be transferred. CPD VI Trial 26D: JURIES: Precautionary measures before swearing 26D.1 There should be a consultation with the advocates as to the questions, if any, it may be appropriate to ask potential jurors. Topics to be considered include: a. the availability of jurors for the duration of a trial that is likely to run beyond the usual period for which jurors are summoned; b. whether any juror knows the defendant or parties to the case; c. whether potential jurors are so familiar with any locations that feature in the case that they may have, or come to have, access to information not in evidence; d. in cases where there has been any significant local or national publicity, whether any questions should be asked of potential jurors. 26D.2 Judges should however exercise caution. At common law a judge has a residual discretion to discharge a particular juror who ought not to be serving, but this discretion can only be exercised to prevent an individual juror who is not competent from serving. It does not include a discretion to discharge a jury drawn from particular sections of the community or otherwise to influence the overall composition of the jury. However, if there is a risk that there is widespread local knowledge of the defendant or a witness in a particular case, the judge may, after hearing submissions from the advocates, decide to exclude jurors from particular areas to avoid the risk of jurors having or acquiring personal knowledge of the defendant or a witness. Length of trial 26D.3 Where the length of the trial is estimated to be significantly longer than the normal period of jury service, it is good practice for the trial judge to enquire whether the potential jurors on the jury panel foresee any difficulties with the length and if the judge is satisfied that the jurors’ concerns are justified, he may say that they are not required for that particular jury. This does not mean that the judge must excuse the juror from sitting at that court altogether, as it may well be possible for the juror to sit on a shorter trial at the same court. Juror with potential connection to the case or parties 26D.4 Where a juror appears on a jury panel, it will be appropriate for a judge to excuse the juror from that particular case where the potential juror is personally concerned with the facts of the particular case, or is closely connected with a prospective witness. Judges need to exercise due caution as noted above. CPD VI Trial 26E: JURIES: Swearing in jurors Swearing Jury for trial 26E.1 All jurors shall be sworn or affirm. All jurors shall take the oath or affirmation in open court in the presence of one another. If, as a result of the juror’s delivery of the oath or affirmation, a judge has concerns that a juror has such difficulties with language comprehension or reading ability that might affect that juror’s capacity to undertake his or her duties, bearing in mind the likely evidence in the trial, the judge should make appropriate inquiry of that juror. Form of oath or affirmation 26E.2 Each juror should have the opportunity to indicate to the court the Holy Book on which he or she wishes to swear. The precise wording will depend on his or her faith as indicated to the court. 26E.3 Any person who prefers to affirm shall be permitted to make a solemn affirmation instead. The wording of the affirmation is: ‘I do solemnly, sincerely and truly declare and affirm that I will faithfully try the defendant and give a true verdict according to the evidence’. CPD VI Trial 26F: JURIES: Ensuring an effective jury panel Adequacy of numbers 26F.1 By section 6 of the Juries Act 1974 , if it appears to the court that a jury to try any issue before the court will be, or probably will be, incomplete, the court may, if the court thinks fit, require any persons who are in, or in the vicinity of, the court, to be summoned (without any written notice) for jury service up to the number needed (after allowing for any who may not be qualified under section 1 of the Act , and for excusals and challenges) to make up a full jury. CPD VI Trial 26G: JURIES: Preliminary Instructions to jurors 26G.1 After the jury has been sworn and the defendant has been put in charge the judge will want to give directions to the jury on a number of matters. 26G.2 Jurors can be expected to follow the instructions diligently. As the Privy Council stated in Taylor [2013] UKPC 8 , [2013] 1 W.L.R. 1144 : The assumption must be that the jury understood and followed the direction that they were given: ... the experience of trial judges is that juries perform their duty according to law. ...[T]he law proceeds on the footing that the jury, acting in accordance with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. To conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions by the trial judge. At the start of the trial 26G.3 Trial judges should instruct the jury on general matters which will include the time estimate for the trial and normal sitting hours. The jury will always need clear guidance on the following: i. The need to try the case only on the evidence and remain faithful to their oath or affirmation; ii. The prohibition on internet searches for matters related to the trial, issues arising or the parties; iii. The importance of not discussing any aspect of the case with anyone outside their own number or allowing anyone to talk to them about it, whether directly, by telephone, through internet facilities such as Facebook or Twitter or in any other way; iv. The importance of taking no account of any media reports about the case; v. The collective responsibility of the jury. As the Lord Chief Justice made clear in R v Thompson and Others [2010] EWCA Crim 1623 , [2011] 1 W.L.R. 200 , [2010] 2 Cr. App. R. 27: [T]here is a collective responsibility for ensuring that the conduct of each member is consistent with the jury oath and that the directions of the trial judge about the discharge of their responsibilities are followed…. The collective responsibility of the jury for its own conduct must be regarded as an integral part of the trial itself. vi. The need to bring any concerns, including concerns about the conduct of other jurors, to the attention of the judge at the time, and not to wait until the case is concluded. The point should be made that, unless that is done while the case is continuing, it may not be possible to deal with the problem at all. Subsequent reminder of the jury instructions 26G.4 Judges should consider reminding jurors of these instructions as appropriate at the end of each day and in particular when they separate after retirement. CPD VI Trial 26H: JURIES: Discharge of a juror for personal reasons 26H.1 Where a juror unexpectedly finds him or herself in difficult professional or personal circumstances during the course of the trial, the juror should be encouraged to raise such problems with the trial judge. This might apply, for example, to a parent whose childcare arrangements unexpectedly fail, or a worker who is engaged in the provision of services the need for which can be critical, or a Member of Parliament who has deferred their jury service to an apparently more convenient time, but is unexpectedly called back to work for a very important reason. Such difficulties would normally be raised through a jury note in the normal manner. 26H.2 In such circumstances, the judge must exercise his or her discretion according to the interests of justice and the requirements of each individual case. The judge must decide for him or herself whether the juror has presented a sufficient reason to interfere with the course of the trial. If the juror has presented a sufficient reason, in longer trials it may well be possible to adjourn for a short period in order to allow the juror to overcome the difficulty. 26H.3 In shorter cases, it may be more appropriate to discharge the juror and to continue the trial with a reduced number of jurors. The power to do this is implicit in section 16(1) of the Juries Act 1974 . In unusual cases (such as an unexpected emergency arising overnight) a juror need not be discharged in open court. The good administration of justice depends on the co-operation of jurors, who perform an essential public service. All such applications should be dealt with sensitively and sympathetically and the trial judge should always seek to meet the interests of justice without unduly inconveniencing any juror. CPD VI Trial 26J: JURIES: VIEWS 26J.1 In each case in which it is necessary for the jury to view a location, the judge should produce ground rules for the view, after discussion with the advocates. The rules should contain details of what the jury will be shown and in what order and who, if anyone, will be permitted to speak and what will be said. The rules should also make provision for the jury to ask questions and receive a response from the judge, following submissions from the advocates, while the view is taking place. CPD VI Trial 26K: JURIES: DIRECTIONS to jury before retirement 26K.1 At the conclusion of the summing up, a number of directions are required. In particular it is important that judges direct the jury: i. That their verdict must be unanimous in respect of each count and each defendant. ii. Not to think about “majority verdicts” unless and until given further directions. iii. That they will need to select one of their number to chair their discussions and speak on their behalf. CPD VI Trial 26L: JURIES: Jury access to exhibits and evidence in retirement 26L.1 At the end of the summing up it is also important that the judge informs the jury that any exhibits they wish to have will be made available to them. 26L.2 Judges should invite submissions from the advocates as to what material the jury should retire with and what material before them should be removed, such as the transcript of an ABE interview (which should usually be removed from the jury as soon as the recording has been played.) 26L.3 Judges will also need to inform the jury of the opportunity to view certain audio, DVD or CCTV evidence that has been played (excluding, for example ABE interviews). If possible, it may be appropriate for the jury to be able to view any such material in the jury room alone, such as on a sterile laptop, so that they can discuss it freely; this will be a matter for the judge’s discretion, following discussion with counsel. CPD VI Trial 26M: JURIES: Jury irregularities 26M.1 This practice direction replaces the protocol regarding jury irregularities issued by the President of the Queen’s Bench Division in November 2012, and the subsequent practice direction, in light of sections 20 A to 20D of the Juries Act 1974 and the associated repeal of section 8 of the Contempt of Court Act 1981 (confidentiality of jury’s deliberations). It applies to juries sworn on or after 13 April 2015. 26M.2 A jury irregularity is anything that may prevent one or more jurors from remaining faithful to their oath or affirmation to ‘faithfully try the defendant and give a true verdict according to the evidence.’ Jury irregularities take many forms. Some are clear-cut such as a juror conducting research about the case or an attempt to suborn or intimidate a juror. Others are less clear-cut – for example, when there is potential bias or friction between jurors. 26M.3 A jury irregularity may involve contempt of court and / or the commission of an offence by or in relation to a juror. 26M.4 Under the previous version of this practice direction, the Crown Court required approval from the Vice-President of the Court of Appeal (Criminal Division) (CACD) prior to providing a juror’s details to the police for the purposes of an investigation into a jury irregularity. Such approval is no longer required. Provision of a juror’s details to the police is now a matter for the Crown Court. JURY IRREGULARITY DURING TRIAL 26M.5 A jury irregularity that comes to light during a trial may impact on the conduct of the trial. It may also involve contempt of court and / or the commission of an offence by or in relation to a juror. The primary concern of the judge should be the impact on the trial. 26M.6 A jury irregularity should be drawn to the attention of the judge in the absence of the jury as soon as it becomes known. 26M.7 When the judge becomes aware of a jury irregularity, the judge should follow the procedure set out below: STEP 1: Consider isolating juror(s) STEP 2: Consult with advocates STEP 3: Consider appropriate provisional measures (which may include surrender / seizure of electronic communications devices and taking defendant into custody) STEP 4: Seek to establish basic facts of jury irregularity STEP 5: Further consult with advocates STEP 6: Decide what to do in relation to conduct of trial STEP 7: Consider ancillary matters (contempt in face of court and / or commission of criminal offence) STEP 1: Consider isolating juror(s) 26M.8 The judge should consider whether the juror(s) concerned should be isolated from the rest of the jury, particularly if the juror(s) may have conducted research about the case. 26M.9 If two or more jurors are concerned, the judge should consider whether they should also be isolated from each other, particularly if one juror has made an accusation against another. STEP 2: Consult with advocates 26M.10 The judge should consult with the advocates and invite submissions about appropriate provisional measures (Step 3) and how to go about establishing the basic facts of the jury irregularity (Step 4). 26M.11 The consultation should be conducted - in open court; - in the presence of the defendant; and - with all parties represented unless there is good reason not to do so. 26M.12 If the jury irregularity involves a suspicion about the conduct of the defendant or another party, there may be good reason for the consultation to take place in the absence of the defendant or the other party. There may also be good reason for it to take place in private. If so, the proper location is in the court room, with DARTS recording, rather than in the judge’s room. 26M.13 If the jury irregularity relates to the jury’s deliberations, the judge should warn all those present that it is an offence to disclose, solicit or obtain information about a jury’s deliberations ( section 20 D(1) of the Juries Act 1974 – see paragraphs 26M.35 to 26M.38 regarding the offence and exceptions). This would include disclosing information about the jury’s deliberations divulged in court during consultation with the advocates (Step 2 and Step 5) or when seeking to establish the basic facts of the jury irregularity (Step 4). The judge should emphasise that the advocates, court staff and those in the public gallery would commit the offence by explaining to another what is said in court about the jury’s deliberations. STEP 3: Consider appropriate provisional measures 26M.14 The judge should consider appropriate provisional measures which may include surrender / seizure of electronic communications devices and taking the defendant into custody. • Surrender / seizure of electronic communications devices 26M.15 The judge should consider whether to make an order under section 15 A(1) of the Juries Act 1974 requiring the juror(s) concerned to surrender electronic communications devices, such as mobile telephones or smart phones. 26M.16 Having made an order for surrender, the judge may require a court security officer to search a juror to determine whether the juror has complied with the order. Section 54 A of the Courts Act 2003 contains the court security officer’s powers of search and seizure. 26M.17 Section 15 A(5) of the Juries Act 1974 provides that it is contempt of court for a juror to fail to surrender an electronic communications device in accordance with an order for surrender (see paragraphs 26M.29 to 26M.30 regarding the procedure for dealing with such a contempt). 26M.18 Any electronic communications device surrendered or seized under these provisions should be kept safe by the court until returned to the juror or handed to the police as evidence. • Taking defendant into custody 26M.19 If the defendant is on bail, and the jury irregularity involves a suspicion about the defendant’s conduct, the judge should consider taking the defendant into custody. If that suspicion involves an attempt to suborn or intimidate a juror, the defendant should be taken into custody. STEP 4: Seek to establish basic facts of jury irregularity 26M.20 The judge should seek to establish the basic facts of the jury irregularity for the purpose of determining how to proceed in relation to the conduct of the trial. The judge’s enquiries may involve having the juror(s) concerned write a note of explanation and / or questioning the juror(s). The judge may enquire whether the juror(s) feel able to continue and remain faithful to their oath or affirmation. If there is questioning, each juror should be questioned separately, in the absence of the rest of the jury, unless there is good reason not to do so. 26M.21 In accordance with paragraphs 26M.10 to 26M.13, the enquiries should be conducted in open court; in the presence of the defendant; and with all parties represented unless there is good reason not to do so. STEP 5: Further consult with advocates 26M.22 The judge should further consult with the advocates and invite submissions about how to proceed in relation to the conduct of the trial and what should be said to the jury (Step 6). 26M.23 In accordance with paragraphs 26M.10 to 26M.13, the consultation should be conducted in open court; in the presence of the defendant; and with all parties represented unless there is good reason not to do so. STEP 6: Decide what to do in relation to conduct of trial 26M.24 When deciding how to proceed, the judge may take time to reflect. 26M.25 Considerations may include the stage the trial has reached. The judge should be alert to attempts by the defendant or others to thwart the trial. In cases of potential bias, the judge should consider whether a fair minded and informed observer would conclude that there was a real possibility that the juror(s) or jury would be biased ( Porter v Magill [2001] UKHL 67 , [2002] 2 AC 357 ). 26M.26 In relation to the conduct of the trial, there are three possibilities: 1. Take no action and continue with the trial If so, the judge should consider what, if anything, to say to the jury. For example, the judge may reassure the jury nothing untoward has happened or remind them their verdict is a decision of the whole jury and that they should try to work together. Anything said should be tailored to the circumstances of the case. 2. Discharge the juror(s) concerned and continue with the trial If so, the judge should consider what to say to the discharged juror(s) and the jurors who remain. All jurors should be warned not to discuss what has happened. 3. Discharge the whole jury If so, the judge should consider what to say to the jury and they should be warned not to discuss what has happened. If the judge is satisfied that jury tampering has taken place, depending on the circumstances, the judge may continue the trial without a jury ( section 46(3) of the Criminal Justice Act 2003 ) or order a new trial without a jury ( section 46(5) of the Criminal Justice Act 2003 ). Alternatively, the judge may re-list the trial. If there is a real and present danger of jury tampering in the new trial, the prosecution may apply for a trial without a jury ( section 44 of the Criminal Justice Act 2003 ). STEP 7: Consider ancillary matters 26M.27 A jury irregularity may also involve contempt in the face of the court and / or the commission of a criminal offence. The possibilities include the following: - Contempt in the face of the court by a juror - An offence by a juror or a non-juror under the Juries Act 1974 Offences that may be committed by jurors are researching the case, sharing research, engaging in prohibited conduct or disclosing information about the jury's deliberations ( sections 20 A to 20D of the Juries Act 1974 ). Non-jurors may commit the offence of disclosing, soliciting or obtaining information about the jury's deliberations ( section 20 D of the Juries Act 1974 ). - An offence by juror or a non-juror other than under the Juries Act 1974 A juror may commit an offence such as assault or theft. A non-juror may commit an offence in relation to a juror such as attempting to pervert the course of justice – for example, if the defendant or another attempts to suborn or intimidate a juror. • Contempt in the face of the court by a juror 26M.28 If a juror commits contempt in the face of the court, the juror's conduct may also constitute an offence. If so, the judge should decide whether to deal with the juror summarily under the procedure for contempt in the face of the court or refer the matter to the Attorney General’s Office or the police (see paragraphs 26M.31 and 26M.33). 26M.29 In the case of a minor and clear contempt in the face of the court, the judge may deal with the juror summarily. The judge should follow the procedure in CrimPR 48.5 to 48.8. The judge should also have regard to the practice direction regarding contempt of court issued in March 2015 (Practice Direction: Committal for Contempt of Court – Open Court), which emphasises the principle of open justice in relation to proceedings for contempt before all courts. 26M.30 If a juror fails to comply with an order for surrender of an electronic communications device (see paragraphs 26M.15 to 26M.18), the judge should deal with the juror summarily following the procedure for contempt in the face of the court. • Offence by a juror or non-juror under the Juries Act 1974 26M.31 If it appears that an offence under the Juries Act 1974 may have been committed by a juror or non-juror (and the matter has not been dealt with summarily under the procedure for contempt in the face of the court), the judge should contact the Attorney General’s Office to consider a police investigation, setting out the position neutrally. The officer in the case should not be asked to investigate. Contact details for the Attorney General’s Office are set out at the end of this practice direction. 26M.32 If relevant to an investigation, any electronic communications device surrendered or seized pursuant to an order for surrender should be passed to the police as soon as practicable. • Offence by a juror or non-juror other than under the Juries Act 1974 26M.33 If it appears that an offence, other than an offence under the Juries Act 1974 , may have been committed by a juror or non-juror (and the matter has not been dealt with summarily under the procedure for contempt in the face of the court), the judge or a member of court staff should contact the police setting out the position neutrally. The officer in the case should not be asked to investigate. 26M.34 If relevant to an investigation, any electronic communications device surrendered or seized pursuant to an order for surrender should be passed to the police as soon as practicable. Other matters to consider • Jury deliberations 26M.35 In light of the offence of disclosing, soliciting or obtaining information about a jury’s deliberations ( section 20 D(1) of the Juries Act 1974 ), great care is required if a jury irregularity relates to the jury’s deliberations. 26M.36 During the trial, there are exceptions to this offence that enable the judge (and only the judge) to: - Seek to establish the basic facts of a jury irregularity involving the jury’s deliberations (Step 4); and - Disclose information about the jury’s deliberations to the Attorney General’s Office if it appears that an offence may have been committed (Step 7). 26M.37 With regard to seeking to establish the basic facts of a jury irregularity involving the jury’s deliberations (Step 4), it is to be noted that during the trial it is not an offence for the judge to disclose, solicit or obtain information about the jury’s deliberations for the purposes of dealing with the case ( sections 20 E(2)(a) and 20G(1) of the Juries Act 1974 ). 26M.38 With regard to disclosing information about the jury’s deliberations to the Attorney General’s Office if it appears that an offence may have been committed (Step 7), it is to be noted that during the trial: - It is not an offence for the judge to disclose information about the jury’s deliberations for the purposes of an investigation by a relevant investigator into whether an offence or contempt of court has been committed by or in relation to a juror ( section 20 E(2)(b) of the Juries Act 1974 ); and - A relevant investigator means a police force or the Attorney General ( section 20 E(5) of the Juries Act 1974 ). • Minimum number of jurors 26M.39 If it is decided to discharge one or more jurors (Step 6), a minimum of nine jurors must remain if the trial is to continue ( section 16(1) of the Juries Act 1974 ). • Preparation of statement by judge 26M.40 If a jury irregularity occurs, and the trial continues, the judge should have regard to the remarks of Lord Hope in R v Connors and Mirza [2004] UKHL 2 at [127] and [128], [2004] 1 AC 1118 , [2004] 2 Cr App R 8 and consider whether to prepare a statement that could be used in an application for leave to appeal or an appeal relating to the jury irregularity. JURY IRREGULARITY AFTER JURY DISCHARGED 26M.41 A jury irregularity that comes to light after the jury has been discharged may involve the commission of an offence by or in relation to a juror. It may also provide a ground of appeal. 26M.42 A jury irregularity after the jury has been discharged may come to the attention of the: - Trial judge or court - Registrar of Criminal Appeals (the Registrar) - Prosecution - Defence • Role of the trial judge or court 26M.43 The judge has no jurisdiction in relation to a jury irregularity that comes to light after the jury has been discharged ( R v Thompson and others [2010] EWCA Crim 1623 , [2011] 1 WLR 200 , [2010] 2 Cr App R 27A). The jury will be deemed to have been discharged when all verdicts on all defendants have been delivered or when the jury has been discharged from giving all verdicts on all defendants. 26M.44 The judge will be functus officio in relation to a jury irregularity that comes to light during an adjournment between verdict and sentence. The judge should proceed to sentence unless there is good reason not to do so. 26M.45 In practice, a jury irregularity often comes to light when the judge or court receives a communication from a former juror. 26M.46 If a jury irregularity comes to the attention of a judge or court after the jury has been discharged, and regardless of the result of the trial, the judge or a member of court staff should contact the Registrar setting out the position neutrally. Any communication from a former juror should be forwarded to the Registrar. Contact details for the Registrar are set out at the end of this practice direction. • Role of the Registrar 26M.47 If a jury irregularity comes to the attention of the Registrar after the jury has been discharged, and regardless of the result of the trial, the Registrar should consider if it appears that an offence may have been committed by or in relation to a juror. The Registrar should also consider if there may be a ground of appeal. 26M. 48 When deciding how to proceed, particularly in relation to a communication from a former juror, the Registrar may seek the direction of the Vice ‐ President of the Court of Appeal (Criminal Division) (CACD) or another judge of the CACD in accordance with instructions from the Vice-President. 26M.49 If it appears that an offence may have been committed by or in relation to a juror, the Registrar should contact the Private Office of the Director of Public Prosecutions to consider a police investigation. 26M.50 If there may be a ground of appeal, the Registrar should inform the defence. 26M.51 If a communication from a former juror is not of legal significance, the Registrar should respond explaining that no action is required. An example of such a communication is if it is restricted to a general complaint about the verdict from a dissenting juror or an expression of doubt or second thoughts. • Role of the prosecution 26M.52 If a jury irregularity comes to the attention of the prosecution after the jury has been discharged, which may provide a ground of appeal, they should notify the defence in accordance with their duties to act fairly and assist in the administration of justice ( R v Makin [2004] EWCA Crim 1607 , 148 SJLB 821). • Role of the defence 26M.53 If a jury irregularity comes to the attention of the defence after the jury has been discharged, which provides an arguable ground of appeal, an application for leave to appeal may be made. Other matters to consider • Jury deliberations 26M.54 In light of the offence of disclosing, soliciting or obtaining information about a jury’s deliberations ( section 20 D(1) of the Juries Act 1974 ), great care is required if a jury irregularity relates to the jury’s deliberations. 26M.55 After the jury has been discharged, there are exceptions to this offence that enable a judge, a member of court staff, the Registrar, the prosecution and the defence to disclose information about the jury’s deliberations if it appears that an offence may have been committed by or in relation to a juror or if there may be a ground of appeal. 26M.56 For example, it is to be noted that: - After the jury has been discharged, it is not an offence for a person to disclose information about the jury’s deliberations to defined persons if the person reasonably believes that an offence or contempt of court may have been committed by or in relation to a juror or the conduct of a juror may provide grounds of appeal ( section 20 F(1) (2) of the Juries Act 1974 ). - The defined persons to whom such information may be disclosed are a member of a police force, a judge of the CACD, the Registrar of Criminal Appeals (the Registrar), a judge where the trial took place or a member of court staff where the trial took place who would reasonably be expected to disclose the information only to one of the aforementioned defined persons ( section 20 F(2) of the Juries Act 1974 ). - After the jury has been discharged, it is not an offence for a judge of the CACD or the Registrar to disclose information about the jury’s deliberations for the purposes of an investigation by a relevant investigator into whether an offence or contempt of court has been committed by or in relation to a juror or the conduct of a juror may provide grounds of appeal ( section 20 F(4) of the Juries Act 1974 ). - A relevant investigator means a police force, the Attorney General, the Criminal Cases Review Commission (CCRC) or the Crown Prosecution Service ( section 20 F(10) of the Juries Act 1974 ). • Investigation by the Criminal Cases Review Commission (CCRC) 26M.57 If an application for leave to appeal, or an appeal, includes a ground of appeal relating to a jury irregularity, the Registrar may refer the case to the Full Court to decide whether to direct the CCRC to conduct an investigation under section 23 A of the Criminal Appeal Act 1968 . 26M.58 If the Court directs the CCRC to conduct an investigation, directions should be given as to the scope of the investigation. CONTACT DETAILS Attorney General’s Office [email protected] Telephone: 020 7271 2492 The Registrar [email protected] (Secretary) or [email protected] Telephone: 020 7947 6103 (Secretary) or 020 7947 6011 CPD VI Trial 26N: open justice 26N.1 There must be freedom of access between advocate and judge. Any discussion must, however, be between the judge and the advocates on both sides. If an advocate is instructed by a solicitor who is in court, he or she, too, should be allowed to attend the discussion. This freedom of access is important because there may be matters calling for communication or discussion of such a nature that the advocate cannot, in the client's interest, mention them in open court, e.g. the advocate, by way of mitigation, may wish to tell the judge that reliable medical evidence shows that the defendant is suffering from a terminal illness and may not have long to live. It is imperative that, so far as possible, justice must be administered in open court. Advocates should, therefore, only ask to see the judge when it is felt to be really necessary. The judge must be careful only to treat such communications as private where, in the interests of justice, this is necessary. Where any such discussion takes place it should be recorded, preferably by audio recording. CPD VI Trial 26P: DEFENDANT’S RIGHT TO GIVE OR NOT TO GIVE EVIDENCE 26P.1 At the conclusion of the evidence for the prosecution, section 35(2) of the Criminal Justice and Public Order Act 1994 requires the court to satisfy itself that the defendant is aware that the stage has been reached at which evidence can be given for the defence and that the defendant’s failure to give evidence, or if he does so his failure to answer questions, without a good reason, may lead to inferences being drawn against him. If the defendant is legally represented 26P.2 After the close of the prosecution case, if the defendant’s representative requests a brief adjournment to advise his client on this issue the request should, ordinarily, be granted. When appropriate the judge should, in the presence of the jury, inquire of the representative in these terms: ‘Have you advised your client that the stage has now been reached at which he may give evidence and, if he chooses not to do so or, having been sworn, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from his failure to do so ?’ 26P.3 If the representative replies to the judge that the defendant has been so advised, then the case shall proceed. If counsel replies that the defendant has not been so advised, then the judge shall direct the representative to advise his client of the consequences and should adjourn briefly for this purpose, before proceeding further. If the defendant is not legally represented 26P.4 If the defendant is not represented, the judge shall, at the conclusion of the evidence for the prosecution, in the absence of the jury, indicate what he will say to him in the presence of the jury and ask if he understands and whether he would like a brief adjournment to consider his position. 26P.5 When appropriate, and in the presence of the jury, the judge should say to the defendant: ‘You have heard the evidence against you. Now is the time for you to make your defence. You may give evidence on oath, and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer any question, the jury may draw such inferences as appear proper. That means they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court or lead any agreed evidence. Afterwards you may also, if you wish, address the jury. But you cannot at that stage give evidence. Do you now intend to give evidence?’ CPD VI Trial 26Q: MAJORITY VERDICTS 26Q.1 It is very important that all those trying indictable offences should, so far as possible, adopt a uniform practice when complying with section 17 of the Juries Act 1974 , both in directing the jury in summing-up and also in receiving the verdict or giving further directions after retirement. So far as the summing-up is concerned, it is inadvisable for the judge, and indeed for advocates, to attempt an explanation of the section for fear that the jury will be confused. Before the jury retires, however, the judge should direct the jury in some such words as the following: “As you may know, the law permits me, in certain circumstances, to accept a verdict which is not the verdict of you all. Those circumstances have not as yet arisen, so that when you retire I must ask you to reach a verdict upon which each one of you is agreed. Should, however, the time come when it is possible for me to accept a majority verdict, I will give you a further direction.” 26Q.2 Thereafter, the practice should be as follows: Should the jury return before two hours and ten minutes has elapsed since the last member of the jury left the jury box to go to the jury room (or such longer time as the judge thinks reasonable) (see section 17(4) ), they should be asked: (a) “Have you reached a verdict upon which you are all agreed? Please answer ‘Yes’ or ‘No’. ”; (b) (i) If unanimous, “What is your verdict?”; (ii) If not unanimous, the jury should be sent out again for further deliberation, with a further direction to arrive if possible at a unanimous verdict. 26Q.3 Should the jury return (whether for the first time or subsequently) or be sent for after the two hours and ten minutes (or the longer period) has elapsed, questions (a) and (b)(i) in the paragraph above should be put to them and, if it appears that they are not unanimous, they should be asked to retire once more and told they should continue to endeavour to reach a unanimous verdict but that, if they cannot, the judge will accept a majority verdict as in section 17(1) . 26Q.4 When the jury finally return, they should be asked: (a) “Have at least ten (or nine as the case may be) of you agreed on your verdict?”; (b) If “Yes”, “What is your verdict? Please only answer ‘Guilty’ or ‘Not Guilty’. ”; (c) (i) If “Not Guilty”, accept the verdict without more ado; (ii) If “Guilty”, “Is that the verdict of you all, or by a majority?”; (d) If “Guilty” by a majority, “How many of you agreed to the verdict and how many dissented?” 26Q.5 At whatever stage the jury return, before question (a) is asked, the senior officer of the court present shall state in open court, for each period when the jury was out of court for the purpose of considering their verdict(s), the time at which the last member of the jury left the jury box to go to the jury room and the time of their return to the jury box; and will additionally state in open court the total of such periods. 26Q.6 The reason why section 17(3) is confined to a majority verdict of “Guilty”, and for the somewhat complicated procedure set out above, is to prevent it being known that a verdict of “Not Guilty” is a majority verdict. If the final direction continues to require the jury to arrive, if possible, at a unanimous verdict and the verdict is received as specified, it will not be known for certain that the acquittal is not unanimous. 26Q.7 Where there are several counts (or alternative verdicts) left to the jury the above practice will, of course, need to be adapted to the circumstances. The procedure will have to be repeated in respect of each count (or alternative verdict), the verdict being accepted in those cases where the jury are unanimous and the further direction being given in cases in which they are not unanimous. 26Q.8 Should the jury in the end be unable to agree on a verdict by the required majority, the judge in his discretion will either ask them to deliberate further, or discharge them. 26Q.9 Section 17 will, of course, apply also to verdicts other than “Guilty” or “Not Guilty”, e.g. to special verdicts under the Criminal Procedure (Insanity) Act 1964 , following a finding by the judge that the defendant is unfit to be tried, and special verdicts on findings of fact. Accordingly, in such cases the questions to jurors will have to be suitably adjusted. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION VII SENTENCING CPD VII Sentencing A: PLEAS OF GUILTY IN THE CROWN COURT A.1 Prosecutors and Prosecution Advocates should be familiar with and follow the Attorney-General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise. CPD VII Sentencing B: Determining the factual basis of sentence Where a guilty plea is offered to less than the whole indictment and the prosecution is minded to accept pleas tendered to some counts or to lesser alternative counts. B.1 In some cases, defendants wishing to plead guilty will simply plead guilty to all charges on the basis of the facts as alleged and opened by the prosecution, with no dispute as to the factual basis or the extent of offending. Alternatively a defendant may plead guilty to some of the charges brought; in such a case, the judge will consider whether that plea represents a proper plea on the basis of the facts set out by the papers. B.2 Where the prosecution advocate is considering whether to accept a plea to a lesser charge, the advocate may invite the judge to approve the proposed course of action. In such circumstances, the advocate must abide by the decision of the judge. B.3 If the prosecution advocate does not invite the judge to approve the acceptance by the prosecution of a lesser charge, it is open to the judge to express his or her dissent with the course proposed and invite the advocate to reconsider the matter with those instructing him or her. B.4 In any proceedings where the judge is of the opinion that the course proposed by the advocate may lead to serious injustice, the proceedings may be adjourned to allow the following procedure to be followed: (a) as a preliminary step, the prosecution advocate must discuss the judge’s observations with the Chief Crown Prosecutor or the senior prosecutor of the relevant prosecuting authority as appropriate, in an attempt to resolve the issue; (b) where the issue remains unresolved, the Director of Public Prosecutions or the Director of the relevant prosecuting authority should be consulted; (c) in extreme circumstances the judge may decline to proceed with the case until the prosecuting authority has consulted with the Attorney General, as may be appropriate. B.5 Prior to entering a plea of guilty, a defendant may seek an indication of sentence under the procedure set out in R v Goodyear [2005] EWCA Crim 888 , [2005] 1 W.L.R. 2532 , [2005] 2 Cr. App. R. 20; see below. Where a guilty plea is offered on a limited basis B.6 A defendant may put forward a plea of guilty without accepting all of the facts as alleged by the prosecution. The basis of plea offered may seek to limit the facts or the extent of the offending for which the defendant is to be sentenced. Depending on the view taken by the prosecution, and the content of the offered basis, the case will fall into one of the following categories: (a) a plea of guilty upon a basis of plea agreed by the prosecution and defence; (b) a plea of guilty on a basis signed by the defendant but in respect of which there is no or only partial agreement by the prosecution; (c) a plea of guilty on a basis that contains within it matters that are purely mitigation and which do not amount to a contradiction of the prosecution case; or (d) in cases involving serious or complex fraud, a plea of guilty upon a basis of plea agreed by the prosecution and defence accompanied by joint submissions as to sentence. (a) A plea of guilty upon a basis of plea agreed by the prosecution and defence B.7 The prosecution may reach an agreement with the defendant as to the factual basis on which the defendant will plead guilty, often known as an “agreed basis of plea”. It is always subject to the approval of the court, which will consider whether it adequately and appropriately reflects the evidence as disclosed on the papers, whether it is fair and whether it is in the interests of justice. B.8 R v Underwood [2004] EWCA Crim 2256 , [2005] 1 Cr. App. R. 13, [2005] 1 Cr. App. R. ( S.) 90 outlines the principles to be applied where the defendant admits that he or she is guilty, but disputes the basis of offending alleged by the prosecution: (a) The prosecution may accept and agree the defendant’s account of the disputed facts or reject it in its entirety, or in part. If the prosecution accepts the defendant’s basis of plea, it must ensure that the basis of plea is factually accurate and enables the sentencing judge to impose a sentence appropriate to reflect the justice of the case; (b) In resolving any disputed factual matters, the prosecution must consider its primary duty to the court and must not agree with or acquiesce in an agreement which contains material factual disputes; (c) If the prosecution does accept the defendant’s basis of plea, it must be reduced to writing, be signed by advocates for both sides, and made available to the judge prior to the prosecution’s opening; (d) An agreed basis of plea that has been reached between the parties should not contain matters which are in dispute and any aspects upon which there is not agreement should be clearly identified; (e) On occasion, the prosecution may lack the evidence positively to dispute the defendant’s account, for example, where the defendant asserts a matter outside the knowledge of the prosecution. Simply because the prosecution does not have evidence to contradict the defendant’s assertions does not mean those assertions should be agreed. In such a case, the prosecution should test the defendant’s evidence and submissions by requesting a Newton hearing ( R v Newton (1982) 77 Cr. App. R. 13 , (1982) 4 Cr. App. R. (S.) 388), following the procedure set out below. (f) If it is not possible for the parties to resolve a factual dispute when attempting to reach a plea agreement under this part, it is the responsibility of the prosecution to consider whether the matter should proceed to trial, or to invite the court to hold a Newton hearing as necessary. B.9 R v Underwood emphasises that, whether or not pleas have been “agreed”, the judge is not bound by any such agreement and is entitled of his or her own motion to insist that any evidence relevant to the facts in dispute (or upon which the judge requires further evidence for whatever reason) should be called. Any view formed by the prosecution on a proposed basis of plea is deemed to be conditional on the judge’s acceptance of the basis of plea. B.10 A judge is not entitled to reject a defendant’s basis of plea absent a Newton hearing unless it is determined by the court that the basis is manifestly false and as such does not merit examination by way of the calling of evidence or alternatively the defendant declines the opportunity to engage in the process of the Newton hearing whether by giving evidence on his own behalf or otherwise. (b) a plea of guilty on a basis signed by the defendant but in respect of which there is no or only partial agreement by the prosecution B.11 Where the defendant pleads guilty, but disputes the basis of offending alleged by the prosecution and agreement as to that has not been reached, the following procedure should be followed: (a) The defendant’s basis of plea must be set out in writing, identifying what is in dispute and must be signed by the defendant; (b) The prosecution must respond in writing setting out their alternative contentions and indicating whether or not they submit that a Newton hearing is necessary; (c) The court may invite the parties to make representations about whether the dispute is material to sentence; and (d) If the court decides that it is a material dispute, the court will invite such further representations or evidence as it may require and resolve the dispute in accordance with the principles set out in R v Newton . B.12 Where the disputed issue arises from facts which are within the exclusive knowledge of the defendant and the defendant is willing to give evidence in support of his case, the defence advocate should be prepared to call the defendant. If the defendant is not willing to testify, and subject to any explanation which may be given, the judge may draw such inferences as appear appropriate. B.13 The decision whether or not a Newton hearing is required is one for the judge. Once the decision has been taken that there will be a Newton hearing, evidence is called by the parties in the usual way and the criminal burden and standard of proof applies. Whatever view has been taken by the prosecution, the prosecutor should not leave the questioning to the judge, but should assist the court by exploring the issues which the court wishes to have explored. The rules of evidence should be followed as during a trial, and the judge should direct himself appropriately as the tribunal of fact. Paragraphs 6 to 10 of Underwood provide additional guidance regarding the Newton hearing procedure. (c) a plea of guilty on a basis that contains within it matters that are purely mitigation and which do not amount to a contradiction of the prosecution case B.14 A basis of plea should not normally set out matters of mitigation but there may be circumstances where it is convenient and sensible for the document outlining a basis to deal with facts closely aligned to the circumstances of the offending which amount to mitigation and which may need to be resolved prior to sentence. The resolution of these matters does not amount to a Newton hearing properly so defined and in so far as facts fall to be established the defence will have to discharge the civil burden in order to do so. The scope of the evidence required to resolve issues that are purely matters of mitigation is for the court to determine. (d) Cases involving serious fraud – a plea of guilty upon a basis of plea agreed by the prosecution and defence accompanied by joint submissions as to sentence B.15 This section applies when the prosecution and the defendant(s) to a matter before the Crown Court involving allegations of serious or complex fraud have agreed a basis of plea and seek to make submissions to the court regarding sentence. B.16 Guidance for prosecutors regarding the operation of this procedure is set out in the ‘Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud’, which came into force on 5 May 2009 and is referred to in this direction as the “Attorney General’s Plea Discussion Guidelines”. B.17 In this part – (a) “a plea agreement” means a written basis of plea agreed between the prosecution and defendant(s) in accordance with the principles set out in R v Underwood , supported by admissible documentary evidence or admissions under section 10 of the Criminal Justice Act 1967 ; (b) “a sentencing submission” means sentencing submissions made jointly by the prosecution and defence as to the appropriate sentencing authorities and applicable sentencing range in the relevant sentencing guideline relating to the plea agreement; (c) “serious or complex fraud” includes, but is not limited to, allegations of fraud where two or more of the following are present: (i) the amount obtained or intended to be obtained exceeded £500,000; (ii) there is a significant international dimension; (iii) the case requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes; (iv) the case involves allegations of fraudulent activity against numerous victims; (v) the case involves an allegation of substantial and significant fraud on a public body; (vi) the case is likely to be of widespread public concern; (vii) the alleged misconduct endangered the economic well-being of the United Kingdom, for example by undermining confidence in financial markets. Procedure B.18 The procedure regarding agreed bases of plea outlined above, applies with equal rigour to the acceptance of pleas under this procedure. However, because under this procedure the parties will have been discussing the plea agreement and the charges from a much earlier stage, it is vital that the judge is fully informed of all relevant background to the discussions, charges and the eventual basis of plea. B.19 Where the defendant has not yet appeared before the Crown Court, the prosecutor must send full details of the plea agreement and sentencing submission(s) to the court, at least 7 days in advance of the defendant’s first appearance. Where the defendant has already appeared before the Crown Court, the prosecutor must notify the court as soon as is reasonably practicable that a plea agreement and sentencing submissions under the Attorney General’s Plea Discussion Guidelines are to be submitted. The court should set a date for the matter to be heard, and the prosecutor must send full details of the plea agreement and sentencing submission(s) to the court as soon as practicable, or in accordance with the directions of the court. B.20 The provision to the judge of full details of the plea agreement requires sufficient information to be provided to allow the judge to understand the facts of the case and the history of the plea discussions, to assess whether the plea agreement is fair and in the interests of justice, and to decide the appropriate sentence. This will include, but is not limited to: (i) the plea agreement; (ii) the sentencing submission(s); (iii) all of the material provided by the prosecution to the defendant in the course of the plea discussions; (iv) relevant material provided by the defendant, for example documents relating to personal mitigation; and (v) the minutes of any meetings between the parties and any correspondence generated in the plea discussions. The parties should be prepared to provide additional material at the request of the court. B.21 The court should at all times have regard to the length of time that has elapsed since the date of the occurrence of the events giving rise to the plea discussions, the time taken to interview the defendant, the date of charge and the prospective trial date (if the matter were to proceed to trial) so as to ensure that its consideration of the plea agreement and sentencing submissions does not cause any unnecessary further delay. Status of plea agreement and joint sentencing submissions B.22 Where a plea agreement and joint sentencing submissions are submitted, it remains entirely a matter for the court to decide how to deal with the case. The judge retains the absolute discretion to refuse to accept the plea agreement and to sentence otherwise than in accordance with the sentencing submissions made under the Attorney General’s Plea Discussion Guidelines. B.23 Sentencing submissions should draw the court’s attention to any applicable range in any relevant guideline, and to any ancillary orders that may be applicable. Sentencing submissions should not include a specific sentence or agreed range other than the ranges set out in sentencing guidelines or authorities. B.24 Prior to pleading guilty in accordance with the plea agreement, the defendant(s) may apply to the court for an indication of the likely maximum sentence under the procedure set out below (a ‘ Goodyear indication’). B.25 In the event that the judge indicates a sentence or passes a sentence which is not within the submissions made on sentencing, the plea agreement remains binding. B.26 If the defendant does not plead guilty in accordance with the plea agreement, or if a defendant who has pleaded guilty in accordance with a plea agreement, successfully applies to withdraw his plea under CrimPR 25.5, the signed plea agreement may be treated as confession evidence, and may be used against the defendant at a later stage in these or any other proceedings. Any credit for a timely guilty plea may be lost. The court may exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude any such evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. B.27 Where a defendant has failed to plead guilty in accordance with a plea agreement, the case is unlikely to be ready for trial immediately. The prosecution may have been commenced earlier than it otherwise would have been, in reliance upon the defendant's agreement to plead guilty. This is likely to be a relevant consideration for the court in deciding whether or not to grant an application to adjourn or stay the proceedings to allow the matter to be prepared for trial in accordance with the protocol on the ‘Control and Management of Heavy Fraud and other Complex Criminal Cases’, or as required. CPD VII Sentencing C: Indications of sentence : R v Goodyear C.1 Prior to pleading guilty, it is open to a defendant in the Crown Court to request from the judge an indication of the maximum sentence that would be imposed if a guilty plea were to be tendered at that stage in the proceedings, in accordance with the guidance in R v Goodyear [2005] EWCA Crim 888 , [2005] 1 W.L.R. 2532 , [2005] 2 Cr. App. R. 20. The defence should notify the court and the prosecution of the intention to seek an indication in advance of any hearing. C.2 Attention is drawn to the guidance set out in paragraphs 53 and following of R v Goodyear . The objective of the Goodyear guidelines is to safeguard against the creation or appearance of judicial pressure on a defendant. Any advance indication given should be the maximum sentence if a guilty plea were to be tendered at that stage of the proceedings only; the judge should not indicate the maximum possible sentence following conviction by a jury after trial. The judge should only give a Goodyear indication if one is requested by the defendant, although the judge can, in an appropriate case, remind the defence advocate of the defendant’s entitlement to seek an advance indication of sentence. C.3 Whether to give a Goodyear indication, and whether to give reasons for a refusal, is a matter for the discretion of the judge, to be exercised in accordance with the principles outlined by the Court of Appeal in that case. Such indications should normally not be given if there is a dispute as to the basis of plea unless the judge concludes that he or she can properly deal with the case without the need for a Newton hearing. If there is a basis of plea agreed by the prosecution and defence, it must be reduced into writing and a copy provided to the judge. As always, any basis of plea will be subject to the approval of the court. In cases where a dispute arises, the procedure in R v Underwood should be followed prior to the court considering a sentence indication further, as set out above. The judge should not become involved in negotiations about the acceptance of pleas or any agreed basis of plea, nor should a request be made for an indication of the different sentences that might be imposed if various different pleas were to be offered. C.4 There should be no prosecution opening nor should the judge hear mitigation. However, during the sentence indication process the prosecution advocate is expected to assist the court by ensuring that the court has received all of the prosecution evidence, any statement from the victim about the impact of the offence, and any relevant previous convictions. Further, where appropriate, the prosecution should provide references to the relevant statutory powers of the court, relevant sentencing guidelines and authorities, and such other assistance as the court requires. C.5 Attention is drawn to paragraph 70(d) of Goodyear which emphasises that the prosecution “should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.” This prohibition against the Crown indicating its approval of a particular sentence applies in all circumstances when a defendant is being sentenced, including when joint sentencing submissions are made. C.6 An indication, once given, is, save in exceptional circumstances (such as arose in R v Newman [2010] EWCA Crim 1566 , [2011] 1 Cr. App. R. (S.) 68), binding on the judge who gave it, and any other judge, subject to overriding statutory obligations such as those following a finding of “dangerousness”. In circumstances where a judge proposes to depart from a Goodyear indication this must only be done in a way that does not give rise to unfairness (see Newman ). However, if the defendant does not plead guilty, the indication will not thereafter bind the court. C.7 If the offence is a specified offence such that the defendant might be liable to an assessment of ‘dangerousness’ in accordance with the Criminal Justice Act 2003 it is unlikely that the necessary material for such an assessment will be available. The court can still proceed to give an indication of sentence, but should state clearly the limitations of the indication that can be given. C.8 A Goodyear indication should be given in open court in the presence of the defendant but any reference to the hearing is not admissible in any subsequent trial; and reporting restrictions should normally be imposed. CPD VII Sentencing D: FACTS TO BE STATED ON PLEAS OF GUILTY D.1 To enable the press and the public to know the circumstances of an offence of which an accused has been convicted and for which he is to be sentenced, in relation to each offence to which an accused has pleaded guilty the prosecution shall state those facts in open court, before sentence is imposed. CPD VII Sentencing E: CONCURRENT AND CONSECUTIVE SENTENCES E.1 Where a court passes on a defendant more than one term of imprisonment, the court should state in the presence of the defendant whether the terms are to be concurrent or consecutive. Should this not be done, the court clerk should ask the court, before the defendant leaves court, to do so. E.2 If a defendant is, at the time of sentence, already serving two or more consecutive terms of imprisonment and the court intends to increase the total period of imprisonment, it should use the expression ‘consecutive to the total period of imprisonment to which you are already subject’ rather than ‘at the expiration of the term of imprisonment you are now serving’, as the defendant may not then be serving the last of the terms to which he is already subject. E.3 The Sentencing Council has issued a definitive guideline on Totality which should be consulted. Under section 125(1) of the Coroners and Justice Act 2009 , for offences committed after 6 April 2010, the guideline must be followed unless it would be contrary to the interests of justice to do so. CPD VII Sentencing F: VICTIM PERSONAL STATEMENTS F.1 Victims of crime are invited to make a statement, known as a Victim Personal Statement (‘VPS’). The statement gives victims a formal opportunity to say how a crime has affected them. It may help to identify whether they have a particular need for information, support and protection. The court will take the statement into account when determining sentence. In some circumstances, it may be appropriate for relatives of a victim to make a VPS, for example where the victim has died as a result of the relevant criminal conduct. The revised Code of Practice for Victims of Crime, published on 29 October 2013 gives further information about victims’ entitlements within the criminal justice system, and the duties placed on criminal justice agencies when dealing with victims of crime. F.2 When a police officer takes a statement from a victim, the victim should be told about the scheme and given the chance to make a VPS. The decision about whether or not to make a VPS is entirely a matter for the victim; no pressure should be brought to bear on their decision, and no conclusion should be drawn if they choose not to make such a statement. A VPS or a further VPS may be made (in proper s.9 form, see below) at any time prior to the disposal of the case. It will not normally be appropriate for a VPS to be made after the disposal of the case; there may be rare occasions between sentence and appeal when a further VPS may be necessary, for example, when the victim was injured and the final prognosis was not available at the date of sentence. However, VPS after disposal should be confined to presenting up to date factual material, such as medical information, and should be used sparingly. F.3 If the court is presented with a VPS the following approach, subject to the further guidance given by the Court of Appeal in R v Perkins; Bennett; Hall [2013] EWCA Crim 323 , [2013] Crim L.R. 533, should be adopted: a) The VPS and any evidence in support should be considered and taken into account by the court, prior to passing sentence. b) Evidence of the effects of an offence on the victim contained in the VPS or other statement, must be in proper form, that is a witness statement made under section 9 of the Criminal Justice Act 1967 or an expert’s report; and served in good time upon the defendant’s solicitor or the defendant, if he or she is not represented. Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencing court must not make assumptions unsupported by evidence about the effects of an offence on the victim. The maker of a VPS may be cross-examined on its content. c) At the discretion of the court, the VPS may also be read aloud or played in open court, in whole or in part, or it may be summarised. If the VPS is to be read aloud, the court should also determine who should do so. In making these decisions, the court should take account of the victim’s preferences, and follow them unless there is good reason not to do so; examples of this include the inadmissibility of the content or the potentially harmful consequences for the victim or others. Court hearings should not be adjourned solely to allow the victim to attend court to read the VPS. For the purposes of CPD I General matters 5B: Access to information held by the court, a VPS that is read aloud or played in open court in whole or in part should be considered as such, and no longer treated as a confidential document. d) In all cases it will be appropriate for a VPS to be referred to in the course of the sentencing hearing and/or in the sentencing remarks. e) The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victim. The opinions of the victim or the victim’s close relatives as to what the sentence should be are therefore not relevant, unlike the consequences of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them. CPD VII Sentencing G: FAMILIES BEREAVED BY HOMICIDE AND OTHER CRIMINAL CONDUCT G.1 In cases in which the victim has died as a result of the relevant criminal conduct, the victim’s family is not a party to the proceedings, but does have an interest in the case. Bereaved families have particular entitlements under the Code of Practice for Victims of Crime. All parties should have regard to the needs of the victim’s family and ensure that the trial process does not expose bereaved families to avoidable intimidation, humiliation or distress. G.2 In so far as it is compatible with family members’ roles as witnesses, the court should consider the following measures: a) Practical arrangements being discussed with the family and made in good time before the trial, such as seating for family members in the courtroom; if appropriate, in an alternative area, away from the public gallery. b) Warning being given to families if the evidence on a certain day is expected to be particularly distressing. c) Ensuring that appropriate use is made of the scheme for Victim Personal Statements, in accordance with the paragraphs above. G.3 The sentencer should consider providing a written copy of the sentencing remarks to the family after sentence has been passed. Sentencers should tend in favour of providing such a copy, unless there is good reason not to do so, and the copy should be provided as soon as is reasonably practicable after the sentencing hearing. CPD VII Sentencing H: COMMUNITY IMPACT STATEMENTS H.1 A community impact statement may be prepared by the police to make the court aware of particular crime trends in the local area and the impact of these on the local community. H.2 Such statements must be in proper form, that is a witness statement made under section 9 of the Criminal Justice Act 1967 or an expert’s report; and served in good time upon the defendant’s solicitor or the defendant, if he is not represented. H.3 The community impact statement and any evidence in support should be considered and taken into account by the court, prior to passing sentence. The statement should be referred to in the course of the sentencing hearing and/or in the sentencing remarks. Subject to the court’s discretion, the contents of the statement may be summarised or read out in open court. H.4 The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the local community. Opinions as to what the sentence should be are therefore not relevant. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them. H.5 Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencing court must not make assumptions unsupported by evidence about the effects of an offence on the local community. H.6 It will not be appropriate for a Community Impact Statement to be made after disposal of the case but before an appeal. CPD VII Sentencing I: IMPACT STATEMENTS FOR BUSINESSES I.1 Individual victims of crime are invited to make a statement, known as a Victim Personal Statement (‘VPS’), see CPD VII Sentencing F. If the victim, or one of the victims, is a business or enterprise (including charities but excluding public sector bodies), of any size, a nominated representative may make an Impact Statement for Business (‘ISB’). The ISB gives a formal opportunity for the court to be informed how a crime has affected a business. The court will take the statement into account when determining sentence. This does not prevent individual employees from making a VPS about the impact of the same crime on them as individuals. Indeed the ISB should be about the impact on the business exclusively, and the impact on any individual included within a VPS. I.2 When a police officer takes statements about the alleged offence, he or she should also inform the business about the scheme. An ISB may be made to the police at that time, or the ISB template may be downloaded from www.police.uk , completed and emailed or posted to the relevant police contact. Guidance on how to complete the form is available on www.police.uk and on the CPS website. There is no obligation on any business to make an ISB. I.3 An ISB or an updated ISB may be made (in proper s.9 form, see below) at any time prior to the disposal of the case. It will not be appropriate for an ISB to be made after disposal of the case but before an appeal. I.4 A business wishing to make an ISB should consider carefully who to nominate as the representative to make the statement on its behalf. A person making an ISB on behalf of a business, the nominated representative, must be authorised to do so on behalf of the business, either by nature of their position within the business, such as a director or owner, or by having been suitably authorised, such as by the owner or Board of Directors. The nominated representative must also be in a position to give admissible evidence about the impact of the crime on the business. This will usually be through first hand personal knowledge, or using business documents (as defined in section 117 of the Criminal Justice Act 2003 ). The most appropriate person will vary depending on the nature of the crime, and the size and structure of the business and may for example include a manager, director, chief executive or shop owner. I.5 If the nominated representative leaves the business before the case comes to court, he or she will usually remain the representative, as the ISB made by him or her will still provide the best evidence of the impact of the crime, and he or she could still be asked to attend court. Nominated representatives should be made aware of the on-going nature of the role at the time of making the ISB. I.6 If necessary a further ISB may be provided to the police if there is a change in circumstances. This could be made by an alternative nominated representative. However, the new ISB will usually supplement, not replace, the original ISB and again must contain admissible evidence. The prosecutor will decide which ISB to serve on the defence as evidence, and any ISB that is not served in evidence will be included in the unused material and considered for disclosure to the defence. I.7 The ISB must be made in proper form, that is as a witness statement made under section 9 of the Criminal Justice Act 1967 or an expert’s report; and served in good time upon the defendant’s solicitor or the defendant, if he or she is not represented. The maker of an ISB can be cross-examined on its content. I.8 The ISB and any evidence in support should be considered and taken into account by the court, prior to passing sentence. The statement should be referred to in the course of the sentencing hearing and/or in the sentencing remarks. Subject to the court’s discretion, the contents of the statement may be summarised or read out in open court; the views of the business should be taken into account in reaching a decision. I.9 The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victims, including any business victim. Opinions as to what the sentence should be are therefore not relevant. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them. I.10 Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencing court must not make assumptions unsupported by evidence about the effects of an offence on a business. CPD VII Sentencing J: BINDING OVER ORDERS AND CONDITIONAL DISCHARGES J.1 This direction takes into account the judgments of the European Court of Human Rights in Steel v United Kingdom (1999) 28 EHRR 603 , [1998] Crim. L.R. 893 and in Hashman and Harrup v United Kingdom (2000) 30 EHRR 241 , [2000] Crim. L.R. 185. Its purpose is to give practical guidance, in the light of those two judgments, on the practice of imposing binding over orders. The direction applies to orders made under the court’s common law powers, under the Justices of the Peace Act 1361, under section 1(7) of the Justices of the Peace Act 1968 and under section 115 of the Magistrates’ Courts Act 1980 . This direction also gives guidance concerning the court’s power to bind over parents or guardians under section 150 of the Powers of Criminal Courts (Sentencing) Act 2000 and the Crown Court’s power to bind over to come up for judgment. The court’s power to impose a conditional discharge under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 is also covered by this direction. Binding over to keep the peace J.2 Before imposing a binding over order, the court must be satisfied so that it is sure that a breach of the peace involving violence, or an imminent threat of violence, has occurred or that there is a real risk of violence in the future. Such violence may be perpetrated by the individual who will be subject to the order or by a third party as a natural consequence of the individual’s conduct. J.3 In light of the judgment in Hashman , courts should no longer bind an individual over “to be of good behaviour”. Rather than binding an individual over to “keep the peace” in general terms, the court should identify the specific conduct or activity from which the individual must refrain. Written order J.4 When making an order binding an individual over to refrain from specified types of conduct or activities, the details of that conduct or those activities should be specified by the court in a written order, served on all relevant parties. The court should state its reasons for the making of the order, its length and the amount of the recognisance. The length of the order should be proportionate to the harm sought to be avoided and should not generally exceed 12 months. Evidence J.5 Sections 51 to 57 of the Magistrates’ Courts Act 1980 set out the jurisdiction of the magistrates’ court to hear an application made on complaint and the procedure which is to be followed. This includes a requirement under section 53 to hear evidence and the parties, before making any order. This practice should be applied to all cases in the magistrates’ court and the Crown Court where the court is considering imposing a binding over order. The court should give the individual who would be subject to the order and the prosecutor the opportunity to make representations, both as to the making of the order and as to its terms. The court should also hear any admissible evidence the parties wish to call and which has not already been heard in the proceedings. Particularly careful consideration may be required where the individual who would be subject to the order is a witness in the proceedings. J.6 Where there is an admission which is sufficient to found the making of a binding over order and / or the individual consents to the making of the order, the court should nevertheless hear sufficient representations and, if appropriate, evidence, to satisfy itself that an order is appropriate in all the circumstances and to be clear about the terms of the order. J.7 Where there is an allegation of breach of a binding over order and this is contested, the court should hear representations and evidence, including oral evidence, from the parties before making a finding. If unrepresented and no opportunity has been given previously the court should give a reasonable period for the person said to have breached the binding over order to find representation. Burden and standard of proof J.8 The court should be satisfied so that it is sure of the matters complained of before a binding over order may be imposed. Where the procedure has been commenced on complaint, the burden of proof rests on the complainant. In all other circumstances, the burden of proof rests upon the prosecution. J.9 Where there is an allegation of breach of a binding over order, the court should be satisfied on the balance of probabilities that the defendant is in breach before making any order for forfeiture of a recognisance. The burden of proof shall rest on the prosecution. Recognisance J.10 The court must be satisfied on the merits of the case that an order for binding over is appropriate and should announce that decision before considering the amount of the recognisance. If unrepresented, the individual who is made subject to the binding over order should be told he has a right of appeal from the decision. J.11 When fixing the amount of recognisance, courts should have regard to the individual’s financial resources and should hear representations from the individual or his legal representatives regarding finances. J.12 A recognisance is made in the form of a bond giving rise to a civil debt on breach of the order. Refusal to enter into a recognizance J.13 If there is any possibility that an individual will refuse to enter a recognizance, the court should consider whether there are any appropriate alternatives to a binding over order (for example, continuing with a prosecution). Where there are no appropriate alternatives and the individual continues to refuse to enter into the recognisance, the court may commit the individual to custody. In the magistrates’ court, the power to do so will derive from section 1(7) of the Justices of the Peace Act 1968 or, more rarely, from section 115(3) of the Magistrates’ Courts Act 1980 , and the court should state which power it is acting under; in the Crown Court, this is a common law power. J.14 Before the court exercises a power to commit the individual to custody, the individual should be given the opportunity to see a duty solicitor or another legal representative and be represented in proceedings if the individual so wishes. Public funding should generally be granted to cover representation. In the Crown Court this rests with the Judge who may grant a Representation Order. J.15 In the event that the individual does not take the opportunity to seek legal advice, the court shall give the individual a final opportunity to comply with the request and shall explain the consequences of a failure to do so. Antecedents J.16 Courts are reminded of the provisions of section 7(5) of the Rehabilitation of Offenders Act 1974 which excludes from a person’s antecedents any order of the court “with respect to any person otherwise than on a conviction”. Binding over to come up for judgment J.17 If the Crown Court is considering binding over an individual to come up for judgment, the court should specify any conditions with which the individual is to comply in the meantime and not specify that the individual is to be of good behaviour. J.18 The Crown Court should, if the individual is unrepresented, explain the consequences of a breach of the binding over order in these circumstances. Binding over of parent or guardian J.19 Where a court is considering binding over a parent or guardian under section 150 of the Powers of Criminal Courts (Sentencing) Act 2000 to enter into a recognisance to take proper care of and exercise proper control over a child or young person, the court should specify the actions which the parent or guardian is to take. Security for good behaviour J.20 Where a court is imposing a conditional discharge under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 , it has the power, under section 12(6) to make an order that a person who consents to do so give security for the good behaviour of the offender. When making such an order, the court should specify the type of conduct from which the offender is to refrain. CPD VII Sentencing K: COMMITTAL FOR SENTENCE K.1 CrimPR 28.10 applies when a case is committed to the Crown Court for sentence and specifies the information and documentation that must be provided by the magistrates’ court. On a committal for sentence any reasons given by the magistrates for their decision should be included with the documents. All of these documents should be made available to the judge in the Crown Court if the judge requires them, in order to decide before the hearing questions of listing or representation or the like. They will also be available to the court during the hearing if it becomes necessary or desirable for the court to see what happened in the lower court. CPD VII Sentencing L: IMPOSITION OF LIFE SENTENCES L.1 Section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000 empowers a judge when passing a sentence of life imprisonment, where such a sentence is not fixed by law, to specify by order such part of the sentence (‘the relevant part’) as shall be served before the prisoner may require the Secretary of State to refer his case to the Parole Board. This is applicable to defendants under the age of 18 years as well as to adult defendants. L.2 Thus the life sentence falls into two parts: (a) the relevant part, which consists of the period of detention imposed for punishment and deterrence, taking into account the seriousness of the offence, and (b) the remaining part of the sentence, during which the prisoner’s detention will be governed by consideration of risk to the public. L.3 The judge is not obliged by statute to make use of the provisions of section 82 A when passing a life sentence. However, the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public. In such a case, the judge should state this in open court when passing sentence. L.4 In cases where the judge is to specify the relevant part of the sentence under section 82 A, the judge should permit the advocate for the defendant to address the court as to the appropriate length of the relevant part. Where no relevant part is to be specified, the advocate for the defendant should be permitted to address the court as to the appropriateness of this course of action. L.5 In specifying the relevant part of the sentence, the judge should have regard to the specific terms of section 82 A and should indicate the reasons for reaching his decision as to the length of the relevant part. CPD VII Sentencing M: MANDATORY LIFE SENTENCES M.1 The purpose of this section is to give practical guidance as to the procedure for passing a mandatory life sentence under section 269 and schedule 21 of the Criminal Justice Act 2003 (‘ the Act ’). This direction also gives guidance as to the transitional arrangements under section 276 and schedule 22 of the Act . It clarifies the correct approach to looking at the practice of the Secretary of State prior to December 2002 for the purposes of schedule 22 of the Act , in the light of the judgment in R. v Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim 1762 ,[2005] 1 Cr. App. R. 3, [2005] 1 Cr. App. R. (S.) 67. M.2 Section 269 came into force on 18 December 2003. Under section 269 , all courts passing a mandatory life sentence must either announce in open court the minimum term the prisoner must serve before the Parole Board can consider release on licence under the provisions of section 28 of the Crime (Sentences) Act 1997 (as amended by section 275 of the Act ), or announce that the seriousness of the offence is so exceptionally high that the early release provisions should not apply at all (a ‘whole life order’). M.3 In setting the minimum term, the court must set the term it considers appropriate taking into account the seriousness of the offence. In considering the seriousness of the offence, the court must have regard to the general principles set out in Schedule 21 of the Act as amended and any guidelines relating to offences in general which are relevant to the case and not incompatible with the provisions of Schedule 21. Although it is necessary to have regard to such guidance, it is always permissible not to apply the guidance if a judge considers there are reasons for not following it. It is always necessary to have regard to the need to do justice in the particular case. However, if a court departs from any of the starting points given in Schedule 21, the court is under a duty to state its reasons for doing so ( section 270(2) (b) of the Act ). M.4 Schedule 21 states that the first step is to choose one of five starting points: “whole life”, 30 years, 25 years, 15 years or 12 years. Where the 15 year starting point has been chosen, judges should have in mind that this starting point encompasses a very broad range of murders. At paragraph 35 of Sullivan , the court found it should not be assumed that Parliament intended to raise all minimum terms that would previously have had a lower starting point, to 15 years. M.5 Where the offender was 21 or over at the time of the offence, and the court takes the view that the murder is so grave that the offender ought to spend the rest of his life in prison, the appropriate starting point is a ‘whole life order’. (paragraph 4(1) of Schedule 21). The effect of such an order is that the early release provisions in section 28 of the Crime (Sentences) Act 1997 will not apply. Such an order should only be specified where the court considers that the seriousness of the offence (or the combination of the offence and one or more other offences associated with it) is exceptionally high. Paragraph 4 (2) sets out examples of cases where it would normally be appropriate to take the ‘whole life order’ as the appropriate starting point. M.6 Where the offender is aged 18 to 20 and commits a murder that is so serious that it would require a whole life order if committed by an offender aged 21 or over, the appropriate starting point will be 30 years. (Paragraph 5(2)(h) of Schedule 21). M.7 Where a case is not so serious as to require a ‘whole life order’ but where the seriousness of the offence is particularly high and the offender was aged 18 or over when he committed the offence, the appropriate starting point is 30 years (paragraph 5(1) of Schedule 21). Paragraph 5 (2) sets out examples of cases where a 30 year starting point would normally be appropriate (if they do not require a ‘whole life order’). M.8 Where the offender was aged 18 or over when he committed the offence, took a knife or other weapon to the scene intending to commit any offence or have it available to use as a weapon, and used it in committing the murder, the offence is normally to be regarded as sufficiently serious for an appropriate starting point of 25 years (paragraph 5A of Schedule 21). M.9 Where the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4 (1), 5 (1) or 5A(1) of Schedule 21, the appropriate starting point is 15 years (see paragraph 6). M.10 18 to 20 year olds are only the subject of the 30-year, 25-year and 15-year starting points. M.11 The appropriate starting point when setting a sentence of detention during Her Majesty’s pleasure for offenders aged under 18 when they committed the offence is always 12 years (paragraph 7 of Schedule 21). M.12 The second step after choosing a starting point is to take account of any aggravating or mitigating factors which would justify a departure from the starting point. Additional aggravating factors (other than those specified in paragraphs 4 (2), 5(2) and 5A) are listed at paragraph 10 of Schedule 21. Examples of mitigating factors are listed at paragraph 11 of Schedule 21. Taking into account the aggravating and mitigating features, the court may add to or subtract from the starting point to arrive at the appropriate punitive period. M.13 The third step is that the court should consider the effect of section 143(2) of the Act in relation to previous convictions; section 143(3) of the Act where the offence was committed whilst the offender was on bail; and section 144 of the Act where the offender has pleaded guilty (paragraph 12 of Schedule 21). The court should then take into account what credit the offender would have received for a remand in custody under section 240 or 240ZA of the Act and/or for a remand on bail subject to a qualifying curfew condition under section 240 A, but for the fact that the mandatory sentence is one of life imprisonment. Where the offender has been thus remanded in connection with the offence or a related offence, the court should have in mind that no credit will otherwise be given for this time when the prisoner is considered for early release. The appropriate time to take it into account is when setting the minimum term. The court should make any appropriate subtraction from the punitive period it would otherwise impose, in order to reach the minimum term. M.14 Following these calculations, the court should have arrived at the appropriate minimum term to be announced in open court. As paragraph 9 of Schedule 21 makes clear, the judge retains ultimate discretion and the court may arrive at any minimum term from any starting point. The minimum term is subject to appeal by the offender under section 271 of the Act and subject to review on a reference by the Attorney-General under section 272 of the Act . CPD VII Sentencing N: TRANSITIONAL ARRANGEMENTS FOR SENTENCES WHERE THE OFFENCE WAS COMMITTED BEFORE 18 DECEMBER 2003 N.1 Where the court is passing a sentence of mandatory life imprisonment for an offence committed before 18 December 2003, the court should take a fourth step in determining the minimum term in accordance with section 276 and Schedule 22 of the Act . N.2 The purpose of those provisions is to ensure that the sentence does not breach the principle of non-retroactivity, by ensuring that a lower minimum term would not have been imposed for the offence when it was committed. Before setting the minimum term, the court must check whether the proposed term is greater than that which the Secretary of State would probably have notified under the practice followed by the Secretary of State before December 2002. N.3 The decision in Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim 1762 , [2005] 1 Cr. App. R. 3, [2005] 1 Cr. App. R. (S.) 67 gives detailed guidance as to the correct approach to this practice and judges passing mandatory life sentences where the murder was committed prior to 18 December 2003 are well advised to read that judgment before proceeding. N.4 The practical result of that judgment is that in sentences where the murder was committed before 31 May 2002, the best guide to what would have been the practice of the Secretary of State is the letter sent to judges by Lord Bingham CJ on 10th February 1997, the relevant parts of which are set out below. N.5 The practice of Lord Bingham, as set out in his letter of 10 February 1997, was to take 14 years as the period actually to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder. Examples of factors he outlined as capable, in appropriate cases, of mitigating the normal penalty were: (1) Youth; (2) Age (where relevant to physical capacity on release or the likelihood of the defendant dying in prison); (3) [Intellectual disability or mental disorder]; (4) Provocation (in a non-technical sense), or an excessive response to a personal threat; (5) The absence of an intention to kill; (6) Spontaneity and lack of premeditation (beyond that necessary to constitute the offence: e.g. a sudden response to family pressure or to prolonged and eventually insupportable stress); (7) Mercy killing; (8) A plea of guilty, or hard evidence of remorse or contrition. N.6 Lord Bingham then listed the following factors as likely to call for a sentence more severe than the norm: (1) Evidence of planned, professional, revenge or contract killing; (2) The killing of a child or a very old or otherwise vulnerable victim; (3) Evidence of sadism, gratuitous violence, or sexual maltreatment, humiliation or degradation before the killing; (4) Killing for gain (in the course of burglary, robbery, blackmail, insurance fraud, etc.); (5) Multiple killings; (6) The killing of a witness, or potential witness, to defeat the ends of justice; (7) The killing of those doing their public duty (policemen, prison officers, postmasters, firemen, judges, etc.); (8) Terrorist or politically motivated killings; (9) The use of firearms or other dangerous weapons, whether carried for defensive or offensive reasons; (10) A substantial record of serious violence; (11) Macabre attempts to dismember or conceal the body. N.7 Lord Bingham further stated that the fact that a defendant was under the influence of drink or drugs at the time of the killing is so common he would be inclined to treat it as neutral. But in the not unfamiliar case in which a couple, inflamed by drink, indulge in a violent quarrel in which one dies, often against a background of longstanding drunken violence, then he would tend to recommend a term somewhat below the norm. N.8 Lord Bingham went on to say that given the intent necessary for proof of murder, the consequences of taking life and the understandable reaction of relatives to the deceased, a substantial term will almost always be called for, save perhaps in a truly venial case of mercy killing. While a recommendation of a punitive term longer than, say, 30 years will be very rare indeed, there should not be any upper limit. Some crimes will certainly call for terms very well in excess of the norm. N.9 For the purposes of sentences where the murder was committed after 31 May 2002 and before 18 December 2003, the judge should apply the Practice Statement handed down on 31 May 2002 reproduced at paragraphs N.10 to N.20 below. N.10 This Statement replaces the previous single normal tariff of 14 years by substituting a higher and a normal starting point of respectively 16 (comparable to 32 years) and 12 years (comparable to 24 years). These starting points have then to be increased or reduced because of aggravating or mitigating factors such as those referred to below. It is emphasised that they are no more than starting points. The normal starting point of 12 years N.11 Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in paragraph N.13. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph. N.12 The normal starting point can be reduced because the murder is one where the offender’s culpability is significantly reduced, for example, because:- (a) the case came close to the borderline between murder and manslaughter; or (b) the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or (c) the offender was provoked (in a non-technical sense) such as by prolonged and eventually unsupportable stress; or (d) the case involved an over-reaction in self-defence; or (e) the offence was a mercy killing. These factors could justify a reduction to 8/9 years (equivalent to 16/18 years). The higher starting point of 15/16 years N.13 The higher starting point will apply to cases where the offender’s culpability was exceptionally high, or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as:- (a) the killing was ‘professional’ or a contract killing; (b) the killing was politically motivated; (c) the killing was done for gain (in the course of a burglary, robbery etc.); (d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness); (e) the victim was providing a public service; (f) the victim was a child or was otherwise vulnerable; (g) the killing was racially aggravated; (h) the victim was deliberately targeted because of his or her religion or sexual orientation; (i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing; (j) extensive and/or multiple injuries were inflicted on the victim before death; (k) the offender committed multiple murders. Variation of the starting point N.14 Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case. N.15 Aggravating factors relating to the offence can include: (a) the fact that the killing was planned; (b) the use of a firearm; (c) arming with a weapon in advance; (d) concealment of the body, destruction of the crime scene and/or dismemberment of the body; (e) particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time. N.16 Aggravating factors relating to the offender will include the offender’s previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk. N.17 Mitigating factors relating to the offence will include: (a) an intention to cause grievous bodily harm, rather than to kill; (b) spontaneity and lack of pre-meditation. N.18 Mitigating factors relating to the offender may include: (a) the offender’s age; (b) clear evidence of remorse or contrition; (c) a timely plea of guilty. Very serious cases N.19 A substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present. In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or no hope of the offender’s eventual release. In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case. N.20 Among the categories of case referred to in paragraph N.13, some offences may be especially grave. These include cases in which the victim was performing his duties as a prison officer at the time of the crime, or the offence was a terrorist or sexual or sadistic murder, or involved a young child. In such a case, a term of 20 years and upwards could be appropriate. N.21 In following this guidance, judges should bear in mind the conclusion of the Court in Sullivan that the general effect of both these statements is the same. While Lord Bingham does not identify as many starting points, it is open to the judge to come to exactly the same decision irrespective of which was followed. Both pieces of guidance give the judge a considerable degree of discretion. CPD VII Sentencing P: PROCEDURE FOR ANNOUNCING THE MINIMUM TERM IN OPEN COURT P.1 Having gone through the three or four steps outlined above, the court is then under a duty, under section 270 of the Act , to state in open court, in ordinary language, its reasons for deciding on the minimum term or for passing a whole life order. P.2 In order to comply with this duty, the court should state clearly the minimum term it has determined. In doing so, it should state which of the starting points it has chosen and its reasons for doing so. Where the court has departed from that starting point due to mitigating or aggravating features, it must state the reasons for that departure and any aggravating or mitigating features which have led to that departure. At that point, the court should also declare how much, if any, time is being deducted for time spent in custody and/or on bail subject to a qualifying curfew condition. The court must then explain that the minimum term is the minimum amount of time the prisoner will spend in prison, from the date of sentence, before the Parole Board can order early release. If it remains necessary for the protection of the public, the prisoner will continue to be detained after that date. The court should also state that where the prisoner has served the minimum term and the Parole Board has decided to direct release, the prisoner will remain on licence for the rest of his life and may be recalled to prison at any time. P.3 Where the offender was 21 or over when he committed the offence and the court considers that the seriousness of the offence is so exceptionally high that a ‘whole life order’ is appropriate, the court should state clearly its reasons for reaching this conclusion. It should also explain that the early release provisions will not apply. CPD VII Sentencing Q: FINANCIAL, ETC. INFORMATION REQUIRED FOR SENTENCING Q.1 These directions supplement CrimPR 24.11 and 25.16, which set out the procedure to be followed where a defendant pleads guilty, or is convicted, and is to be sentenced. They are not concerned exclusively with corporate defendants, or with offences of an environmental, public health, health and safety or other regulatory character, but the guidance which they contain is likely to be of particular significance in such cases. Q.2 The rules set out the prosecutor’s responsibilities in all cases. Where the offence is of a character, or is against a prohibition, with which the sentencing court is unlikely to be familiar, those responsibilities are commensurately more onerous. The court is entitled to the greatest possible assistance in identifying information relevant to sentencing. Q.3 In such a case, save where the circumstances are very straightforward, it is likely that justice will best be served by the submission of the required information in writing: see R v Friskies Petcare (UK) Ltd [2000] 2 Cr App R (S) 401 . Though it is the prosecutor’s responsibility to the court to prepare any such document, if the defendant pleads guilty, or indicates a guilty plea, then it is very highly desirable that such sentencing information should be agreed between the parties and jointly submitted. If agreement cannot be reached in all particulars, then the nature and extent of the disagreement should be indicated. If the court concludes that what is in issue is material to sentence, then it will give directions for resolution of the dispute, whether by hearing oral evidence or by other means. In every case, when passing sentence the sentencing court must make clear on what basis sentence is passed: in fairness to the defendant, and for the information of any other person, or court, who needs or wishes to understand the reasons for sentence. Q.4 If so directed by or on behalf of the court, a defendant must supply accurate information about financial circumstances. In fixing the amount of any fine the court must take into account, amongst other considerations, the financial circumstances of the offender (whether an individual or other person) as they are known or as they appear to be. Before fixing the amount of fine when the defendant is an individual, the court must inquire into his financial circumstances. Where the defendant is an individual the court may make a financial circumstances order in respect of him. This means an order in which the court requires an individual to provide a statement as to his financial means, within a specified time. It is an offence, punishable with imprisonment, to fail to comply with such an order or for knowingly/recklessly furnishing a false statement or knowingly failing to disclose a material fact. The provisions of section 20 A Criminal Justice Act 1991 apply to any person (thereby including a corporate organisation) and place the offender under a statutory duty to provide the court with a statement as to his financial means in response to an official request. There are offences for non-compliance, false statements or non-disclosure. It is for the court to decide how much information is required, having regard to relevant sentencing guidelines or guideline cases. However, by reference to those same guidelines and cases the parties should anticipate what the court will require, and prepare accordingly. In complex cases, and in cases involving a corporate defendant, the information required will be more extensive than in others. In the case of a corporate defendant, that information usually will include details of the defendant’s corporate structure; annual profit and loss accounts, or extracts; annual balance sheets, or extracts; details of shareholders’ receipts; and details of the remuneration of directors or other officers. Q.5 In R v F Howe and Son (Engineers) Ltd [1999] 2 Cr App R (S) 37 the Court of Appeal observed: “If a defendant company wishes to make any submission to the court about its ability to pay a fine it should supply copies of its accounts and any other financial information on which it intends to rely in good time before the hearing both to the court and to the prosecution. This will give the prosecution the opportunity to assist the court should the court wish it. Usually accounts need to be considered with some care to avoid reaching a superficial and perhaps erroneous conclusion. Where accounts or other financial information are deliberately not supplied the court will be entitled to conclude that the company is in a position to pay any financial penalty it is minded to impose. Where the relevant information is provided late it may be desirable for sentence to be adjourned, if necessary at the defendant's expense, so as to avoid the risk of the court taking what it is told at face value and imposing an inadequate penalty.” Q.6 In the case of an individual, the court is likewise entitled to conclude that the defendant is able to pay any fine imposed unless the defendant has supplied financial information to the contrary. It is the defendant’s responsibility to disclose to the court such information relevant to his or her financial position as will enable it to assess what he or she reasonably can afford to pay. If necessary, the court may compel the disclosure of an individual defendant’s financial circumstances. In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION IX APPEAL CrimPR Part 34 Appeal to the Crown Court CPD IX Appeal 34A: APPEALS TO THE CROWN COURT 34A.1 CrimPR 34.4 applies when a defendant appeals to the Crown Court against conviction or sentence and specifies the information and documentation that must be provided by the magistrates’ court. 34A.2 On an appeal against conviction, the reasons given by the magistrates for their decision should not be included with the documents; the appeal hearing is not a review of the magistrates’ court’s decision but a re-hearing. 34A.3 On an appeal against sentence, the magistrates’ court’s reasons and factual finding leading to the finding of guilt should be included, but any reasons for the sentence imposed should be omitted as the Crown Court will be conducting a fresh sentencing exercise. CrimPR Part 39 Appeal to the Court of Appeal about conviction or sentence CPD IX Appeal 39A: APPEALS AGAINST CONVICTION AND SENTENCE – THE PROVISION OF NOTICE TO THE PROSECUTION 39A.1 When an appeal notice served under CrimPR 39.2 is received by the Registrar of Criminal Appeals, the Registrar will notify the relevant prosecution authority, giving the case name, reference number and the trial or sentencing court. 39A.2 If the court or the Registrar directs, or invites, the prosecution authority to serve a respondent’s notice under CrimPR 39.6, prior to the consideration of leave, the Registrar will also at that time serve on the prosecution authority the appeal notice containing the grounds of appeal and the transcripts, if available. If the prosecution authority is not directed or invited to serve a respondent’s notice but wishes to do so, the authority should request the grounds of appeal and any existing transcript from the Criminal Appeal Office. Any respondent’s notice received prior to the consideration of leave will be made available to the single judge. 39A.3 The Registrar of Criminal Appeals will notify the relevant prosecution authority in the event that: (a) leave to appeal against conviction or sentence is granted by the single Judge; or (b) the single Judge or the Registrar refers an application for leave to appeal against conviction or sentence to the Full Court for determination; or (c) there is to be a renewed application for leave to appeal against sentence only. If the prosecution authority has not yet been served with the appeal notice and transcript, the Registrar will serve these with the notification, and if leave is granted, the Registrar will also serve the authority with the comments of the single judge. 39A.4 The prosecution should notify the Registrar without delay if they wish to be represented at the hearing. The prosecution should note that the Registrar will not delay listing to await a response from the Prosecution as to whether they wish to attend. Prosecutors should note that occasionally, for example, where the single Judge fixes a hearing date at short notice, the case may be listed very quickly. 39A.5 If the prosecution wishes to be represented at any hearing, the notification should include details of Counsel instructed and a time estimate. An application by the prosecution to remove a case from the list for Counsel’s convenience, or to allow further preparation time, will rarely be granted. 39A.6 There may be occasions when the Court of Appeal Criminal Division will grant leave to appeal to an unrepresented applicant and proceed forthwith with the appeal in the absence of the appellant and Counsel. The prosecution should not attend any hearing at which the appellant is unrepresented. Nasteska v. The former Yugoslav Republic of Macedonia ( Application No.23152/05) As a Court of Review, the Court of Appeal Criminal Division would expect the prosecution to have raised any specific matters of relevance with the sentencing Judge in the first instance. CPD IX Appeal 39B: LISTING OF APPEALS AGAINST CONVICTION AND SENTENCE IN THE COURT OF APPEAL CRIMINAL DIVISION (CACD) 39B.1 Arrangements for the fixing of dates for the hearing of appeals will be made by the Criminal Appeal Office Listing Officer, under the superintendence of the Registrar of Criminal Appeals who may give such directions as he deems necessary. 39B.2 Where possible, regard will be had to an advocate’s existing commitments. However, in relation to the listing of appeals, the Court of Appeal takes precedence over all lower courts, including the Crown Court. Wherever practicable, a lower court will have regard to this principle when making arrangements to release an advocate to appear in the Court of Appeal. In case of difficulty the lower court should communicate with the Registrar. In general an advocate’s commitment in a lower court will not be regarded as a good reason for failing to accept a date proposed for a hearing in the Court of Appeal. 39B.3 Similarly when the Registrar directs that an appellant should appear by video link, the prison must give precedence to video-links to the Court of Appeal over video-links to the lower courts, including the Crown Court. 39B.4 The copy of the Criminal Appeal Office summary provided to advocates will contain the summary writer’s time estimate for the whole hearing including delivery of judgment. It will also contain a time estimate for the judges’ reading time of the core material. The Listing Officer will rely on those estimates, unless the advocate for the appellant or the Crown provides different time estimates to the Listing Officer, in writing, within 7 days of the receipt of the summary by the advocate. Where the time estimates are considered by an advocate to be inadequate, or where the estimates have been altered because, for example, a ground of appeal has been abandoned, it is the duty of the advocate to inform the Court promptly, in which event the Registrar will reconsider the time estimates and inform the parties accordingly. 39B.5 The following target times are set for the hearing of appeals. Target times will run from the receipt of the appeal by the Listing Officer, as being ready for hearing. 39B.6 NATURE OF APPEAL FROM RECEIPT BY LISTING OFFICER TO FIXING OF HEARING DATE FROM FIXING OF HEARING DATE TO HEARING TOTAL TIME FROM RECEIPT BY LISTING OFFICER TO HEARING Sentence Appeal 14 days 14 days 28 days Conviction Appeal 21 days 42 days 63 days Conviction Appeal where witness to attend 28 days 52 days 80 days 39B.7 Where legal vacations impinge, these periods may be extended. Where expedition is required, the Registrar may direct that these periods be abridged. 39B.8 “Appeal” includes an application for leave to appeal which requires an oral hearing. CPD IX Appeal 39C: APPEAL NOTICES CONTAINING GROUNDS OF APPEAL 39C.1 The requirements for the service of notices of appeal and the time limits for doing so are as set out in CrimPR Part 39. The Court must be provided with an appeal notice as a single document which sets out the grounds of appeal. Advocates should not provide the Court with an advice addressed to lay or professional clients. Any appeal notice or grounds of appeal served on the Court will usually be provided to the respondent. 39C.2 Advocates should not settle grounds unless they consider that they are properly arguable. Grounds should be carefully drafted; the Court is not assisted by grounds of appeal which are not properly set out and particularised. Should leave to amend the grounds be granted, it is most unlikely that further grounds will be entertained. CPD IX Appeal 39D: RESPONDENTS’ NOTICES 39D.1 The requirements for the service of respondents’ notices and the time limits for doing so are as set out in CrimPR Part 39. Any respondent’s notice served should be in accordance with CrimPR 39.6. The Court does not require a response to the respondent’s notice. CPD IX Appeal 39E: LOSS OF TIME 39E.1 Both the Court and the single judge have power, in their discretion, under the Criminal Appeal Act 1968 sections 29 and 31, to direct that part of the time during which an applicant is in custody after lodging his notice of application for leave to appeal should not count towards sentence. Those contemplating an appeal should seek advice and should remember that a notice of appeal without grounds is ineffective and that grounds should be substantial and particularised and not a mere formula. When leave to appeal has been refused by the single judge, it is often of assistance to consider the reasons given by the single judge before making a decision whether to renew the application. Where an application devoid of merit has been refused by the single judge he may indicate that the Full Court should consider making a direction for loss of time on renewal of the application. However the Full Court may make such a direction whether or not such an indication has been given by the single judge. 39E.2 Applicants and counsel are reminded of the warning given by the Court of Appeal in R v Hart and Others [2006] EWCA Crim 3239 , [2007] 1 Cr. App. R. 31, [2007] 2 Cr. App. R. (S.) 34 and should ‘heed the fact that this court is prepared to exercise its power … The mere fact that counsel has advised that there are grounds of appeal will not always be a sufficient answer to the question as to whether or not an application has indeed been brought which was totally without merit.’ CPD IX Appeal 39F: SKELETON ARGUMENTS 39F.1 Advocates should always ensure that the Court, and any other party as appropriate, has a single document containing all of the points that are to be argued. The appeal notice must comply with the requirements of CrimPR Part 39. In cases of an appeal against conviction, advocates must serve a skeleton argument when the appeal notice does not sufficiently outline the grounds of the appeal, particularly in cases where a complex or novel point of law has been raised. In an appeal against sentence it may be helpful for an advocate to serve a skeleton argument when a complex issue is raised. 39F.2 The appellant’s skeleton argument, if any, must be served no later than 21 days before the hearing date, and the respondent’s skeleton argument, if any, no later than 14 days before the hearing date, unless otherwise directed by the Court. 39F.3 A skeleton argument, if provided, should contain a numbered list of the points the advocate intends to argue, grouped under each ground of appeal, and stated in no more than one or two sentences. It should be as succinct as possible. Advocates should ensure that the correct Criminal Appeal Office number and the date on which the document was served appear at the beginning of any document and that their names are at the end. CPD IX Appeal 39G: CRIMINAL APPEAL OFFICE SUMMARIES 39G.1 To assist the Court, the Criminal Appeal Office prepares summaries of the cases coming before it. These are entirely objective and do not contain any advice about how the Court should deal with the case or any view about its merits. They consist of two Parts. 39G.2 Part I, which is provided to all of the advocates in the case, generally contains: (a) particulars of the proceedings in the Crown Court, including representation and details of any co-accused, (b) particulars of the proceedings in the Court of Appeal (Criminal Division), (c) the facts of the case, as drawn from the transcripts, appeal notice, respondent’s notice, witness statements and / or the exhibits, (d) the submissions and rulings, summing up and sentencing remarks. 39G.3 The contents of the summary are a matter for the professional judgment of the writer, but an advocate wishing to suggest any significant alteration to Part I should write to the Registrar of Criminal Appeals. If the Registrar does not agree, the summary and the letter will be put to the Court for decision. The Court will not generally be willing to hear oral argument about the content of the summary. 39G.4 Advocates may show Part I of the summary to their professional or lay clients (but to no one else) if they believe it would help to check facts or formulate arguments, but summaries are not to be copied or reproduced without the permission of the Criminal Appeal Office; permission for this will not normally be given in cases involving children, or sexual offences, or where the Crown Court has made an order restricting reporting. 39G.5 Unless a judge of the High Court or the Registrar of Criminal Appeals gives a direction to the contrary, in any particular case involving material of an explicitly salacious or sadistic nature, Part I will also be supplied to appellants who seek to represent themselves before the Full Court, or who renew to the full court their applications for leave to appeal against conviction or sentence. 39G.6 Part II, which is supplied to the Court alone, contains (a) a summary of the grounds of appeal and (b) in appeals against sentence (and applications for such leave), summaries of the antecedent histories of the parties and of any relevant pre-sentence, medical or other reports. 39G.7 All of the source material is provided to the Court and advocates are able to draw attention to anything in it which may be of particular relevance. CrimPR Part 44 Request to the European Court for a preliminary ruling CPD IX Appeal 44A: REFERENCES TO THE EUROPEAN COURT OF JUSTICE 44A.1 Further to CrimPR 44.3 of the Criminal Procedure Rules, the order containing the reference shall be filed with the Senior Master of the Queen’s Bench Division of the High Court for onward transmission to the Court of Justice of the European Union. The order should be marked for the attention of Mrs Isaac and sent to the Senior Master: c/o Queen’s Bench Division Associates Dept Room WG03 Royal Courts of Justice Strand London WC2A 2LL 44A.2 There is no longer a requirement that the relevant court file be sent to the Senior Master. The parties should ensure that all appropriate documentation is sent directly to the European Court at the following address: The Registrar Court of Justice of the European Union Kirchberg L-2925 Luxemburg 44A.3 There is no prescribed form for use but the following details must be included in the back sheet to the order: i. Solicitor’s full address; ii. Solicitor’s and Court references; iii. Solicitor’s e-mail address. 44A.4 The European Court of Justice regularly updates its Recommendation to national courts and tribunals in relation to the initiation of preliminary ruling proceedings. The current Recommendation is 2012/C 338/01: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:338:0001:0006:EN:PDF 44A.5 The referring court may request the Court of Justice of the European Union to apply its urgent preliminary ruling procedure where the referring court’s proceedings relate to a person in custody. For further information see Council Decision 2008/79/EC [2008] OJ L24/42: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:024:0042:0043:EN:PDF 44A.6 Any such request must be made in a document separate from the order or in a covering letter and must set out: iv. The matters of fact and law which establish the urgency; v. The reasons why the urgent preliminary ruling procedure applies; and vi. In so far as possible, the court’s view on the answer to the question referred to the Court of Justice of the European Union for a preliminary ruling. 44A.7 Any request to apply the urgent preliminary ruling procedure should be filed with the Senior Master as described above. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION X COSTS CrimPR Part 45 Costs Reference should be made to the Practice Direction (Costs in Criminal Proceedings) 2015. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION XI OTHER PROCEEDINGS CrimPR Part 47 Investigation orders and warrants CPD XI Other proceedings 47A: INVESTIGATION ORDERS AND WARRANTS 47A.1 Powers of entry, search and seizure, and powers to obtain banking and other confidential information, are among the most intrusive that investigators can exercise. Every application must be carefully scrutinised with close attention paid to what the relevant statutory provision requires of the applicant and to what it permits. CrimPR Part 47 must be followed, and the accompanying forms must be used. These are designed to prompt applicants, and the courts, to deal with all of the relevant criteria. 47A.2 The issuing of a warrant or the making of such an order is never to be treated as a formality and it is therefore essential that the judge or magistrate considering the application is given, and must take, sufficient time for the purpose. The prescribed forms require the applicant to provide a time estimate, and listing officers and justices’ legal advisers should take account of these. 47A.3 Applicants for orders and warrants owe the court duties of candour and truthfulness. On any application made without notice to the respondent, and so on all applications for search warrants, the duty of frank and complete disclosure is especially onerous. The applicant must draw the court’s attention to any information that is unfavourable to the application. The existence of unfavourable information will not necessarily lead to the application being refused; it will be a matter for the court what weight to place on each piece of information. 47A.4 Where an applicant supplements an application with additional oral or written information, on questioning by the court or otherwise, it is essential that the court keeps an adequate record. What is needed will depend upon the circumstances. The Rules require that a record of the ‘gist’ be retained. The purpose of such a record is to allow the sufficiency of the court’s reasons for its decision subsequently to be assessed. The gravity of such decisions requires that their exercise should be susceptible to scrutiny and to explanation by reference to all of the information that was taken into account. 47A.5 The forms that accompany CrimPR Part 47 provide for the most frequently encountered applications. However, there are some hundreds of powers of entry, search and seizure, supplied by a corresponding number of legislative provisions. In any criminal matter, if there is no form designed for the particular warrant or order sought, the forms should still be used, as far as is practicable, and adapted as necessary. The applicant should pay particular attention to the specific legislative requirements for the granting of such an application to ensure that the court has all of the necessary information, and, if the court might be unfamiliar with the legislation, should provide a copy of the relevant provisions. Applicants must comply with the duties of candour and truthfulness, and include in their application the declarations required by the Rules and must make disclosure of any unfavourable information to the court. CrimPR Part 48 Contempt of court CPD XI Other proceedings 48A: CONTEMPT IN THE FACE OF THE MAGISTRATES’ COURT General 48A.1 The procedure to be followed in cases of contempt of court is given in CrimPR Part 48. The magistrates’ courts’ power to deal with contempt in the face of the court is contained within section 12 of the Contempt of Court Act 1981 . Magistrates’ courts also have the power to punish a witness who refuses to be sworn or give evidence under section 97(4) of the Magistrates’ Courts Act 1980 . Contempt consisting of wilfully insulting anyone specified in section 12 or interrupting proceedings 48A.2 In the majority of cases, an apology and a promise as to future conduct should be sufficient for the court to order a person’s release. However, there are likely to be certain cases where the nature and seriousness of the misconduct requires the court to consider using its powers, under section 12(2) of the Contempt of Court Act 1981 , either to fine or to order the person’s committal to custody. Imposing a penalty for contempt 48A.3 The court should allow the person a further opportunity to apologise for his or her contempt, and should follow the procedure at CrimPR 48.8(4). The court should consider whether it is appropriate to release the person or whether it must exercise its powers to fine the person or to commit the person to custody under section 12 (2) of the 1981 Act . In deciding how to deal with the person, the court should have regard to the period for which he or she has been detained, whether the conduct was admitted and the seriousness of the contempt. Any period of committal to custody should be for the shortest period of time commensurate with the interests of preserving good order in the administration of justice. CrimPR Part 50 Extradition CPD XI Other proceedings 50A: EXTRADITION: GENERAL MATTERS AND MANAGEMENT OF THE APPEAL General matters: expedition at all times 50A.1 Compliance with these directions is essential to ensure that extradition proceedings are dealt with expeditiously. Both in accordance with the spirit of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and surrender procedures between Member States and the United Kingdom’s other treaty obligations. It is of the utmost importance that orders which provide directions for the proper management and progress of cases are obeyed so that the parties can fulfil their duty to assist the Court in furthering the overriding objective and in making efficient use of judicial resources. General guidance under s. 2 (7A) Extradition Act 2003 (as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 ) 50A.2 When proceeding under section 21 A of the Act and considering under sub section (3 )(a) of the Act the seriousness of the conduct alleged to constitute the extradition offence, the judge will determine the issue on the facts of each case as set out in the warrant, subject to the guidance in paragraph 50A.3 below. 50A.3 In any case where the conduct alleged to constitute the offence falls into one of the categories in the table at paragraph 50A.5 below, unless there are exceptional circumstances, the judge should generally determine that extradition would be disproportionate. It would follow under the terms of s. 21 A (4) (b) of the Act that the judge must order the person’s discharge. 50A.4 The exceptional circumstances referred to above in paragraph 50A.3 will include: i. Vulnerable victim ii. Crime committed against someone because of their disability, gender-identity, race, religion or belief, or sexual orientation iii. Significant premeditation iv. Multiple counts v. Extradition also sought for another offence vi. Previous offending history 50A.5 The table is as follows: Category of offence Examples Minor theft – (not robbery/ burglary or theft from the person) Where the theft is of a low monetary value and there is a low impact on the victim or indirect harm to others, for example: (a) Theft of an item of food from a supermarket (b) Theft of a small amount of scrap metal from company premises (c) Theft of a very small sum of money Minor financial offences ( forgery, fraud and tax offences) Where the sums involved are small and there is a low impact on the victim and / or low indirect harm to others, for example: (a) Failure to file a tax return or invoices on time (b) Making a false statement in a tax return (c) Dishonestly applying for a tax refund (d) Obtaining a bank loan using a forged or falsified document (e) Non-payment of child maintenance Minor road traffic , driving and related offences Where no injury, loss or damage was incurred to any person or property, for example: (a) Driving whilst using a mobile phone (b) Use of a bicycle whilst intoxicated Minor public order offences Where there is no suggestion the person started the trouble, and the offending behaviour was for example: (a) Non-threatening verbal abuse of a law enforcement officer or government official (b) Shouting or causing a disturbance, without threats (c)Quarrelling in the street, without threats Minor criminal damage , (other than by fire) For example, breaking a window Possession of controlled substance (other than one with a high capacity for harm such as heroin, cocaine, LSD or crystal meth) Where it was possession of a very small quantity and intended for personal use CPD XI Other proceedings 50B: MANAGEMENT OF THE APPEAL 50B.1 Applications for permission to appeal to the High Court under the Extradition Act 2003 must be started in the Administrative Court of the Queen’s Bench Division at the Royal Courts of Justice in London. 50B.2 A Lord Justice of Appeal appointed by the Lord Chief Justice will have responsibility to assist the President of the Queen’s Bench Division with overall supervision of extradition appeals. Definitions 50B.3 Where appropriate “appeal” includes “application for permission to appeal”. 50B.4 “EAW” means European Arrest Warrant. 50B.5 A “nominated legal officer of the court” is a court officer assigned to the Administrative Court Office who is a barrister or solicitor and who has been nominated for the purpose by the Lord Chief Justice under CrimPR 50.18 and 50.30. Forms 50B.6 The forms are to be used in the High Court, in accordance with CrimPR 50.19, 50.20, 50.21 and 50.22. 50B.7 The forms may be amended or withdrawn from time to time, or new forms added, under the authority of the Lord Chief Justice. Management of the Appeal 50B.8 Where it is not possible for the High Court to begin to hear the appeal in accordance with time limits contained in CrimPR 50.23(1) and (2), the Court may extend the time limit if it believes it to be in the interests of justice to do so and may do so even after the time limit has expired. 50B.9 The power to extend those time limits may be exercised by a Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated legal officer of the court. 50B.10 Case Management directions setting down a timetable may be imposed upon the parties by a Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated legal officer of the court. Listing of Oral, Renewal Hearings and Substantive Hearings 50B.11 Arrangements for the fixing of dates for hearings will be made by a Listing Officer of the Administrative Court under the direction of the Judge with overall responsibility for supervision of extradition appeals. 50B.12 A Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated legal officer of the court may give such directions to the Listing Officer as they deem necessary with regard to the fixing of dates, including as to whether cases in the same/related proceedings or raising the same or similar issues should be heard together or consecutively under the duty imposed by CrimPR 1.1 (2)(e). Parties must alert the nominated Court Officer for the need for such directions. 50B.13 Save in exceptional circumstances, regard will not be given to an advocate's existing commitments. This is in accordance with the spirit of the legislation that extradition matters should be dealt with expeditiously. Extradition matters are generally not so complex that an alternative advocate cannot be instructed. 50B.14 If a party disagrees with the time estimate given by the Court, they must inform the Listing Office within 5 business days of the notification of the listing and they must provide a time estimate of their own. Expedited appeals 50B.15 The Court may direct that the hearing of an appeal be expedited. 50B.16 The Court will deal with requests for an expedited appeal without a hearing. Requests for expedition must be made in writing, either within the appeal notice, or by application notice, clearly marked with the Administrative Court reference number, which must be lodged with the Administrative Court Office or emailed to the appropriate email address: [email protected] and notice must be given to the other parties. 50B.17 Any requests for an expedited appeal made to an out of hours Judge must be accompanied by: i) A detailed chronology; ii) Reasons why the application could not be made within Court hours; iii) Any Orders or Judgments made in the proceedings Amendment to Notices 50B.18 Amendment to Notice of Appeal requiring permission (i) Subject to CrimPR 50.20(5), an appeal notice may not be amended without the permission of the Court. (ii) An application for permission to amend made before permission to appeal has been considered will be determined without a hearing. (iii) An application for permission to amend after permission to appeal has been granted and any submissions in opposition will normally be dealt with at the hearing unless there is any risk that the hearing may have to be adjourned. If there is any risk that the application to amend may lead the other party to seek time to answer the proposed amendment, the application must be made as soon as practicable and well in advance of the hearing. A failure to make immediate applications for such an amendment is likely to result in refusal. (iv) Legal representatives or the appellant, if acting in person, must a. Inform the Court at the time they make the application if the existing time estimate is affected by the proposed amendment; and b. Attempt to agree any revised time estimate no later than 5 business days after service of the application. 50B.19 Amendment to Respondent’s Notice (i) A respondent’s notice may not be amended without the permission of the Court. (ii) An application for permission to amend made before permission to appeal has been considered will be determined without a hearing. (iii) An application for permission to amend after permission to appeal has been granted and any submissions in opposition will normally be dealt with at the hearing unless there is any risk that the hearing may have to be adjourned. If there is any risk that the application to amend may lead the other party to seek time to answer the proposed amendment, the application must be made as soon as practicable and well in advance of the hearing. A failure to make immediate applications for such an amendment is likely to result in refusal. (iv) Legal representatives or the appellant, if acting in person, must a. Inform the Court at the time they make the application if the existing time estimate is affected by the proposed amendment; and b. Attempt to agree any revised time estimate no later than 5 business days after service of the application. Use of Live-Links 50B.20 When a party acting in person is in custody, the Court office will request the institution to use live-link for attendance at any oral or renewal hearing or substantive appeal. The institution must give precedence to all such applications in the High Court over live-links to the lower courts, including the Crown Court. Interpreters 50B.21 It is the responsibility of the Court Listing Officer to ensure the attendance of an accredited interpreter when an unrepresented party in extradition proceedings is acting in person and does not understand or speak English. 50B.22 Where a party who does not understand or speak English is legally represented it is the responsibility of his/her solicitors to instruct an interpreter if required for any hearing in extradition proceedings. Disposing of applications and appeals by way of consent 50B.23 Any consent order to dismiss pursuant to CrimPR 50.24(3) must be approved by a Lord Justice of Appeal or Single Judge of the High Court and be pronounced in open Court. 50B.24 A consent order to allow an appeal brought under s.28 of the Extradition Act 2003 must provide – (i) for the quashing of the decision of the District Judge in Westminster Magistrates’ Court discharging the Requested Person; (ii) for the matter to be remitted to the District Judge to hold fresh extradition proceedings; (iii) The consent order may be approved by the Lord Justice of Appeal, Single Judge of the High Court or a Master of the High Court. The order once approved will be sent to the parties. 50B.25 A consent order to allow an appeal brought under s.110 of the Extradition Act 2003 must provide – (i) for the quashing of the decision of the Secretary of State for the Home Department not to order extradition; (ii) for the matter to be remitted to the Secretary of State to make a fresh decision on whether or not to order extradition; (iii) The consent order may be approved by the Lord Justice of Appeal, Single Judge of the High Court or a Master of the High Court. The order once approved will be sent to the parties. 50B.26 Where one of the parties is a child or protected party, any disposal of an application or appeal requires the Court's approval. A draft order signed by the party's solicitors should be sent to the Court, together with an opinion from the advocate acting on behalf of the child or protected party and, in the case of a protected party, any relevant documents prepared for the Court of Protection. Fees 50B.27 Applications to extend representation orders do not attract any fee. 50B.28 Fees are payable for all other applications in accordance with the current Fees Order SI/2014/874. CPD XI Other proceedings 50C: EXTRADITION: REPRESENTATION ORDERS 50C.1 Representation orders may be granted by a Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated legal officer of the court upon a properly completed CRM14 being lodged with the Court. A representation order will cover junior advocate and solicitors for the preparation of the Notice of Appeal to determination of the appeal. 50C.2 Applications to extend representation orders may be granted by a Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated Court Officer who may direct a case management hearing before a Lord Justice of Appeal, a Single Judge, or a Master. Since these applications do not attract a fee, parties may lodge them with the Court by attaching them to an email addressed to the nominated legal officer of the court. 50C.3 Applications to extend representation orders to cover the instruction of Queen’s Counsel to appear either alone or with junior advocate must be made in writing, either by letter or application notice, clearly marked with the Administrative Court reference number, which must be lodged with the Administrative Court Office or emailed to the appropriate email address: [email protected] . The request must: (i) identify the substantial novel or complex issues of law or fact in the case; (ii) explain why these may only be adequately presented by a Queen's Counsel; (iii) state whether a Queen's Counsel has been instructed on behalf of the respondent; (iv) explain any delay in making the request; (v) be supported by advice from junior advocate or Queen’s Counsel 50C.4 Applications for prior authority to cover the cost of obtaining expert evidence must be made in writing, either by letter, clearly marked with the Administrative Court reference number, which must be sent or emailed to the Administrative Court Office. The request must: (i) confirm that the evidence sought has not been considered in any previous appeals determined by the appellate courts; (ii) explain why the evidence was not called at the extradition hearing in Westminster Magistrates’ Court and what evidence can be produced to support that; (iii) explain why the new evidence would have resulted in the District Judge deciding a question at the extradition hearing differently and whether, if so, the District Judge would have been required to make a different order as to discharge of the requested person; (iv) explain why the evidence was not raised when the case was being considered by the Secretary of State for the Home Department or information was available that was not available at that time; (v) explain why the new evidence would have resulted in the Secretary of State deciding a question differently, and if the question had been decided differently, the Secretary of State would not have ordered the person’s extradition; (vi) state when the need for the new evidence first became known; (vii) explain any delay in making the request; (viii) explain what relevant factual, as opposed to expert evidence, is being given by whom to create the factual basis for the expert’s opinion; (ix) explain why this particular area of expertise is relevant: for example why a child psychologist should be appointed as opposed to a social worker; (x) state whether the requested person has capacity; (xi) set out a full breakdown of all costs involved including any VAT or other tax payable, including alternative quotes or explaining why none are available; (xii) provide a list of all previous extensions of the representation order and the approval of expenditure to date; (xiii) provide a timetable for the production of the evidence and its anticipated effect on the time estimate and hearing date; (xiv) set out the level of compliance to date with any directions order. 50C.5 Experts must have direct personal experience of and proven expertise in the issue on which a report is sought; it is only if they do have such experience and it is relevant, that they can give evidence of what they have observed. 50C.6 Where an order is granted to extend a representation order to obtain further evidence it will still be necessary for the party seeking to rely on the new evidence to satisfy the Court hearing the application for permission or the substantive appeal that the evidence obtained should be admitted having regard to sections 27(4) and 29(4) of the Extradition Act 2003 and the judgment in Szombathely City Court v Fenyvesi [2009]EWHC 231 (Admin). 50C.7 Applications to extend representation for the translation of documents must be made in writing, either by letter, clearly marked with the Administrative Court reference number, which must be sent or emailed to the appropriate email address: [email protected] The request should: (i) explain the importance of the document for which a translation is being sought and the justification for obtaining it. (ii) explain what it is believed the contents of the document is and the issues it will assist the court to address in hearing the appeal; (iii) confirm that the evidence sought has not been considered in any previous appeals determined by the appellate courts; (iv) confirm that the evidence sought was not called at the extradition hearing in the Westminster Magistrates’ Court; (v) explain why the evidence sought would have resulted in the District Judge deciding a question at the extradition hearing differently and whether, if so, the District Judge would have been required to make a different order as to discharge of the requested person; (vi) confirm that the new evidence was not raised when the case was being considered by the Secretary of State for the Home Department; (vii) explain why the new evidence sought would have resulted in the Secretary of State deciding a question differently, and if the question had been decided differently, the Secretary of State would not have ordered the person’s extradition; (viii) confirm when the need for the new evidence first became known; (ix) explain any delay in making the request; (x) explain fully the evidential basis for incurring the expenditure; (xi) explain why the appellant cannot produce the evidence himself or herself in the form of a statement of truth; (xii) set out a full breakdown of all costs involved including any VAT or other tax payable and the Legal Aid Agency contractual rates; (xiii) provide a list of all previous extensions of the representation order and the expenditure to date. 50C.8 Where an order is made to extend representation to cover the cost of the translation of documents it will still be necessary for the party seeking to rely on the documents as evidence to satisfy the Court that it should be admitted at the hearing of the appeal having regard to sections 27(4) and 29(4) of the Extradition Act 2003 and the judgment in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin) . CPD XI Other proceedings 50D: EXTRADITION: APPLICATIONS 50D.1 Extension or abridgement of time (i) Any party who seeks extension or abridgment of time for the service of documents, evidence or skeleton arguments must apply to the High Court on the appropriate form and pay the appropriate fee; (ii) Applications for extension or abridgment of time may be determined by a Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated legal officer of the court. (iii) Applications for extension of time must include a witness statement setting out the reasons for non-compliance with any previous order and the proposed timetable for compliance. (iv) Any application made to an out of hours Judge must be accompanied with: a. A detailed chronology; b. Reasons why the application could not be made within Court hours; c. Any Orders or Judgments made in the proceedings Application to come off record 50D.2 Any solicitor seeking to come off record as acting for a party must apply to the High Court on the appropriate form and pay the appropriate fee at least 7 business days before the hearing of the appeal. Applications may be determined by a Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated legal officer of the court. 50D.3 The application must be supported by a statement of truth – (i) providing proper and sufficient reasons why the solicitor wishes to come off record; (ii) confirming that the solicitor has complied with Orders made by the High Court before the application to come off record was made or an explanation as to why there has been non-compliance; (iii) confirming that where, the Requested Person is on bail, that person has been advised of the time and date of the appeal hearing and the need to attend in person; (iv) confirming where the Requested Person is in custody, the institution in which he/she is being held, the person’s prison number and date of birth. Application to adjourn 50D.4 Where a hearing date has been fixed, any application to vacate the hearing must be made on the appropriate form. A fee is required for the application if it is made within 14 days of the hearing date. The application must: (i) explain the reasons why an application is being made to vacate the hearing; (ii) detail the views of the other parties to the appeal; (iii) include a draft order with the application notice. 50D.5 If the parties both seek an adjournment then the application must be submitted for consideration by a Lord Justice of Appeal, a single Judge of the High Court or a Master of the Administrative Court. Exceptional circumstances must be shown if a date for the hearing has been fixed or the adjournment will result in material delay to the determination of the appeal. 50D.6 An application to adjourn following a compromise agreement must be supported by evidence justifying exceptional circumstances and why it is in compliance with the overriding objective. Variation of directions 50D.7 Where parties are unable to comply with any order of the Court they must apply promptly to vary directions before deadlines for compliance have expired and seek further directions. An application to vary directions attracts a fee and the application notice [on the appropriate form] must: (i) provide full and proper explanations for why the current and existing directions have not been complied with; (ii) detail the views of the other parties to the appeal; (iii) include a draft order setting out in full the timetable and directions as varied i.e. a superseding order which stands alone. 50D.8 A failure to make the application prior to the expiry of the date specified in the Order will generally result in the refusal of the application unless good reasons are shown. Application to certify a point of law of general public importance 50D.9 Where an application is made under CrimPR 50.25(2)(b) the application must be made on the appropriate form accompanied by the relevant fee. 50D.10 Any response to the application must be made within 10 business days. 50D.11 Where an application to certify is granted but permission to appeal to the Supreme Court is refused, it shall be for those representing the Requested Person to apply for an extension of the Representation Order to cover proceedings in the Supreme Court, if so advised. 50D.12 The representation order may be extended by a Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated legal officer of the court. 50D.13 The result of the application to certify a point of law of general public importance and permission to appeal to the Supreme Court may be notified in advance to the legal representatives but legal representatives must not communicate it to the Requested Person until 1 hour before the pronouncement is made in open court. 50D.14 There shall be no public announcement of the result until after it has been formally pronounced. Application to reopen the determination of an appeal 50D.15 An application under CrimPR 50.27 to reopen an appeal must be referred to the court that determined the appeal, but may if circumstances require be considered by a Judge or Judges other than those who determined the original appeal. Application to extend required period for removal pursuant to section 36 of the Extradition Act 2003 50D.16 Were an application is made for an extension of the required period within which to extradite a Requested Person it must be accompanied by: (i) a witness statement explaining why it is not possible to remove the Requested Person within the required period and the proposed timetable for removal; (ii) a draft order 50D.17 The application to extend time may only be made within an extant required period for removal. 50D.18 Where extensions of time are sought for the same reason in respect of a number of Requested Persons who are due to be extradited at the same time, a single application may be made to the Court listing each of the Requested Persons for whom an extension is sought. 50D.19 The application may be determined by a Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated legal officer of the court and a single order listing those persons may be granted. Application for a discharge pursuant to section 42 of the Extradition Act 2003 50D.20 Where an application notice is issued seeking the discharge of a Requested Person it must be accompanied by: (i) the notification by the requesting state that the EAW has been withdrawn together with a translation of the same (ii) a witness statement containing: a. details of whether the withdrawn EAW is the only EAW outstanding in respect of the Requested Person b. details of other EAWs outstanding in respect of the Requested Person and the stage which the proceedings have reached c. whether only part of the EAW has been withdrawn d. details of any bail conditions e. details of any institution in which the Requested Person is being detained, the Requested Person’s prison number and date of birth. 50D.21 The decision to discharge may be made by a Lord Justice of Appeal, a Single Judge of the High Court, a Master of the Administrative Court or a nominated legal officer of the court. 50D.22 It is the responsibility of the High Court to serve the approved order on the appropriate institution and Westminster Magistrates’ Court. CPD XI Other proceedings 50E: EXTRADITION: COURT PAPERS Skeleton arguments 50E.1 The Court on granting permission to appeal or directing an oral hearing for permission to appeal will give directions as to the filing of skeleton arguments. Strict compliance is required with all time limits. 50E.2 A skeleton argument must: (a) not normally exceed 25 pages (excluding front sheets and back sheets) and be concise; (b) be printed on A4 paper in not less than 12 point font and 1.5 line spacing; (c) define the issues in the appeal; (d) be set out in numbered paragraphs; (e) be cross-referenced to any relevant document in the bundle; (f) be self-contained and not incorporate by reference material from previous skeleton arguments; (g) not include extensive quotations from documents or authorities. 50E.3 Where it is necessary to refer to an authority, the skeleton argument must: (a) state the proposition of law the authority demonstrates; and (b) identify but not quote the parts of the authority that support the proposition. 50E.4 If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why. 50E.5 A chronology of relevant events will be necessary in most appeals. 50E.6 Where a skeleton argument has been prepared in respect of an application for permission to appeal, the same skeleton argument may be relied upon in the appeal upon notice being given to the Court or a replacement skeleton may be lodged not less than 10 business days before the hearing of the appeal. 50E.7 At the hearing the Court may refuse to hear argument on a point not included in a skeleton argument filed within the prescribed time. Bundles 50E.8 The bundle for the hearing should be agreed by the parties save where the Requested Person is acting in person. In those circumstances the Court expects the Requesting State to prepare the bundle. 50E.9 The bundle must be paginated and indexed. 50E.10 Subject to any order made by the Court, the following documents must be included in the appeal bundle: (a) a copy of the appellant's notice; (b) a copy of any respondent's notice; (c) a copy of any appellant's or respondent's skeleton argument; (d) a copy of the order under appeal; (e) a copy of any order made by the Court in the exercise of its case management powers; (f) any judgment of the Court made in a previous appeal involving the party or parties which is relevant to the present proceedings. (g) where the bundle of papers reaches more than 200 pages, the parties should agree a core appeal bundle which must contain (a)-(f) above. 50E.11 The Bundle should only contain relevant documents and must not include duplicate documents. 50E.12 Bundles lodged with the Court will not be returned to the parties but will be destroyed in the confidential waste system at the conclusion of the proceedings and without further notification. CPD XI Other proceedings 50F: EXTRADITION: CONSEQUENCES OF NON COMPLIANCE WITH DIRECTIONS 50F.1 Failure to comply with these directions will lead to applications for permission and appeals being dealt with on the material available to the Court at the time when the decision is made. 50F.2 Judges dealing with extradition appeals will seek full and proper explanations for any breaches of the rules and the provisions of this Practice Direction. 50F.3 If no good explanation can be given immediately by counsel or solicitors, the senior partner or the departmental head responsible is likely to be called to court to explain any failure to comply with a court order. Where counsel or solicitors fail to obey orders of the Court and are unable to provide proper and sufficient reasons for their disobedience they may anticipate the matter being formally referred to the President of the Queen’s Bench Division with a recommendation that the counsel or solicitors involved be reported to their professional bodies. 50F.4 The court may also refuse to admit any material or any evidence not filed in compliance with the order for Directions or outside a time limit specified by the court 50F.5 A failure to comply with the time limits or other requirements for skeleton arguments will have the consequences specified in 50E.7. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION XII GENERAL APPLICATION CPD XII General application A: COURT DRESS A.1 In magistrates’ courts, advocates appear without robes or wigs. In all other courts, Queen’s Counsel wear a short wig and a silk (or stuff) gown over a court coat with bands, junior counsel wear a short wig and stuff gown with bands. Solicitors and other advocates authorised under the Courts and Legal Services Act 1990 wear a black solicitor’s gown with bands; they may wear short wigs in circumstances where they would be worn by Queen’s Counsel or junior counsel. A.2 High Court Judges hearing criminal cases may wear the winter criminal robe year-round. However, scarlet summer robes may be worn. CPD XII General application B: MODES OF ADDRESS AND TITLES OF JUDGES AND MAGISTRATES Modes of Address B.1 The following judges, when sitting in court, should be addressed as ‘My Lord’ or ‘My Lady’, as the case may be, whatever their personal status: (a) Judges of the Court of Appeal and of the High Court; (b) any Circuit Judge sitting as a judge of the Court of Appeal (Criminal Division) or the High Court under section 9(1) of the Senior Courts Act 1981 ; (c) any judge sitting at the Central Criminal Court; (d) any Senior Circuit Judge who is an Honorary Recorder. B.2 Subject to the paragraph above, Circuit Judges, qualifying judge advocates, Recorders and Deputy Circuit Judges should be addressed as ‘Your Honour’ when sitting in court. District Judges (Magistrates’ Courts) should be addressed as “Sir [or Madam]” or “Judge” when sitting in Court. Magistrates in court should be addressed through the Chairperson as “Sir[or Madam]” or collectively as “Your Worships”. Description B.3 In cause lists, forms and orders members of the judiciary should be described as follows: (a) Circuit Judges, as ‘His [or Her] Honour Judge A’. When the judge is sitting as a judge of the High Court under section 9(1) of the Senior Courts Act 1981 , the words ‘sitting as a judge of the High Court’ should be added; (b) Recorders, as ‘Mr [or Mrs, Ms or Miss] Recorder B’. This style is appropriate irrespective of any honour or title which the recorder might possess, but if in any case it is desired to include an honour or title, the alternative description, ‘Sir CD, Recorder’ or ‘The Lord D, Recorder’ may be used; (c) Deputy Circuit Judges, as ‘His [or Her] Honour EF, sitting as a Deputy Circuit Judge’. (d) qualifying judges advocates, as ‘His [or Her] Honour GH, sitting as a qualifying judge advocate.’ (e) District Judges (Magistrates’ Courts), as “District Judge (Magistrates’ Courts) J” CPD XII General application C: AVAILABILITY OF JUDGMENTS GIVEN IN THE COURT OF APPEAL AND THE HIGH COURT C.1 For cases in the High Court, reference should be made to Practice Direction 40E, the supplementary Practice Direction to the Civil Procedure Rules Part 40. C.2 For cases in the Court of Appeal (Criminal Division), the following provisions apply. Availability of reserved judgments before handing down, corrections and applications consequential on judgment C.3 Where judgment is to be reserved the Presiding Judge may, at the conclusion of the hearing, invite the views of the parties’ legal representatives as to the arrangements to be made for the handing down of the judgment. C.4 Unless the court directs otherwise, the following provisions apply where the Presiding Judge is satisfied that the judgment will attract no special degree of confidentiality or sensitivity. C.5 The court will provide a copy of the draft judgment to the parties’ legal representatives about three working days before handing down, or at such other time as the court may direct. Every page of every judgment which is made available in this way will be marked “Unapproved judgment: No permission is granted to copy or use in court.” The draft is supplied in confidence and on the conditions that: (a) neither the draft judgment nor its substance will be disclosed to any other person or used in the public domain; and (b) no action will be taken (other than internally) in response to the draft judgment, before the judgment is handed down. C.6 Unless the parties’ legal representatives are told otherwise when the draft judgment is circulated, any proposed corrections to the draft judgment should be sent to the clerk of the judge who prepared the draft (or to the associate, if the judge has no clerk) with a copy to any other party’s legal representatives, by 12 noon on the day before judgment is handed down. C.7 If, having considered the draft judgment, the prosecution will be applying to the Court for a retrial or either party wishes to make any other application consequent on the judgment, the judge’s clerk should be informed with a time estimate for the application by 12 noon on the day before judgment is handed down. This will enable the court to make appropriate listing arrangements and notify advocates to attend if the court so requires. There is no fee payable to advocates who attend the hand down hearing if not required to do so by the court. If either party is considering applying to the Court to certify a point for appeal to the Supreme Court, it would assist if the judge’s clerk could be informed at the same time, although this is not obligatory as under section 34 of the Criminal Appeal Act 1968 , the time limit for such applications is 28 days. Communication to the parties including the defendant or the victim C.8 The contents are not to be communicated to the parties, including to the defendant, respondent or the victim (defined as a person entitled to receive services under the Code of Practice for Victims of Crime) until two hours before the listed time for pronouncement of judgment. C.9 Judges may permit more information about the result of a case to be communicated on a confidential basis to the parties including to the defendant, respondent or the victim at an earlier stage if good reason is shown for making such a direction. C.10 If, for any reason, the parties’ legal representatives have special grounds for seeking a relaxation of the usual condition restricting disclosure to the parties, a request for relaxation of the condition may be made informally through the judge's clerk (or through the associate, if the judge has no clerk). C.11 If the parties or their legal representatives are in any doubt about the persons to whom copies of the draft judgment may be distributed they should enquire of the judge or Presiding Judge. C.12 Any breach of the obligations or restrictions in this section or failure to take reasonable steps to ensure compliance may be treated as contempt of court. Restrictions on disclosure or reporting C.13 Anyone who is supplied with a copy of the handed-down judgment, or who reads it in court, will be bound by any direction which the court may have given in a child case under section 39 of the Children and Young Persons Act 1933 or section 45 or 45A of the Youth Justice and Criminal Evidence Act 1999 , or any other form of restriction on disclosure, or reporting, of information in the judgment. C.14 Copies of the approved judgment can be ordered from the official shorthand writers, on payment of the appropriate fee. Judgments identified as of legal or public interest will generally be made available on the website managed by BAILLI: http://www.bailii.org/ CPD XII General Application D: Citation of Authority AND PROVISION OF COPIES OF JUDGMENTS TO THE COURT D.1 This Practice Direction applies to all criminal matters before the Court of Appeal (Criminal Division), the Crown Court and the magistrates’ courts. In relation to those matters only, Practice Direction (Citation of Authorities) [2012] 1 WLR 780 is hereby revoked. CITATION OF AUTHORITY D.2 In R v Erskine; R v Williams [2009] EWCA Crim 1425 , [2010] 1 W.L.R. 183 , (2009) 2 Cr. App. R. 29 the Lord Chief Justice stated: 75. The essential starting point, relevant to any appeal against conviction or sentence, is that, adapting the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced. 76. It follows that when the advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. Reference should not be made to authorities which do no more than either (a) illustrate the principle or (b) restate it. 78. Advocates must expect to be required to justify the citation of each authority relied on or included in the bundle. The court is most unlikely to be prepared to look at an authority which does no more than illustrate or restate an established proposition. 80. … In particular, in sentencing appeals, where a definitive Sentencing Guidelines Council guideline is available there will rarely be any advantage in citing an authority reached before the issue of the guideline, and authorities after its issue which do not refer to it will rarely be of assistance. In any event, where the authority does no more than uphold a sentence imposed at the Crown Court, the advocate must be ready to explain how it can assist the court to decide that a sentence is manifestly excessive or wrong in principle. D.3 Advocates should only cite cases when it is necessary to do so; when the case identifies or represents a principle or the development of a principle. In sentencing appeals, other cases are rarely helpful, providing only an illustration, and this is especially true if there is a sentencing guideline. Unreported cases should only be cited in exceptional circumstances, and the advocate must expect to explain why such a case has been cited. D.4 Advocates should not assume that because a case cited to the court is not referred to in the judgment the court has not considered it; it is more likely that the court was not assisted by it. D.5 When an authority is to be cited, whether in written or oral submissions, the advocate should always provide the neutral citation followed by the law report reference. D.6 The following practice should be followed: i) Where a judgment is reported in the Official Law Reports (A.C., Q.B., Ch., Fam.) published by the Incorporated Council of Law Reporting for England and Wales or the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing) one of those two series of reports must be cited; either is equally acceptable. However, where a judgment is reported in the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing) that reference must be given in addition to any other reference. Other series of reports and official transcripts of judgment may only be used when a case is not reported, or not yet reported, in the Official Law Reports or the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing). ii) If a judgment is not reported in the Official Law Reports, the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing), but it is reported in an authoritative series of reports which contains a headnote and is made by individuals holding a Senior Courts qualification (for the purposes of section 115 of the Courts and Legal Services Act 1990 ), that report should be cited. iii) Where a judgment is not reported in any of the reports referred to above, but is reported in other reports, they may be cited. iv) Where a judgment has not been reported, reference may be made to the official transcript if that is available, not the handed-down text of the judgment, as this may have been subject to late revision after the text was handed down. Official transcripts may be obtained from, for instance, BAILLI ( http://www.bailii.org/ ). D.7 In the majority of cases, it is expected that all references will be to the Official Law Reports and the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing); it will be rare for there to be a need to refer to any other reports. An unreported case should not be cited unless it contains a relevant statement of legal principle not found in reported authority, and it is expected that this will only occur in exceptional circumstances. Provision of copies of judgments to the Court D.8 The paragraphs below specify whether or not copies should be provided to the court. Authorities should not be included for propositions not in dispute. If more than one authority is to be provided, the copies should be presented in paginated and tagged bundles. D.9 If required, copies of judgments should be provided either by way of a photocopy of the published report or by way of a copy of a reproduction of the judgment in electronic form that has been authorised by the publisher of the relevant series, but in any event- i) the report must be presented to the court in an easily legible form (a 12-point font is preferred but a 10 or 11-point font is acceptable), and ii) the advocate presenting the report must be satisfied that it has not been reproduced in a garbled form from the data source. In any case of doubt the court will rely on the printed text of the report (unless the editor of the report has certified that an electronic version is more accurate because it corrects an error contained in an earlier printed text of the report). D.10 If such a copy is unavailable, a printed transcript such as from BAILLI may be included. Provision of copies to the Court of Appeal (Criminal Division) D.11 Advocates must provide to the Registrar of Criminal Appeals, with their appeal notice, respondent’s notice or skeleton argument, a list of authorities upon which they wish to rely in their written or oral submissions. The list of authorities should contain the name of the applicant, appellant or respondent and the Criminal Appeal Office number where known. The list should include reference to the relevant paragraph numbers in each authority. An updated list can be provided if a new authority is issued, or in response to a respondent’s notice or skeleton argument. From time to time, the Registrar may issue guidance as to the style or content of lists of authorities, including a suggested format; this guidance should be followed by all parties. The latest guidance is available from the Criminal Appeal Office. D.12 If the case cited is reported in the Official Law Reports, the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing), the law report reference must be given after the neutral citation, and the relevant paragraphs listed, but copies should not be provided to the court. D.13 If, exceptionally, reference is made to a case that is not reported in the Official Law Reports, the Criminal Appeal Reports or the Criminal Appeal Reports (Sentencing), three copies must be provided to the Registrar with the list of authorities and the relevant appeal notice or respondent’s notice (or skeleton argument, if provided). The relevant passages of the authorities should be marked or sidelined. Provision of copies to the Crown Court and the magistrates’ courts D.14 When the court is considering routine applications, it may be sufficient for the court to be referred to the applicable legislation or to one of the practitioner texts. However, it is the responsibility of the advocate to ensure that the court is provided with the material that it needs properly to consider any matter. D.15 If it would assist the court to consider any authority, the directions at paragraphs D.2 to D.7 above relating to citation will apply and a list of authorities should be provided. D.16 Copies should be provided by the party seeking to rely upon the authority in accordance with CrimPR 24.13. This Rule is applicable in the magistrates’ courts, and in relation to the provision of authorities, should also be followed in the Crown Court since courts often do not hold library stock (see CrimPR 25.17). Advocates should comply with paragraphs D.8 to D.10 relating to the provision of copies to the court. CPD XII General application E: PREPARATION OF JUDGMENTS: NEUTRAL CITATION E.1 Since 11 January 2001 every judgment of the Court of Appeal, and of the Administrative Court, and since 14 January 2002 every judgment of the High Court, has been prepared and issued as approved with single spacing, paragraph numbering (in the margins) and no page numbers. In courts with more than one judge, the paragraph numbering continues sequentially through each judgment and does not start again at the beginning of each judgment. Indented paragraphs are not numbered. A unique reference number is given to each judgment. For judgments of the Court of Appeal, this number is given by the official shorthand writers, Merrill Legal Solutions (Tel: 020 7421 4000 ext.4036). For judgments of the High Court, it is provided by the Courts Recording and Transcription Unit at the Royal Courts of Justice. Such a number will also be furnished, on request to the Courts Recording and Transcription Unit, Royal Courts of Justice, Strand, London WC2A 2LL (Tel: 020 7947 7820), (e-mail: [email protected]) for High Court judgments delivered outside London. E.2 Each Court of Appeal judgment starts with the year, followed by EW (for England and Wales), then CA (for Court of Appeal), followed by Civ or Crim and finally the sequential number. For example, ‘Smith v Jones [2001] EWCA Civ 10 ’. E.3 In the High Court, represented by HC, the number comes before the divisional abbreviation and, unlike Court of Appeal judgments, the latter is bracketed: (Ch), (Pat), (QB), (Admin), (Comm), (Admlty), (TCC) or (Fam), as appropriate. For example, ‘ [2002] EWHC 123 (Fam) ’, or ‘ [2002] EWHC 124 (QB) ’, or ‘ [2002] EWHC 125 (Ch) ’. E.4 This ‘neutral citation’, as it is called, is the official number attributed to the judgment and must always be used at least once when the judgment is cited in a later judgment. Once the judgment is reported, this neutral citation appears in front of the familiar citation from the law reports series. Thus: ‘Smith v Jones [2001] EWCA Civ 10 ; [2001] QB 124 ; [2001] 2 All ER 364 ’, etc. E.5 Paragraph numbers are referred to in square brackets. When citing a paragraph from a High Court judgment, it is unnecessary to include the descriptive word in brackets: (Admin), (QB), or whatever. When citing a paragraph from a Court of Appeal judgment, however, ‘Civ’ or ‘Crim’ is included. If it is desired to cite more than one paragraph of a judgment, each numbered paragraph should be enclosed with a square bracket. Thus paragraph 59 in Green v White [2002] EWHC 124 (QB) would be cited: ‘Green v White [2002] EWHC 124 at [59]’; paragraphs 30 – 35 in Smith v Jones would be ‘Smith v Jones [2001] EWCA Civ 10 at [30] – [35]’; similarly, where a number of paragraphs are cited: ‘Smith v Jones [2001] EWCA Civ 10 at [30], [35] and [40 – 43]’. E.6 If a judgment is cited more than once in a later judgment, it is helpful if only one abbreviation is used, e.g., ‘Smith v Jones’ or ‘Smith’s case’, but preferably not both (in the same judgment). CPD XII General application F: CITATION OF HANSARD F.1 Where any party intends to refer to the reports of Parliamentary proceedings as reported in the Official Reports of either House of Parliament (“Hansard”) in support of any such argument as is permitted by the decisions in Pepper v Hart [1993] AC 593 and Pickstone v Freemans PLC [1989] AC 66 , or otherwise, he must, unless the court otherwise directs, serve upon all other parties and the court copies of any such extract, together with a brief summary of the argument intended to be based upon such extract. No other report of Parliamentary proceedings may be cited. F.2 Unless the court otherwise directs, service of the extract and summary of the argument shall be effected not less than 5 clear working days before the first day of the hearing, whether or not it has a fixed date. Advocates must keep themselves informed as to the state of the lists where no fixed date has been given. Service on the court shall be effected by sending three copies to the Registrar of Criminal Appeals, Royal Courts of Justice, Strand, London, WC2A 2LL or to the court manager of the relevant Crown Court centre, as appropriate. If any party fails to do so, the court may make such order (relating to costs or otherwise) as is, in all the circumstances, appropriate. CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION XIII LISTING CPD XIII Listing A: JUDICIAL RESPONSIBILITY FOR LISTING AND KEY PRINCIPLES Listing as a judicial responsibility and function A.1 Listing is a judicial responsibility and function. The purpose is to ensure that all cases are brought to a hearing or trial in accordance with the interests of justice, that the resources available for criminal justice are deployed as effectively as possible, and that cases are heard by an appropriate judge or bench with the minimum of delay. A.2 The agreement reached between the Lord Chief Justice and the Secretary of State for Constitutional Affairs and Lord Chancellor set out in a statement to the House of Lords on 26 January 2004 (‘the Concordat’), states that judges, working with HMCTS, are responsible for deciding on the assignment of cases to particular courts and the listing of those cases before particular judges. Therefore: (a) The Presiding Judges of each circuit have the overall responsibility for listing at all courts, Crown and magistrates’, on their circuit; (b) Subject to the supervision of the Presiding Judges, the Resident Judge at each Crown Court has the general responsibility within his or her court centre for the allocation of criminal judicial work, to ensure the just and efficient despatch of the business of the court or group of courts. This includes overseeing the deployment of allocated judges at the court or group, including the distribution of work between all the judges allocated to that court. A Resident Judge must appoint a deputy or deputies to exercise his or her functions when he or she is absent from his or her court centre. See also paragraph A.5: Discharge of judicial responsibilities; (c) The listing officer in the Crown Court is responsible for carrying out the day-to-day operation of listing practice under the direction of the Resident Judge. The listing officer at each Crown Court centre has one of the most important functions at that Crown Court and makes a vital contribution to the efficient running of that Crown Court and to the efficient operation of the administration of criminal justice; (d) In the magistrates’ courts, the Judicial Business Group, subject to the supervision of the Presiding Judges of the circuit, is responsible for determining the listing practice in that area. The day-to-day operation of that listing practice is the responsibility of the justices’ clerk with the assistance of the listing officer. Key principles of listing A.3 When setting the listing practice, the Resident Judge or the Judicial Business Group should take into account principles a-j: (a) Ensure the timely trial of cases and resolution of other issues (such as confiscation) so that justice is not delayed. The following factors are relevant: i. In general, each case should be tried within as short a time of its arrival in the court as is consistent with the interests of justice, the needs of victims and witnesses, and with the proper and timely preparation by the prosecution and defence of their cases in accordance with the directions and timetable set; ii. Priority should be accorded to the trial of young defendants, and cases where there are vulnerable or young witnesses. In R v Barker [2010] EWCA Crim 4 , the Lord Chief Justice highlighted “the importance to the trial and investigative process of keeping any delay in a case involving a child complainant to an irreducible minimum”; iii. Custody time limits (CTLs) should be observed, see CPD XIII Listing F; iv. Every effort must be made to avoid delay in cases in which the defendant is on bail; (b) Ensure that in the magistrates’ court unless impracticable, non-custody anticipated guilty plea cases are listed 14 days after charge, and non-custody anticipated not guilty pleas are listed 28 days after charge; (c) Provide, when possible, for certainty and/or as much advance notice as possible, of the trial date; and take all reasonable steps to ensure that the trial date remains fixed; (d) Ensure that a judge or bench with any necessary authorisation and of appropriate experience is available to try each case and, wherever desirable and practicable, there is judicial continuity, including in relation to post-trial hearings; (e) Strike an appropriate balance in the use of resources, by taking account of: i. The efficient deployment of the judiciary in the Crown Court and the magistrates’ courts taking into account relevant sitting requirements for magistrates. See CPD XIII Annex 1 for information to support judicial deployment in the magistrates’ courts; ii. The proper use of the courtrooms available at the court; iii. The provision in long and/or complex cases for adequate reading time for the judiciary; iv. The facilities in the available courtrooms, including the security needs (such as a secure dock), size and equipment, such as video and live link facilities; v. The proper use of those who attend the Crown Court as jurors; vi. The availability of legal advisers in the magistrates’ courts; vii. The need to return those sentenced to custody as soon as possible after the sentence is passed, and to facilitate the efficient operation of the prison escort contract; (f) Provide where practicable: i. the defendant and the prosecution with the advocate of their choice where this does not result in any delay to the trial of the case; and, ii. for the efficient deployment of advocates, lawyers and associate prosecutors of the Crown Prosecution Service, and other prosecuting authorities, and of the resources available to the independent legal profession, for example by trying to group certain cases together; (g) Meet the need for special security measures for category A and other high-risk defendants; (h) Ensure that proper time (including judicial reading time) is afforded to hearings in which the court is exercising powers that impact on the rights of individuals, such as applications for investigative orders or warrants; (i) Consider the significance of ancillary proceedings, such as confiscation hearings, and the need to deal with such hearings promptly and, where possible, for such hearings to be conducted by the trial judge; (j) Provide for government initiatives or projects approved by the Lord Chief Justice. A.4 Although the listing practice at each Crown Court centre and magistrates’ court will take these principles into account, the listing practice adopted will vary from court to court depending particularly on the number of courtrooms and the facilities available, the location and the workload, its volume and type. Discharge of judicial responsibilities A.5 The Resident Judge of each court is responsible for: i. ensuring that good practice is implemented throughout the court, such that all hearings commence on time; ii. ensuring that the causes of trials that do not proceed on the date originally fixed are examined to see if there is any systemic issue; iii. monitoring the general performance of the court and the listing practices; iv. monitoring the timeliness of cases and reporting any cases of serious concern to the Presiding Judge; v. maintaining and reviewing annually a list of Recorders, qualifying judge advocates and Deputy Circuit Judges authorised to hear appeals from the magistrates’ courts unless such a list is maintained by the Presiding Judge. A.6 The Judicial Business Group for each clerkship subject to the overall jurisdiction of the Presiding Judge is responsible for: i. monitoring the workload and anticipated changes which may impact on listing policies; ii. ensuring that any listing practice meets the needs of the system as a whole. CPD XIII Listing B: CLASSIFICATION B.1 The classification structure outlined below is solely for the purposes of trial in the Crown Court. The structure has been devised to accommodate practical administrative functions and is not intended to reflect a hierarchy of the offences therein. Offences are classified as follows: Class 1: A: i. Murder; ii. Attempted Murder; iii. Manslaughter; iv. Infanticide; v. Child destruction ( section 1(1) of the Infant Life (Preservation) Act 1929 ; vi. Abortion ( section 58 of the Offences Against the Person Act 1861 ); vii. Assisting a suicide; viii. Cases including section 5 of the Domestic Violence, Crime and Victims Act 2004 , as amended (if a fatality has resulted); ix. Soliciting, inciting, encouraging or assisting, attempting or conspiring to commit any of the above offences or assisting an offender having committed such an offence. Class 1: B: i. Genocide; ii. Torture, hostage-taking and offences under the War Crimes Act 1991 ; iii. Offences under ss.51 and 52 International Criminal Courts Act 2001 ; iv. An offence under section 1 of the Geneva Conventions Act 1957 ; v. Terrorism offences (where offence charged is indictable only and took place during an act of terrorism or for the purposes of terrorism as defined in s.1 of the Terrorism Act 2000 ); vi. Piracy, under the Merchant Shipping and Maritime Security Act 1997 ; vii. Treason; viii. An offence under the Official Secrets Acts; ix. Incitement to disaffection; x. Soliciting, inciting, encouraging or assisting, attempting or conspiring to commit any of the above offences or assisting an offender having committed such an offence. Class 1: C: i. Prison mutiny, under the Prison Security Act 1992 ; ii. Riot in the course of serious civil disturbance; iii. Serious gang related crime resulting in the possession or discharge of firearms, particularly including a campaign of firebombing or extortion, especially when accompanied by allegations of drug trafficking on a commercial scale; iv. Complex sexual offence cases in which there are many complainants (often under age, in care or otherwise particularly vulnerable) and/or many defendants who are alleged to have systematically groomed and abused them, often over a long period of time; v. Cases involving people trafficking for sexual, labour or other exploitation and cases of human servitude; vi. Soliciting, inciting, encouraging or assisting, attempting or conspiring to commit any of the above offences or assisting an offender having committed such an offence. Class 1: D: i. Causing death by dangerous driving; ii. Causing death by careless driving; iii. Causing death by unlicensed, disqualified or uninsured driving; iv. Any Health and Safety case resulting in a fatality or permanent serious disability; v. Any other case resulting in a fatality or permanent serious disability; vi. Soliciting, inciting, encouraging or assisting, attempting or conspiring to commit any of the above offences or assisting an offender having committed such an offence. Class 2: A i. Arson with intent to endanger life or reckless as to whether life was endangered; ii. Cases in which explosives, firearms or imitation firearms are used or carried or possessed; iii. Kidnapping or false imprisonment (without intention to commit a sexual offence but charged on the same indictment as a serious offence of violence such as under section 18 or section 20 of the Offences Against the Person Act 1861 ); iv. Cases in which the defendant is a police officer, member of the legal profession or a high profile or public figure; v. Cases in which the complainant or an important witness is a high profile or public figure; vi. Riot otherwise than in the course of serious civil disturbance; vii. Child cruelty; viii. Cases including section 5 of the Domestic Violence, Crime and Victims Act 2004 , as amended (if no fatality has resulted); ix. Soliciting, inciting, encouraging or assisting, attempting or conspiring to commit any of the above offences or assisting an offender having committed such an offence. Class 2: B i. Any sexual offence, with the exception of those included in Class 1C; ii. Kidnapping or false imprisonment (with intention to commit a sexual offence or charged on the same indictment as a sexual offence); iii. Soliciting, inciting, encouraging or assisting, attempting or conspiring to commit any of the above offences or assisting an offender having committed such an offence. Class 2: C: i. Serious, complex fraud; ii. Serious and/or complex money laundering; iii. Serious and/or complex bribery; iv. Corruption; v. Complex cases in which the defendant is a corporation (including cases for sentence as well as for trial); vi. Any case in which the defendant is a corporation with a turnover in excess of £1bn (including cases for sentence as well as for trial); vii. Soliciting, inciting, encouraging or assisting, attempting or conspiring to commit any of the above offences or assisting an offender having committed such an offence. Class 3: All other offences not listed in the classes above. Deferred Prosecution Agreements B.2 Cases coming before the court under section 45 and Schedule 17 of the Crime and Courts Act 2013 must be referred to the President of the Queen’s Bench Division who will allocate the matter to a judge from a list of judges approved by the Lord Chief Justice. Only the allocated judge may thereafter hear any matter or make any decision in relation to that case. Criminal Cases Review Commission B.3 Where the CCRC refers a case upon conviction from the magistrates’ courts to the Crown Court, this shall be dealt with at a Crown Court centre designated by the Senior Presiding Judge. CPD XIII Listing C: REFERRAL OF CASES IN THE CROWN COURT TO THE RESIDENT JUDGE AND TO THE PRESIDING JUDGES C.1 This Practice Direction specifies: (a) cases which must be referred to a Presiding Judge for release; and (b) cases which must be referred to the Resident Judge before being assigned to a judge, Recorder or qualifying judge advocate to hear. It is applicable to all Crown Courts, but its application may be modified by the Senior Presiding Judge or the Presiding Judges, with the approval of the Senior Presiding Judge, through the provision of further specific guidance to Resident Judges in relation to the allocation and management of the work at their court. C.2 This Practice Direction does not prescribe the way in which the Resident Judge gives directions as to listing policy to the listing officer; its purpose is to ensure that there is appropriate judicial control over the listing of cases. However, the Resident Judge must arrange with the listing officers a satisfactory means of ensuring that all cases listed at their court are listed before judges, Recorders or qualifying judge advocates of suitable seniority and experience, subject to the requirements of this Practice Direction. The Resident Judge should ensure that listing officers are made aware of the contents and importance of this Practice Direction, and that listing officers develop satisfactory procedures for referral of cases to him or her. C.3 In order to assist the Resident Judge and the listing officer, all cases sent to the Crown Court should where possible include a brief case summary prepared by the prosecution. The prosecutor should ensure that any factors that make the case complex, or would lead it to be referred to the Resident Judge or a Presiding Judge are highlighted. The defence may also send submissions to the court, again highlighting any areas of complexity or any other factors that might assist in the case being allocated to an appropriate judge. Cases in the Crown Court to be referred to the Resident Judge C.4 All cases in Class 1A, 1B, 1C, 1D, 2A and 2C must be referred to the Resident Judge as must any case which appears to raise particularly complex, sensitive or serious issues. C.5 Resident Judges should give guidance to the judges and staff of their respective courts as to which Class 2B cases should be referred to them following consultation with the Senior Presiding Judge. This will include any cases that may be referred to the Presiding Judge, see below. Class 2B cases to be referred to the Resident Judge are likely to be identified by the list officer, or by the judge at the first hearing in the Crown Court. C.6 Once a case has been referred to the Resident Judge, the Resident Judge should refer the case to the Presiding Judge, following the guidance below, or allocate the case to an appropriate category of judge, and if possible to a named judge. Cases in the Crown Court to be referred to a Presiding Judge C.7 All cases in Class 1A, 1B and 1C must be referred by the Resident Judge to a Presiding Judge, as must a case in any class which is: i. An usually grave or complex case or one in which a novel and important point of law is to be raised; ii. A case where it is alleged that the defendant caused more than one fatality; iii. A non-fatal case of baby shaking where serious injury resulted; iv. A case where the defendant is a police officer, or a member of the legal profession or a high profile figure; v. A case which for any reason is likely to attract exceptional media attention; vi. A case where a large organisation or corporation may, if convicted, be ordered to pay a very large fine; vii. Any case likely to last more than three months. C.8 Resident Judges are encouraged to refer any other case if they think it is appropriate to do so. C.9 Presiding Judges and Resident Judges should agree a system for the referral of cases to the Presiding Judge, ideally by electronic means. The system agreed should include provision for the Resident Judge to provide the Presiding Judge with a brief summary of the case, a clear recommendation by the Resident Judge about the judges available to try the case and any other comments. A written record of the decision and brief reasons for it must be made and retained. C.10 Once a case has been referred to the Presiding Judge, the Presiding Judge may retain the case for trial by a High Court Judge, or release the case back to the Resident Judge, either for trial by a named judge, or for trial by an identified category of judges, to be allocated by the Resident Judge. CPD XIII Listing D: AUTHORISATION OF JUDGES D.1 Judges must be authorised by the Lord Chief Justice before they may hear certain types of case. D.2 Judges (other than High Court Judges) to hear Class 1A cases must be authorised to hear such cases. Any judge previously granted a ‘Class 1’ or ‘murder’ authorisation is authorised to hear Class 1A cases. Judges previously granted an ‘attempted murder’ (including soliciting, incitement or conspiracy thereof) authorisation can only deal with these cases within Class 1A. D.3 Judges (other than High Court Judges) to hear sexual offences cases in Class 1C or any case within Class 2B must be authorised to hear such cases. Any judge previously granted a ‘Class 2’ or ‘serious sex offences’ authorisation is authorised to hear sexual offences cases in Class 1C or 2B. It is a condition of the authorisation that it does not take effect until the judge has attended the relevant Judicial College course; the Resident Judge should check in the case of newly authorised judges that they have attended the course. Judges who have been previously authorised to try such cases should make every effort to ensure their training is up-to-date and maintained by attending the Serious Sexual Offences Seminar at least once every three years. See CPD XIII Annex 2 for guidance in dealing with sexual offences in the youth court. D.4 Cases in the magistrates’ courts involving the imposition of very large fines i. Where a defendant appears before a magistrates’ court for an either way offence, to which CPD XIII Annex 3 applies the case must be dealt with by a DJ (MC) who has been authorised to deal with such cases by the Chief Magistrate. ii. The authorised DJ (MC) must first consider whether such cases should be allocated to the Crown Court or, where the defendant pleads guilty, committed for sentence under s.3 Powers of Courts (Sentence) Act 2000, and must do so when the DJ (MC) considers the offence or combination of offences so serious that the Crown Court should deal with the defendant had they been convicted on indictment. iii. If an authorised DJ (MC) decides not to commit such a case the reasons must be recorded in writing to be entered onto the court register. CPD XIII Listing E: ALLOCATION OF BUSINESS WITHIN THE CROWN COURT E.1 Cases in Class 1A may only be tried by: i. a High Court Judge, or ii. a Circuit Judge, or Deputy High Court Judge, authorised to try such cases and provided that the Presiding Judge has released the case for trial by such a judge. E.2 Cases in Class 1B may only be tried by: i. a High Court Judge, or ii. a Circuit Judge, or a Deputy High Court Judge, provided that the Presiding Judge has released the case for trial by such a judge. E.3 Cases in Class 1C may only be tried by: i. a High Court Judge, or ii. a Circuit Judge, or a Deputy High Court Judge, or Deputy Circuit Judge, authorised to try such cases (if the case requires the judge to be authorised to hear sexual offences cases), provided that the Presiding Judge has released the case for trial by such a judge, or, if the case is a sexual offence, the Presiding Judge has assigned the case to that named judge. See also CPD XIII Listing C.10 E.4 Cases in Class 1D and 2A may be tried by: i. a High Court Judge, or ii. a Circuit Judge, or Deputy High Court Judge, or Deputy Circuit Judge, or a Recorder or a qualifying judge advocate, provided that either the Presiding Judge has released the case or the Resident Judge has allocated the case for trial by such a judge; with the exception that Class 2A i) cases may not be tried by a Recorder or qualifying judge advocate. E.5 Cases in Class 2B may be tried by: i. a High Court Judge, or ii. a Circuit Judge, or Deputy High Court Judge, or Deputy Circuit Judge, or a Recorder or a qualifying judge advocate, authorised to try such cases and provided that either the Presiding Judge has released the case or the Resident Judge has allocated the case for trial by such a judge. E.6 Cases in Class 2C may be tried by: i. a High Court Judge, or ii. a Circuit Judge, or Deputy High Court Judge, or Deputy Circuit Judge, or a Recorder or a qualifying judge advocate, with suitable experience (for example, with company accounts or other financial information) and provided that either the Presiding Judge has released the case or the Resident Judge has allocated the case for trial by such a judge. E.7 Cases in Classes 1D, 2A and 2C will usually be tried by a Circuit Judge. E.8 Cases in Class 3 may be tried by a High Court Judge, or a Circuit Judge, a Deputy Circuit Judge, a Recorder or a qualifying judge advocate. A case in Class 3 shall not be listed for trial by a High Court Judge except with the consent of a Presiding Judge. E.9 If a case has been allocated to a judge, Recorder or qualifying judge advocate, the preliminary hearing should be conducted by the allocated judge if practicable, and if not, if possible by a judge of at least equivalent standing. PCMHs should only be heard by Recorders or qualifying judge advocates with the approval of the Resident Judge. E.10 For cases in Class 1A, 1B or 1C, or any case that has been referred to the Presiding Judge, the preliminary hearing and PCMH must be conducted by a High Court Judge; by a Circuit Judge; or by a judge authorised by the Presiding Judges to conduct such hearings. In the event of a guilty plea before such an authorised judge, the case will be adjourned for sentencing and will immediately be referred to the Presiding Judge who may retain the case for sentence by a High Court Judge, or release the case back to the Resident Judge, either for sentence by a named judge, or for sentence by an identified category of judges, to be allocated by the Resident Judge. E.11 Appeals from decisions of magistrates’ courts shall be heard by: i. a Resident Judge, or ii. a Circuit Judge, nominated by the Resident Judge, who regularly sits at the Crown Court centre, or iii. a Recorder or qualifying judge advocate or a Deputy Circuit Judge listed by the Presiding Judge to hear such appeals; or, if there is no such list nominated by the Resident Judge to hear such appeals; iv. and, no less than two and no more than four justices of the peace, none of whom took part in the decision under appeal; v. where no Circuit Judge or Recorder or qualifying judge advocate satisfying the requirements above is available, by a Circuit Judge, Recorder, qualifying judge advocate or Deputy Circuit Judge selected by the Resident Judge to hear a specific case or cases listed on a specific day. E.12 Allocation or committal for sentence following breach (such as a matter in which a community order has been made, or a suspended sentence passed), should, where possible, be listed before the judge who originally dealt with the matter or, if not, before a judge of the same or higher level. E.13 Applications for removal of a driving disqualification should be made to the location of the Crown Court where the order of disqualification was made. Where possible, the matter should be listed before the judge who originally dealt with the matter or, if not, before a judge of the same or higher level. CPD XIII Listing F: LISTING OF TRIALS, CUSTODY TIME LIMITS AND TRANSFER OF CASES Estimates of trial length F.1 Under the regime set out in the Criminal Procedure Rules, the parties will be expected to provide an accurate estimate of the length of trial at the hearing where the case is to be managed based on a detailed estimate of the time to be taken with each witness to be called, and accurate information about the availability of witnesses. F.2 At the hearing the judge will ask the prosecution to clarify any custody time limit (‘CTL’) dates. The court clerk must ensure the CTL date is marked clearly on the court file or electronic file. When a case is subject to a CTL all efforts must be made at the first hearing to list the case within the CTL and the judge should seek to ensure this. Further guidance on listing CTL cases can be found below. Cases that should usually have fixed trial dates F.3 The cases where fixtures should be given will be set out in the listing practice applicable at the court, but should usually include the following: i. Cases in classes 1A, 1B, 1C, 2B and 2C; ii. Cases involving vulnerable and intimidated witnesses (including domestic violence cases), whether or not special measures have been ordered by the court; iii. Cases where the witnesses are under 18 or have to come from overseas; iv. Cases estimated to last more than a certain time – the period chosen will depend on the size of the centre and the available judges; v. Cases where a previous fixed hearing has not been effective; vi. Re-trials; and, vii. Cases involving expert witnesses. Custody Time Limits F.4 Every effort must be made to list cases for trial within the CTL limits set by Parliament. The guiding principles are: i. At the first hearing in the Crown Court, prosecution will inform the court when the CTL lapses. ii. All efforts must be made to list the case within the CTL. The CTL may only be extended in accordance with s.22 Prosecution of Offences Act 1985 and the Prosecution of Offences (Custody Time Limits) Regulations 1987. iii. If suitable, given priority and listed on a date not less than 2 weeks before the CTL expires, the case may be placed in a warned list. iv. The CTL must be kept under continual review by the parties, HMCTS and the Resident Judge. v. If the CTL is at risk of being exceeded, an additional hearing should take place and should be listed before the Resident Judge or trial judge or other judge nominated by the Resident Judge. vi. An application to extend the CTL in any case listed outside the CTL must be considered by the court whether or not it was listed with the express consent of the defence. vii. Any application to extend CTLs must be considered as a matter of urgency. The reasons for needing the extension must be ascertained and fully explained to the court. viii. Where courtroom or judge availability is an issue, the court must itself list the case to consider the extension of any CTL. The Delivery Director of the circuit must provide a statement setting out in detail what has been done to try to accommodate the case within the CTL. ix. Where courtroom or judge availability is not in issue, but all parties and the court agree that the case will not be ready for trial before the expiration of the CTL, a date may be fixed outside the CTL. This may be done without prejudice to any application to extend the CTLs or with the express consent of the defence; this must be noted on the papers. F.5 As legal argument may delay the swearing in of a jury, it is desirable to extend the CTL to a date later than the first day of the trial. Re-trials ordered by the Court of Appeal F.6 The Crown Court must comply with the directions of the Court of Appeal and cannot vary those directions without reference to the Court of Appeal. F.7 In cases where a retrial is ordered by the Court of Appeal the CTL is 112 days starting from the date that the new indictment is preferred i.e. from the date that the indictment is delivered to the Crown Court. Court centres should check that CREST has calculated the dates correctly and that it has not used 182 days on cases that have previously been ‘sent’. Changes to the date of fixed cases F.8 Once a trial date or window is fixed, it should not be vacated or moved without good reason. Under the Criminal Procedure Rules, parties are expected to be ready by the trial date. F.9 The listing officer may, in circumstances determined by the Resident Judge, agree to the movement of the trial to a date to which the defence and prosecution both consent, provided the timely hearing of the case is not delayed. The prosecution will be expected to have consulted the witnesses before agreeing to any change. F.10 In all other circumstances, requests to adjourn or vacate fixtures or trial windows must be referred to the Resident Judge for his or her personal attention; the Resident Judge may delegate the decision to a named deputy. Transferring cases to another court F.11 Transfer between courts on the same circuit must be agreed by the Resident Judges of each court, subject to guidance from the Presiding Judges of the circuit. F.12 Transfer of trials between circuits must be agreed between the Presiding Judges and Delivery Directors of the respective circuits. F.13 Transfers may be agreed either in specific cases or in accordance with general principles agreed between those cited above. CPD XIII Listing G: LISTING OF HEARINGS OTHER THAN TRIALS G.1 In addition to trials, the court’s listing practice will have to provide court time for shorter matters, such as those listed below. These hearings are important, often either for setting the necessary case management framework for the proper and efficient preparation of cases for trial, or for determining matters that affect the rights of individuals. They must be afforded the appropriate level of resource that they require to be considered properly, and this may include judicial reading time as well as an appropriate length of hearing. G.2 The applicant is responsible for notifying the court, and the other party if appropriate, and ensuring that the papers are served in good time, including a time estimate for judicial reading time and for the hearing. The applicant must endeavour to complete the application within the time estimate provided unless there are exceptional circumstances. G.3 Hearings other than trials include the following: i. Applications for search warrants and Production Orders, sufficient reading time must be provided, see G.8 below; ii. Bail applications; iii. Applications to vacate or adjourn hearings; iv. Applications for dismissal of charges; v. Preliminary hearings; vi. Preparatory hearings; vii. Plea and case management hearings; viii. Applications for disclosure of further unused material under section 8 of CPIA 1996 ; ix. Case progression or case management hearings; x. Applications in respect of sentence indications not sought at the PCMH; xi. Sentences; xii. Civil applications under the Anti-Social Behaviour, Crime and Policing Act 2014 ; xiii. Appeals from the magistrates’ court: it is essential in all cases where witnesses are likely to be needed on the appeal to check availability before a date is fixed. G.4 Short hearings should not generally be listed before a judge such that they may delay the start or continuation of a trial at the Crown Court. It is envisaged that any such short hearing will be completed by 10.30am or start after 4.30pm. G.5 Each Crown Court equipped with a video link with a prison must have in place arrangements for the conduct of PCMHs, other pre-trial hearings and sentencing hearings by video link. Notifying sureties of hearing dates G.6 Where a surety has entered into a recognizance in the magistrates’ court in respect of a case allocated or sent to the Crown Court and where the bail order or recognizance refers to attendance at the first hearing in the Crown Court, the defendant should be reminded by the listing officer that the surety should attend the first hearing in the Crown Court in order to provide further recognizance. If attendance is not arranged, the defendant may be remanded in custody pending the recognisance being provided. G.7 The Court should also notify sureties of the dates of the hearing at the Crown Court at which the defendant is ordered to appear in as far in advance as possible: see the observations of Parker LJ in R v Crown Court at Reading ex p. Bello [1992] 3 All ER 353 . Applications for Production Orders and Search Warrants G.8 The use of production orders and search warrants involve the use of intrusive state powers that affect the rights and liberties of individuals. It is the responsibility of the court to ensure that those powers are not abused. To do so, the court must be presented with a properly completed application, on the appropriate form, which includes a summary of the investigation to provide the context for the order, a clear explanation of how the statutory requirements are fulfilled, and full and frank disclosure of anything that might undermine the basis for the application. Further directions on the proper making and consideration of such applications will be provided by Practice Direction. However, the complexity of the application must be taken into account in listing it such that the judge is afforded appropriate reading time and the hearing is given sufficient time for the issues to be considered thoroughly, and a short judgment given. Confiscation and Related Hearings G.9 Applications for restraint orders should be determined by the Resident Judge, or a judge nominated by the Resident Judge, at the Crown Court location at which they are lodged. G.10 In order to prevent possible dissipation of assets of significant value, applications under the Proceeds of Crime Act 2002 should be considered urgent when lists are being fixed. In order to prevent potential prejudice, applications for the variation and discharge of orders, for the appointment of receivers, and applications to punish alleged breaches of orders as a contempt of court should similarly be treated as urgent and listed expeditiously. Confiscation Hearings G.11 It is important that confiscation hearings take place in good time after the defendant is convicted or sentenced. CPD XIII Annex 1 : GENERAL PRINCIPLES FOR THE DEPLOYMENT OF THE JUDICIARY IN THE MAGISTRATES’ COURT This distils the full deployment guidance issued in November 2012. The relevant sections dealing specifically with the allocation of work within the magistrates’ court have been incorporated into this Practice Direction. It does not seek to replace the guidance in its entirety. PRESUMPTIONS 1. The presumptions which follow are intended to provide an acceptable and flexible framework establishing the deployment of the DJ (MC)s and magistrates. The system must be capable of adaptation to meet particular needs, whether of locality or caseload. In any event, the presumptions which follow are illustrative not exhaustive. 2. DJ(MC)s should generally (not invariably) be deployed in accordance with the following presumptions (“the Presumptions”): (a) Cases involving complex points of law and evidence. (b) Cases involving complex procedural issues. (c) Long cases (included on grounds of practicality). (d) Interlinked cases (given the need for consistency, together with their likely complexity and novelty). (e) Cases for which armed police officers are required in court, such as high end firearms cases. (f) A share of the more routine business of the Court, including case management and pre-trial reviews, (for a variety of reasons, including the need for DJ(MC)s to have competence in all areas of work and the desirability of an equitable division of work between magistrates and DJ(MC)s, subject always to the interests of the administration of justice). (g) Where appropriate, in supporting the training of magistrates. (h) Occasionally, in mixed benches of DJ(MC)s and magistrates (with a particular view both to improving the case management skills of magistrates and to improving the culture of collegiality). (i) In the short term tackling of particular local backlogs (“backlog busting”), some times in combination with magistrates from the local or (with the SPJ’s approval) adjoining benches. 3. In accordance with current arrangements certain classes of cases necessarily require DJ(MC)s and have therefore been excluded from the above presumptions; these are as follows: (a) Extradition; (b) Terrorism; (c) Prison Adjudications; (d) Sex cases in the Youth Court as per Annex 2; (e) Cases where the defendant is likely to be sentenced to a very large fine, see Annex 3; (f) The Special Jurisdiction of the Chief Magistrate. 4. In formulating the Presumptions, the following considerations have been taken into account: (a) The listing of cases is here, as elsewhere, a judicial function, see CPD XIII A.1. In the magistrates’ courts the Judicial Business Group, subject to the supervision of the Presiding Judges of the circuit, is responsible for determining the day to day listing practice in that area. The day-to-day operation of that listing practice is the responsibility of the justices’ clerk with the assistance of the listing officer. (b) Equally, providing the training of magistrates is a responsibility of justices’ clerks. (c) It is best not to treat “high profile” cases as a separate category but to consider their listing in the light of the principles and presumptions. The circumstances surrounding high profile cases do not permit ready generalisation, save that they are likely to require especially sensitive handling. Listing decisions involving such cases will often benefit from good communication at a local level between the justices’ clerk, the DJ (MC) and the Bench Chairman. (d) Account must be taken of the need to maintain the competences of all members of the judiciary sitting in the magistrates’ court. CPD XIII Annex 2 SEXUAL OFFENCES IN THE YOUTH COURT 1. This annex sets out the procedure to be applied in the Youth Court in all cases involving allegations of sexual offences which are capable of being sent for trial at the Crown Court under the grave crime provisions. 2. This applies to all cases involving such charges, irrespective of the gravity of the allegation, the age of the defendant and / or the antecedent history of the defendant ( () So, for example, every allegation of sexual touching, under s3 of the Sexual Offences Act 2003 , is covered by this protocol. ) . 3. This does not alter the test ( () S et out in the Sentencing Guidelines Council’s definitive guideline, entitled “Overarching Principles – Sentencing Youths” Published by the Sentencing Guidelines Council in November 2009. ) that the Youth Court must apply when determining whether a case is a “grave crime”. 4. In the Crown Court, cases involving allegations of sexual offences frequently involve complex and sensitive issues and only those Circuit Judges and Recorders who have been specifically authorised and who have attended the appropriate Judicial College course may try this type of work. 5. A number of District Judges (Magistrates’ Courts) have now undertaken training in dealing with these difficult cases and have been specifically authorised to hear cases involving serious sexual offences which fall short of requiring to be sent to the Crown Court (“an authorised DJ (MC)”). As such, a procedure similar to that of the Crown Court will now apply to allegations of sexual offences in the Youth Court. Procedure 6. The determination of venue in the Youth Court is governed by section 51 Crime and Disorder Act 1998 , which provides that the youth must be tried summarily unless charged with such a grave crime that long term detention is a realistic possibility ( () Section 24(1) of the Magistrates Court Act 1980 ) , or that one of the other exceptions to this presumption arises. 7. Wherever possible such cases should be listed before an authorised DJ (MC), to decide whether the case falls within the grave crime provisions and should therefore be sent for trial. If jurisdiction is retained and the allegation involves actual, or attempted, penetrative activity, the case must be tried by an authorised DJ (MC). In all other cases, the authorised DJ (MC) must consider whether the case is so serious and / or complex that it must be tried by an authorised DJ (MC), or whether the case can be heard by any DJ (MC) or any Youth Court Bench. 8. If it is not practicable for an authorised DJ(MC) to determine venue, any DJ(MC) or any Youth Court Bench may consider that issue. If jurisdiction is retained, appropriate directions may be given but the case papers, including a detailed case summary and a note of any representations made by the parties, must be sent to an authorised DJ(MC) to consider. As soon as possible the authorised DJ(MC) must decide whether the case must be tried by an authorised DJ(MC) or whether the case is suitable to be heard by any DJ(MC) or any Youth Court Bench; however, if the case involves actual, or alleged, penetrative activity, the trial must be heard by an authorised DJ(MC). 9. Once an authorised DJ(MC) has decided that the case is one which must be tried by an authorised DJ(MC), and in all cases involving actual or alleged penetrative activity, all further procedural hearings should, so far as practicable, be heard by an authorised DJ(MC). Cases remitted for sentence 10. All cases which are remitted for sentence from the Crown Court to the Youth Court should be listed for sentence before an authorised DJ(MC). Arrangements for an authorised DJ(MC) to be appointed 11. Where a case is to be tried by an authorised DJ(MC) but no such Judge is available, the Bench Legal Adviser should contact the Chief Magistrates Office for an authorised DJ(MC) to be assigned. CPD XIII Annex 3 CASES INVOLVING VERY LARGE FINES IN THE MAGISTRATES’ COURT 1. This Annex applies when s.85 Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force and the magistrates’ court has the power to impose a maximum fine of any amount. 2. An authorised DJ (MC) must deal with any allocation decision, trial and sentencing hearing in the following types of cases which are triable either way: a) Cases involving death or significant, life changing injury or a high risk of death or significant, life-changing injury; b) Cases involving substantial environmental damage or polluting material of a dangerous nature; c) Cases where major adverse effect on human health or quality of life, animal health or flora has resulted; d) Cases where major costs through clean up, site restoration or animal rehabilitation have been incurred; e) Cases where the defendant corporation has a turnover in excess of £10 million but does not exceed £250 million, and has acted in a deliberate, reckless or negligent manner; f) Cases where the defendant corporation has a turnover in excess of £250 million; g) Cases where the court will be expected to analyse complex company accounts; h) High profile cases or ones of an exceptionally sensitive nature. 3. The prosecution agency must notify the justices’ clerk where practicable of any case of the type mentioned in paragraph 2 of this Annex, no less than 7 days before the first hearing to ensure that an authorised DJ (MC) is available at the first hearing. 4. The justices’ clerk shall contact the Office of the Chief Magistrate to ensure that an authorised DJ (MC) can be assigned to deal with such a case if there is not such a person available in the courthouse. The justices’ clerk shall also notify a Presiding Judge of the Circuit that such a case has been listed. 5. Where an authorised DJ (MC) is not appointed at the first hearing the court shall adjourn the case. The court shall ask the accused for an indication of his plea, but shall not allocate the case nor, if the accused indicates a guilty plea, sentence him, commit him for sentence, ask for a pre sentence report or give any indication as to likely sentence that will be imposed. The justices’ clerk shall ensure an authorised DJ (MC) is appointed for the following hearing and notify the Presiding Judge of the Circuit that the case has been listed. 6. When dealing with sentence, section 3 of the Powers of Criminal Courts (Sentence) Act 2000 can be invoked where, despite the magistrates’ court having maximum fine powers available to it, the offence or combination of offences make it so serious that the Crown Court should deal with it as though the person had been convicted on indictment. 7. An authorised DJ (MC) should consider allocating the case to the Crown Court or committing the accused for sentence. CPD XIII Annex 4 This annex replaces the Protocol on the case management of Terrorism Cases issued in December 2006 by the President of the Queen’s Bench Division. APPLICATION 1. This annex applies to ‘terrorism cases’. For the purposes of this annex a case is a ‘terrorism case’ where: (a) one of the offences charged against any of the defendants is indictable only and it is alleged by the prosecution that there is evidence that it took place during an act of terrorism or for the purposes of terrorism as defined in s1 of the Terrorism Act 2000 . This may include, but is not limited to: (i) murder; (ii) manslaughter; (iii) an offence under section 18 of the Offences against the Person Act 1861 (wounding with intent); (iv) an offence under section 23 or 24 of that Act (administering poison etc); (v) an offence under section 28 or 29 of that Act (explosives); (vi) an offence under section 2 , 3 or 5 of the Explosive Substances Act 1883 (causing explosions); (vii) an offence under section 1(2) of the Criminal Damage Act 1971 (endangering life by damaging property); (viii) an offence under section 1 of the Biological Weapons Act 1974 (biological weapons); (ix) an offence under section 2 of the Chemical Weapons Act 1996 (chemical weapons); (x) an offence under section 56 of the Terrorism Act 2000 (directing a terrorist organisation); (xi) an offence under section 59 of that Act (inciting terrorism overseas); (xii) offences under (v), (vii) and (viii) above given jurisdiction by virtue of section 62 of that Act (terrorist bombing overseas); and (xiii) an offence under section 5 of the Terrorism Act 2006 (preparation of terrorism acts). (b) one of the offences charged is indictable only and includes an allegation by the prosecution of serious fraud that took place during an act of terrorism or for the purposes of terrorism as defined in s1 of the Terrorism Act 2000 , and the prosecutor gives a notice under section 51 B of the Crime and Disorder Act 1998 (Notices in serious or complex fraud cases) ; (c) one of the offences charged is indictable only, which includes an allegation that a defendant conspired, incited or attempted to commit an offence under sub paragraphs (1)(a) or (b) above; or (d) it is a case (which can be indictable only or triable either way) that a judge of the terrorism cases list (see paragraph 2(a) below) considers should be a terrorism case. In deciding whether a case not covered by subparagraphs (1)(a), (b) or (c) above should be a terrorism case, the judge may hear representations from the Crown Prosecution Service. The terrorism cases list 2(a) All terrorism cases, wherever they originate in England and Wales, will be managed in a list known as the ‘terrorism cases list’ by such judges of the High Court as are nominated by the President of the Queen’s Bench Division. 2(b) Such cases will be tried, unless otherwise directed by the President of the Queen’s Bench Division, by a judge of the High Court as nominated by the President of the Queen’s Bench Division. 3. The judges managing the terrorism cases referred to in paragraph 2(a) will be supported by the London and South Eastern Regional Co-ordinator’s Office (the ‘Regional Co-ordinator’s Office’). An official of that office or an individual nominated by that office will act as the case progression officer for cases in that list for the purposes of CrimPR 3.4. Procedure after charge 4. Immediately after a person has been charged in a terrorism case, anywhere in England and Wales, a representative of the Crown Prosecution Service will notify the person on the 24 hour rota for special jurisdiction matters at Westminster Magistrates’ Court of the following information: (a) the full name of each defendant and the name of his solicitor of other legal representative, if known; (b) the charges laid; (c) the name and contact details of the Crown Prosecutor with responsibility for the case, if known; and (d) confirmation that the case is a terrorism case. 5. The person on the 24-hour rota will then ensure that all terrorism cases wherever they are charged in England and Wales are listed before the Chief Magistrate or other District Judge designated under the Terrorism Act 2000 . Unless the Chief Magistrate or other District Judge designated under the Terrorism Act 2000 directs otherwise, the first appearance of all defendants accused of terrorism offences will be listed at Westminster Magistrates’ Court. 6. In order to comply with section 46 of the Police and Criminal Evidence Act 1984 , if a defendant in a terrorism case is charged at a police station within the local justice area in which Westminster Magistrates’ Court is situated, the defendant must be brought before Westminster Magistrates’ Court as soon as is practicable and in any event not later than the first sitting after he is charged with the offence. If a defendant in a terrorism case is charged in a police station outside the local justice area in which Westminster Magistrates’ Court is situated, unless the Chief Magistrate or other designated judge directs otherwise, the defendant must be removed to that area as soon as is practicable. He must then be brought before Westminster Magistrates’ Court as soon as is practicable after his arrival in the area and in any event not later than the first sitting of Westminster Magistrates’ Court after his arrival in that area. 7. As soon as is practicable after charge a representative of the Crown Prosecution Service will also provide the Regional Listing Co-ordinator’s Office with the information listed in paragraph 4 above. 8. The Regional Co-ordinator’s Office will then ensure that the Chief Magistrate and the Legal Aid Agency have the same information. Cases to be sent to the Crown Court under section 51 of the Crime and Disorder Act 1998 9. The court should ordinarily direct that the plea and trial preparation hearing should take place about 14 days after charge. 10. The sending magistrates’ court should contact the Regional Listing Co-ordinator’s Office who will be responsible for notifying the magistrates’ court as to the relevant Crown Court to which to send the case. 11. In all terrorism cases, the magistrates’ court case progression form for cases sent to the Crown Court under section 51 of the Crime and Disorder Act 1998 should not be used. Instead of the automatic directions set out in that form, the magistrates’ court shall make the following directions to facilitate the preliminary hearing at the Crown Court: (a) three days prior to the preliminary hearing in the terrorism cases list, the prosecution must serve upon each defendant and the Regional Listing co-ordinator: (i) a preliminary summary of the case; (ii) the names of those who are to represent the prosecution, if known; (iii) an estimate of the length of the trial; (iv) a suggested provisional timetable which should generally include: • the general nature of further enquiries being made by the prosecution, • the time needed for the completion of such enquiries, • the time required by the prosecution to review the case, • a timetable for the phased service of the evidence, • the time for the provision by the Attorney General for his consent if necessary, • the time for service of the detailed defence case statement, • the date for the case management hearing, and • the estimated trial date; (v) a preliminary statement of the possible disclosure issues setting out the nature and scale of the problem, including the amount of unused material, the manner in which the prosecution seeks to deal with these matters and a suggested timetable for discharging their statutory duty; and (vi) any information relating to bail and custody time limits. (b) one day prior to the preliminary hearing in the terrorist cases list, each defendant must serve in writing on the Regional Listing Co-ordinator and the prosecution: (i) the proposed representation; (ii) observations on the timetable; and (iii) an indication of plea and the general nature of the defence. Cases to be sent to the Crown Court after the prosecutor gives notice under section 51 B of the Crime and Disorder Act 1998 12. If a terrorism case is to be sent to the Crown Court after the prosecutor gives a notice under section 51 B of the Crime and Disorder Act 1998 the magistrates’ court should proceed as in paragraphs 9 – 11 above. 13. When a terrorism case is so sent the case will go into the terrorism list and be managed by a judge as described in paragraph 2(a) above. The plea and trial preparation hearing at the Crown Court 14. At the plea and trial preparation hearing, the judge will determine whether the case is one to remain in the terrorism list and if so, give directions setting the provisional timetable. 15. The Legal Aid Agency must attend the hearing by an authorised officer to assist the court. Use of video links 16. Unless a judge otherwise directs, all Crown Court hearings prior to the trial will be conducted by video link for all defendants in custody. Security 17. The police service and the prison service will provide the Regional Listing Co-ordinator’s Office with an initial joint assessment of the security risks associated with any court appearance by the defendants within 14 days of charge. Any subsequent changes in circumstances or the assessment of risk which have the potential to impact upon the choice of trial venue will be notified to the Regional Listing Co-ordinator’s Office immediately. CPD XIII Annex 5 MANAGEMENT OF CASES FROM THE ORGANISED CRIME DIVISION OF THE CROWN PROSECUTION SERVICE This annex replaces the guidance issued by the Senior Presiding Judge in January 2014. 1. The Organised Crime Division (OCD) of the CPS is responsible for prosecution of cases from the National Crime Agency (NCA). Typically, these cases involve more than one defendant, are voluminous and raise complex and specialised issues of law. It is recognised that if not closely managed, such cases have the potential to cost vast amounts of public money and take longer than necessary. 2. This annex applies to all cases handled by the OCD. Designated court centres 3. Subject to the overriding discretion of the Presiding Judges of the circuit, OCD cases should normally be heard at Designated Court Centres (DCC). The process of designating court centres for this purpose has taken into account geographical factors and the size, security and facilities of those court centres. The designated court centres are: (a) Northern Circuit: Manchester, Liverpool and Preston. (b) North Eastern Circuit: Leeds, Newcastle and Sheffield. (c) Western Circuit: Bristol and Winchester. (d) South Eastern Circuit (not including London): Reading, Luton, Chelmsford, Ipswich, Maidstone, Lewes and Hove. (e) South Eastern Circuit (London only): Southwark, Blackfriars, Kingston, Woolwich, Croydon and the Central Criminal Court. (f) Midland Circuit: Birmingham, Leicester and Nottingham. (g) Wales Circuit: Cardiff, Swansea and Mold. Selection of designated court centres 4. If arrests are made in different parts of the country and the OCD seeks to have all defendants tried by one Crown Court, the OCD will, at the earliest opportunity, write to the relevant court cluster manager with a recommendation as to the appropriate designated court centre, requesting that the decision be made by the relevant Presiding Judges. In the event that the designated court centre within one region is unable to accommodate a case, for example, as a result of a custody time limit expiry date, consideration may be given to transferring the case to a DCC in another region with the consent of the relevant Presiding Judges. 5. There will be a single point of contact person at the OCD for each HMCTS region, to assist listing co-ordinators. 6. The single contact person for each HMCTS region will be the relevant cluster manager, with the exception of the South Eastern Circuit where the appropriate person will be the Regional Listing Co-ordinator. Designation of the trial judge 7. The trial judge will be assigned by the Presiding Judge at the earliest opportunity, and in accordance with CPD XIII Listing E: Allocation of Business within the Crown Court. Where the trial judge is unable to continue with the case, all further pre-trial hearings should be by a single judge until a replacement has been assigned. Procedure after charge 8. Within 24 hours of the laying of a charge, a representative of the OCD will notify the relevant cluster manager of the following information to enable an agreement to be reached between that cluster manager and the reviewing CPS lawyer before the first appearance as to the DCC to which the case should be sent : (a) the full name of each defendant and the name of his legal representatives, if known; (b) the charges laid; and (c) the name and contact details of the Crown Prosecutor with responsibility for the case. Exceptions 9. Where it is not possible to have a case dealt with at a DCC, the OCD should liaise closely with the relevant cluster manager and the Presiding Judges to ensure that the cases are sent to the most appropriate court centre. This will, among other things, take into account the location of the likely source of the case, convenience of the witnesses, travelling distance for OCD staff and facilities at the court centres. 10. In the event that it is allocated to a non-designated court centre, the OCD should be permitted to make representations in writing to the Presiding Judges within 14 days as to why the venue is not suitable. The Presiding Judges will consider the reasons and, if necessary, hold a hearing. The CPS may renew their request at any stage where further reasons come to light that may affect the original decision on venue. 11. Nothing in this annex should be taken to remove the right of the defence to make representations as to the venue.

```yaml citation: '[2015] EWCA Crim 1567' date: '2015-09-29' judges: - LORD CHIEF JUSTICE OF ENGLAND AND WALES ```

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 368 Case No: 202201705 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LUTON His Honour Judge Evans Royal Courts of Justice Strand, London, WC2A 2LL Date: 5 April 2023 Before: LADY JUSTICE MACUR MR JUSTICE FRASER and MR JUSTICE BUTCHER - - - - - - - - - - - - - - - - - - - - - Between : REX - and - OLEKSANDR ROMANENKO Applicant/Appellant - - - - - - - - - - - - - - - - - - - - Judgment - - - - - - - - - - - - - - - - - - - - - Mr Jason Cross (instructed by Cantaris Locke Solicitors ) for the Appellant Mr Ian Hope and Ms Lisa Goddard (instructed by CPS ) for the Respondent Hearing date: 22 February 2023 This judgment is to be handed down by the judge remotely by circulation to the parties’ advisers by email and release to the National Archive. The date for hand-down is deemed to be 5 April 2023. Mr Justice Fraser: 1. This is an application for an extension of time of 82 days in which to seek leave to appeal against conviction, which was referred by the Single Judge directly to the Full Court. At the end of the hearing on 22 February 2023, during which we considered that application, the application for permission to appeal and the consequent appeal in respect of count 2, we allowed the appeal against conviction with reasons to follow. This judgment contains those reasons. 2. We received written and oral submissions from Mr Cross for the applicant/appellant, and also by Mr Hope and Ms Goddard for the prosecution, all of whom appeared at the trial below. We are grateful to them for their assistance. We shall refer to Oleksandr Romanenko as ‘the appellant’ throughout this judgment for convenience. 3. On 10 February 2022, in the Crown Court at Luton before His Honour Judge Evans, the appellant, who was aged 33, was unanimously convicted by the jury on two counts. The first count was one 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 second count was that of possessing criminal property, contrary to section 329(1) (c) of the Proceeds of Crime Act 2002 . Count 1 had originally been charged on the indictment as a count of conspiring to supply controlled drugs of class A. The indictment was amended during the trial, following a successful submission of no case to answer by Mr Cross; the outcome of that application was to remove the charge of conspiracy to supply class A drugs, and replace it with a count of being concerned in the supply of class A drugs, upon which the appellant was convicted. The drugs in question were cocaine and the criminal property was cash, namely approximately £117,000 which was found in a car being driven by the appellant when he was stopped by the police. That money was contained in two places in the car. The significant proportion of it (approximately £112,000) being in a rucksack found in the boot of the car; and a smaller amount of over £4,000 being contained in an envelope, that was found in a pocket on the back of one of the front car seats. 4. On 3 January 2023, the appellant was sentenced to 5 years’ imprisonment upon count 1 and 2 years’ imprisonment concurrent upon count 2. There are two grounds of appeal; in summary the first ground relates to the amendment of count 1 on the indictment, and the second ground relates to the conviction on count 2. 5. Other defendants relevant to the conspiracy that was originally charged were as follows. George Hyde pleaded guilty to four counts, namely conspiracy to supply cocaine, conspiracy to supply cannabis, transferring criminal property and possession of cocaine with intent to supply. He was sentenced to 8 years’ imprisonment. Another conspirator, Michael Southall, pleaded guilty to conspiracy to supply cocaine and was sentenced to 11 years’ imprisonment. They both pleaded guilty before trial and therefore took no part in the trial. The case for the prosecution was that they were at the centre of the conspiracy, assisted by the other defendants, including the appellant, who denied their involvement. 6. Of the other defendants, Salman Butt was convicted of two counts of possessing criminal property and sentenced to 4 years’ imprisonment. Another defendant, Steven Rose, was acquitted of possessing criminal property. 7. The original count 1, namely that of conspiracy to supply class A drugs, was one upon which the appellant was jointly charged with Rose, as being part of the conspiracy together with Southall and Hyde. The earlier guilty pleas by Southall and Hyde established a conspiracy in which at least they had been engaged. The principal issue for the jury was whether the appellant, and/or Rose, were part of that conspiracy with Hyde and Southall. Background facts 8. On 18 December 2020, the appellant drove to Old Silsoe Road, Clophill, and met Hyde, who was already under police surveillance. Hyde had been observed leaving his property carrying a rucksack. Hyde got into the appellant’s car and gave him the rucksack before leaving the vehicle. The appellant drove away; police officers stopped him a short time later. His car was searched and officers recovered the rucksack. It was found to contain £111,935 in cash. A further £4,355 was recovered in a white envelope in a pocket behind the front passenger seat. The prosecution case was that the money recovered was the proceeds of drug dealing or was payment for drugs. Alternatively, it was said that if the appellant was not involved in the conspiracy, he either knew or suspected that the money was the product of criminal activity, it was being given to him to launder and he was therefore guilty of a money laundering offence. The presence of the cash recovered from the car was therefore integral to the way that both counts against the appellant were put by the prosecution. 9. The prosecution evidence included agreed facts of the guilty pleas of Hyde and Southall, and their involvement in the conspiracy in dealing cocaine. It was the prosecution case that the appellant’s meeting with Hyde matched the pattern of Hyde’s previous meetings with others who were involved in the conspiracy. The evidence concerning the recovery of the money in the rucksack given to the appellant by Hyde was agreed and the prosecution sought the drawing of an adverse inference from the appellant’s silence at interview following arrest 10. At the close of the prosecution case, on 3 February 2022, Mr Cross made a submission of no case to answer in relation to count 1, on the basis that there was no evidence connecting the appellant to the conspiracy; and that the appellant’s meeting with Hyde on the single occasion and taking the rucksack were not evidence of his involvement in any conspiracy. 11. The judge rejected the prosecution submissions to the contrary. He observed that a “perfectly proper inference” in the circumstances was that the money was the proceeds of criminal activity, but that, “there is no other evidence, for instance telephone evidence or that sort of thing that either [Rose and/or the appellant] were involved…in the wider conspiracy with other people”. He concluded that for both Rose and/or the appellant to be guilty of conspiracy, they “must know that there is in existence a scheme which goes beyond the illegal act which he agrees to do, and the same principle, of course, applies to the case of [the appellant]”. 12. Consequently, the prosecution made an application to amend count 1 of the indictment, to charge the appellant with being concerned in the supply of cocaine contrary to the same section of the Misuse of Drugs Act. Mr Cross made a cross application to discharge the jury. He submitted that, as a result of the case initially proceeding on a charge of conspiracy against the appellant, evidence before the jury concerning the admitted conspiracy between Hyde and Southall was inadmissible as regards the proposed amended count 1 and was highly prejudicial to the appellant. Further , he submitted that the appellant’s case had been prepared and conducted to meet the charge of conspiracy to supply class A drugs, and the shift in the prosecution’s case against the appellant caused unfairness. 13. The judge decided that no prejudice would be caused to the appellant by the proposed amendment since “the evidence that’s been put before the jury so far, is the evidence that would be relied upon, and it may be that Mr Romanenko in that sense is in rather a better position than he had been before I came to this judgment.” The second count remained as before, namely one of possessing criminal property, contrary to section 329(1) (c) of the Proceeds of Crime Act 2002 . He refused the application to discharge the jury, finding that there was no unfairness and that the evidence in relation to Hyde and Southall and other features of that conspiracy would have been admissible against the appellant under the bad character provisions in any event. 14. Significantly, as regards the second ground of appeal, during the prosecution submissions on the application of no case to answer, count 2 was expressly described as an alternate count to the, then charged, conspiracy in count 1. We note the following exchanges between Mr Hope and the judge in discussing what the evidential difference was between the two counts: “MR HOPE: Well, the way that we’ve put it is – that we’re putting it that Mr Romanenko has been paid basically for the drugs. And if the jury agree with that, the reason he’s taken £111,000 direct from Mr Hyde is that represents payment for cocaine --- JUDGE: Right. So --- MR HOPE: --- then that is part and parcel, we say, of count 1. If that’s wrong and he’s merely – it’s boxed off, it’s merely laundering money --- JUDGE: Yes. MR HOPE: --- we’d have to see what he has to say about it. JUDGE: So count 2 is an alternative, is that what you’re telling me? MR HOPE: It’s effectively an alternative, yes. I think in fairness, I opened it pretty much as that . I think I used the phrase, “in any event ” or “even if that’s not right. ” JUDGE: All right. Well, I --- MR HOPE: It’s effectively – yes.” (emphasis added) Subsequently: “MR HOPE: It’s effectively an alternative is how I would put it . I understand that we haven’t got to discussing how the jury are going to be directed yet. But I can well understand how the court might say if you convict of count 1, there’s no requirement to return a verdict in relation to count 2. Because his involvement in count 1 is caught up with the accepting of the bag. I accept that. JUDGE: Well, I think it’s more acute than that. I think what you’ve just explained to me, if he was guilty of count 1 he couldn’t be guilty of count 2. It’s either payment or it’s money laundering. It can’t be both, can it? Because it’s the same amount – it’s the same money.” (emphasis added) 15. In the ruling on the application of no case to answer, the judge said: “[The appellant] was in possession of criminal property, on the Crown’s case. By any definition, that was either payment for or the proceeds of wholesale drug dealing amounts, the very amounts that Hyde has admitted, and it’s open to the jury properly to conclude that that money related to Hyde’s cocaine wholesaling. The division of the money is suggestive of a payment to Romanenko for either selling drugs to Hyde or for taking money from Hyde to launder. In view of the high amount of cash it’s open to the jury, in my judgment, to infer that it was payment for drugs, for cocaine. If they not sure, it would be open to them to consider the alternative of being in possession of criminal property . But in the case of Romanenko the same principles with regard to the conspiracy count apply. There is no evidence that he was involved before or after the date that we’re concerned with. There’s no telephone evidence suggestive of a relationship beyond this period and, in my judgment, no proper evidence from which the jury could conclude or infer that he had an awareness of the particular conspiracy that Hyde was involved in, together with Southall and the others.” (emphasis added) 16. The issue for the jury on count 1 was whether the appellant was concerned in the supply of cocaine; the issue on count 2 was whether he knew or suspected that the money was the product of criminal activity. 17. The defence case was that the appellant believed that both the sums of money recovered, namely the £111,935 in the rucksack and the £4355 in the envelope, were from legitimate sources and he did not know or suspect that they were the product either of drug dealing or wider criminal activity. The appellant gave evidence in his own defence. He stated that the £111,935 belonged to a friend in Ukraine. His friend had told him that he had earned the money from the sale of cryptocurrency, and the friend had asked the appellant to collect the money and deliver it to a company who would then deliver it to Ukraine. The appellant said that he agreed to do this. He also explained that the £4355 was given to him by another friend, who had asked him to arrange for it to be delivered to her parents in Ukraine. 18. In summing up the case to the jury, the judge correctly identified the prosecution case that the two counts were alternatives, saying: “The prosecution say that there are only two possibilities. Either the money in his car was from the sale of drugs, plus the smaller amount payment for him, his part in that sale, or that it's money earned from the sale of drugs, by Hyde for instance, that Mr Romanenko is in the business of laundering. In either case, the prosecution say that the money does constitute a person's benefit from crime, and Romanenko knew it. He'd either sold the drugs, or he was laundering the money. Both were criminal activities and he knew it. That's the prosecution case.” 19. However, this was not made clear in the Route to Verdict document provided, and in the event the jury convicted the appellant of both counts. 20. The amended Grounds of Appeal assert that the judge was wrong: (1) to allow the prosecution to amend the indictment to add a count of being concerned in the supply of cocaine. This allowed the prosecution to shift its ground considerably; led to a real risk of injustice by depriving the appellant of the proper opportunity to consider and meet the prosecution case; and there was no evidence upon which the jury could safely conclude that the appellant played some part in an enterprise to supply cocaine. (2) to direct the jury that they could convict the appellant if they concluded that he knew the money was payment for drugs or criminal property, which contradicted the prosecution case that count 2 was an alternative count. Moreover, it was unfair to the appellant because it allowed the jury to treat the counts as cross-admissible rather than as alternatives. 21. Ground one was expanded upon in terms that since the agreed facts concerning Hyde and Southall implicated the appellant in a conspiracy, it had been in his interest to agree the facts at the start of trial. However, that evidence of the conspiracy between the others was irrelevant to the amended count 1 and highly prejudicial. The appellant was unable to remedy this unfairness. Therefore, the judge should not have allowed the prosecution to add the new count or should have discharged the jury. Discussion 22. It is clear that the amendment of count 1 was to reflect two things. First, as the judge found, the lack of any evidence that the appellant had been involved in the conspiracy. Secondly, that the judge considered that there was sufficient evidence for a jury, properly directed, to find that the appellant was guilty of the underlying substantive drugs offence that reflected the evidence concerning his involvement including his dealing with Hyde. That is, whether or not he was involved in a conspiracy, there was sufficient evidence of him being concerned in the supply of class A drugs. 23. We are not persuaded that this was a “shift of ground” by the prosecution, as is argued by Mr Cross. Rather, it is more accurately described as a narrowing of the prosecution case to the substantive offence. 24. The power to amend an indictment arises under section 5(1) of the Indictments Act 1915 : “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.” 25. Criminal PD10A “The Indictment” provides: “Where the prosecutor wishes to substitute or add counts to a draft indictment, or to invite the court to allow an indictment to be amended, so that the draft indictment, or indictment, will charge offences which differ from those with which the defendant first was charged, the defendant should be given as much notice as possible of what is proposed.” 26. All will depend upon the facts of any particular case, the stage of the trial at which the amendment is sought, and the nature of the amendment. Here, the amendment narrowed down, rather than changed or shifted, the nature of the case that the appellant had to meet. This was done at the close of the prosecution case and it was made clear to the jury there was no basis for count 1 as originally charged, and the jury formally returned a not guilty verdict on that count. In those circumstances, we are unpersuaded that there was any injustice or prejudice to the appellant. 27. Mr Cross relies upon R v Gregory [1972] 1 WLR 991. In brief, the defendant, a police officer, was convicted of handling stolen property. The count on the indictment had originally stated that the ‘property’ – a starter motor - was the property of someone called Wilkes. At the conclusion of the defence case, the judge deleted the words in the indictment which identified the details of the alleged owner of the property, leaving the charge that the starter motor had been stolen. The defendant argued that the only case which the defence had dealt with at trial was that alleged by the Crown at the commencement of the trial, namely that the motor had belonged to Wilkes. However, after the count had been amended, the jury were directed that they could convict if they were sure that the starter motor was the property of some unknown person. The Court of Appeal held that because the starter motor was of such a common and everyday kind, it was necessary for the indictment to provide details of who was said to have actually owned it when bringing a charge of handling it as stolen goods. Edmund Davies LJ, giving the judgment of the Court, held that: “We do not agree with the view of the recorder that in the present case the assertion as to ownership contained in the particulars of count 8 were mere surplusage. It was desirable that they should have been inserted, they were properly inserted, and they informed the defence of the nature of the case and the only case that the Crown set out to establish, a case which (for the reasons we have already indicated) later dissolved into thin air. Accordingly we do not think that the recorder was justified in allowing the amendment to be made, although it is true that a very extensive power of amending is conferred upon the court by section 5 of the Indictments Act 1915 . But, quite apart from the question as to whether the amendment permitted in this case was a proper one or not, this court is strongly of the view that to allow it at so late a stage was to run the risk of injustice being done….” 28. In our judgment, that was a decision on the specific facts of the case and is wholly distinguishable from this case. The amendment in that case changed the entire nature of the case that the defendant had to meet and was made after all the evidence had concluded. The injustice was obvious. In this case, the later, narrower, ground was founded on the same evidence and did not change the focus of the defence. 29. Indeed, in our judgment, the jury would have been entitled to convict the appellant of the amended charge even if there had been no amendment of the indictment if they were sure that he was guilty of the charge of supplying class A drugs, pursuant to section 6(3) of the Criminal Law Act 1967 . That is, the elements in the unamended count 1 on the indictment amount to or include the elements of the amended offence. See Blackstones’ Criminal Practice 2023 at D19.42 and R v Lillis [1972] 2 QB 236 , 30. Section 1 of the Criminal Law Act 1977 (as amended by the Criminal Attempts Act 1981) provides that: “Subject to the following provisions of this Part of this Act , if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either— (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question.” 31. Evidence admissible against two or more conspirators is admissible against them all, without there necessarily being any direct connection between all of the other conspirators; see section 118(1) (7 ) Criminal Justice Act 2003 32. Once count 1 was amended, not all of the agreed facts concerning Hyde and Southall were relevant in the case against the appellant. However, that did not mean that it was unfair for the judge to permit the amendment of the indictment. In his summing up, the trial judge addressed the jury solely in relation to the agreed position regarding Hyde; he was the person who had passed the rucksack to the appellant and his plea of guilty and conviction as a drug dealer were plainly admissible on the amended count 1 against the appellant. 33. The jury already knew that the conspiracy count could not proceed and had been directed to find the appellant not guilty on that count following the submission of no case to answer. That, together with the directions given relating to the agreed facts, ensured there was no unfairness or prejudice to the appellant. There was no good basis to discharge the jury. 34. There was plainly evidence upon which the jury could conclude that the appellant had been involved in the supply of cocaine: he had received a very large amount of money in cash in the rucksack from a man with extensive drug connections, who had accepted that he was involved in a conspiracy to supply class A drugs. 35. There is no merit in this ground. We refuse the application for permission to appeal. The necessity to consider an extension of time falls away. The second ground of appeal 36. Alternative counts can arise in different circumstances. Some more serious offences contain within them the elements of lesser offences, for example, a charge under section 18 of the Offences Against the Person Act 1861 (“OAPA 1861”), causing grievous bodily harm with intent to cause such an injury, includes the lesser offence of inflicting grievous bodily harm under section 20 OAPA 1861. 37. A separate alternative count will not always appear separately on the indictment, but the jury will be directed that the lesser offence is an alternative as appropriate. This type of situation is described in Blackstone’s Criminal Practice 2023 at D19.71 as “not strict alternatives” but “counts of descending gravity”. 38. In R v McEvilly [2008] EWCA Crim 1162, a defendant had attacked his victim, whom he stabbed many times. He was charged with three counts; attempted murder, an offence under section 18 OAPA 1861 and also an offence under section 20 OAPA 1861, each in the alternative. All of the offences arose out of the same attack by him. The defendant pleaded guilty to the section 20 offence, then stood trial on the other two counts. He was convicted of the section 18 offence shortly after the judge had given the majority direction. The judge then asked the jury, having taken that verdict, whether, if they were given more time, there was a reasonable prospect of their reaching a majority verdict on count 1, which was the charge of attempted murder. The jury said that there was; they retired again, and then returned a guilty verdict on that charge too. As Keene LJ observed in the Court of Appeal: “[9] The result of the procedure adopted in this case is that the applicant now has a record which shows convictions for attempted murder, section 18 wounding with intent and section 20 wounding, when all those charges had been laid in the alternative….” 39. He went on to state: “[12]….. Where there are two charges in the alternative on the indictment arising from the same facts, and with one more serious than the other, the judge should not take a verdict on the less serious count until finality has been reached on the more serious charge. Such finality may take the form of a not guilty verdict, or a decision to discharge the jury on that count because there is no realistic prospect of agreement on a verdict. If this course is not followed, then there is a serious risk of the very situation arising which arose here, with charges in the alternative leading to a multiplicity of convictions. That, as this court pointed out in the case of R v Harris [1969] 1 WLR 745 cannot be right. It is not right.” 40. In R v Harris [1969] 1 WLR 745 the defendant had been charged with both indecent assault and buggery against a 14 year old boy, arising from the same facts. In giving the judgment of the Court in quashing the conviction on the lesser charge, Edmund Davies LJ stated: “It does not seem to this court right or desirable that one and the same incident should be made the subject-matter of distinct charges, so that hereafter it may appear to those not familiar with the circumstances that two entirely separate offences were committed. Were this permitted generally, a single offence could frequently give rise to a multiplicity of charges and great unfairness could ensue.” 41. In the extant case, the two counts are not ones of descending gravity, but rather arise because the case had been opened and prosecuted as alternative counts. 42. However, by the time the jury came to be directed, and the route to verdict document provided, the alternative nature of the two counts appears to have been either forgotten or swept up in events. Although the judge distributed his proposed draft directions of law and route to verdict by email in good time, counsel agreed the contents of both despite the fact that both prosecution and defence had proceeded on the basis that the counts were alternatives. Counsel ought to have submitted that if the jury convicted the appellant on count 1, count 2 would not arise. We regret that the trial judge did not receive the assistance that he was entitled to expect from counsel in this regard. 43. We do not wish this judgment to be interpreted as stating any proposition that a drug dealer, caught with a substantial amount of cash, cannot be charged in respect of their alleged drug dealing and concerning their possession of ‘criminal property’. Each case depends upon its own facts. On the specific facts of this case , there could have been two charges brought against this appellant, not least as there were two packages of money found in his car in different locations and packaging. However, there was no differentiation between those two sums of money in the way that the case was advanced by the prosecution at trial, and despite Mr Hope’s efforts to explain to us (notwithstanding the way that the case was opened at the trial) how the jury’s verdicts on both counts 1 and 2 could potentially stand together, this is not an exercise in which he engaged before the jury. In these circumstances, we conclude that once the jury had returned their verdict on count 1, a verdict should not have been taken on count 2, but neither counsel intervened. The verdict was ‘irregular’. However, and for the avoidance of doubt, this irregularity does not render the conviction on the amended count 1 unsafe. 44. Consequently, we are persuaded that there is merit in the application for permission to appeal the conviction following the guilty verdict returned on count 2. We grant an extension of time in which to make the application in the circumstances we refer to below, and allow the appeal and quash the verdict on count 2. 45. The failure to lodge the notice of appeal within time is not the fault of the appellant, it is the fault of the appellant’s legal representatives. Mr Cross mistakenly thought that he had sent an email with the relevant documents to his solicitors, but he had not done so. The appellant’s solicitors were waiting for the advice on appeal so that Form NG1 could be lodged, and were therefore waiting for the documents; they did not realise that Mr Cross had finished, but not sent, them. This situation would have been avoided had Mr Cross sought an acknowledgement when he sent the documents; in future, that would be good practice when documents have to be filed by particular deadlines. A failure to receive any acknowledgement would highlight to counsel that the documents required by solicitors had not been received.

```yaml citation: '[2023] EWCA Crim 368' date: '2023-04-05' judges: - LADY JUSTICE MACUR - MR JUSTICE BUTCHER ```

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

Case Nos: 200403277, 200406902,200405573,200302848 Neutral Citation Number: [2005] EWCA Crim 1980 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/07/2005 Before: LORD JUSTICE GAGE Mr JUSTICE GROSS and Mr JUSTICE McFARLANE - - - - - - - - - - - - - - - - - - - - - Between: R v Lorraine Harris Raymond Charles Rock Alan Barry Joseph Cherry Michael Ian Faulder - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Richard Horwell and Miss Zoe Johnson for the Crown Mr Michael Mansfield QC and Mr Peter Wilcock for Lorraine Harris and Alan Barry Joseph Cherry Mr Michael Mansfield QC and Mr James Gregory for Raymond Charles Rock Mr Michael Mansfield QC and Mr Robert Woodcock for Michael Ian Faulder Hearing dates: 16 June 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Gage : 1. In these four appeals, which have been heard together, four carers, as they have been described, appeal against convictions for manslaughter, Lorraine Harris; murder, Raymond Charles Rock; manslaughter, Alan Barry Joseph Cherry; and s.20 inflicting grievous bodily harm, Michael Ian Faulder. The victims were Patrick McGuire, aged 4 months, in the case of Harris; Heidi Smith, aged 13 months, in the case of Rock; Sarah Eburne-Day, aged 21 months, in the case of Cherry; and N, aged 7 weeks, in the case of Faulder. Throughout this judgment we shall refer to the victims by their christian names and to the appellants by their surnames. Patrick was the son of Harris; Heidi was the daughter of Rock’s partner; Sarah was the daughter of Cherry’s partner; and N was Faulder’s son. At the time immediately before each of the victims became seriously ill each was in the sole care respectively of Harris, Rock, Cherry and Faulder. 2. All of the appellants were convicted following trials. On 7 September 2000 at Nottingham Crown Court Harris was convicted of manslaughter and sentenced to 3 years imprisonment. On 21 September 1999 at Chelmsford Crown Court Rock was convicted of murder and sentenced to imprisonment for life. On 9 October 1995 at Birmingham Crown Court Cherry was convicted of manslaughter and sentenced to 2 years imprisonment. On 28 April 1999 at Teesside Crown Court Faulder was convicted of s.20 inflicting grievous bodily harm and sentenced to 30 months imprisonment. 3. The common thread running through each of these four appeals is a submission that since these convictions medical research has developed to the extent that there is now “fresh evidence” which throws doubt on the safety of each conviction. 4. Following the judgment of this Court in R v Cannings [2004] 2Cr.App.R.7 the Law Officers set up an Interdepartmental Group to review convictions of defendants in alleged “battered babies” cases. As a result of that review letters were sent to Harris and Cherry advising that each might feel it appropriate for the safety of her or his conviction to be considered further by the Court of Appeal. Each lodged notices of appeal and sought extensions of time in which to apply for leave. Each has been granted an extension of time and leave to appeal. Rock had already lodged a notice of appeal. He appeals with the leave of the Court. In the case of Faulder his appeal comes to this Court by way of a reference from the Criminal Cases Review Commission. Mr Michael Mansfield QC is leading counsel for all four appellants. Mr Richard Horwell leads for the Crown in each appeal. 5. These appeals have involved the court receiving (by agreement of the parties) evidence from ten medical expert witnesses called on behalf of the appellants and eleven called on behalf the Crown. We also received the written evidence of four further witnesses. In general terms the issues between the two sets of medical expert witnesses are as follows. First, the evidence called on behalf of the appellants relied on recent research which it is said demonstrated that long held medical opinion of the conventional signs giving rise to inferences of unlawful assaults on infants and very young children is unreliable. The basis of this challenge was a hypothesis based on recent research. However there were also other associated medical issues. The Crown’s medical witnesses do not accept that the hypothesis is correct or that it is supported by the new research. 6. Secondly the Crown do not accept that the fresh evidence in relation to other specific issues in any way renders the convictions of these appellants unsafe. The trials Harris 7. Harris faced a single count of manslaughter. In summary the evidence was as follows. Patrick was born on 13 August 1998. He was the son of Lorraine Harris and Sean Maguire all of whom lived in the same house with two daughters of Harris from a previous relationship. The evidence showed that, although the pregnancy was not planned, both Harris and Maguire were happy about the impending birth. After his birth, Patrick gave every indication of being a thriving and much loved baby. Maguire described Harris as being as happy as he had ever known her. Harris received support from Maguire’s mother and her own mother. There were no financial difficulties and health professionals said that the family gave the impression of perfection. 8. On 4 December 1999 Harris took Patrick for his third immunisation. The rest of the day passed without any significant event. Maguire was on night shift and Harris remained in the house with Patrick. Shortly before 1.00 a.m. on 5 December 1999 Harris noticed that Patrick was having difficulty breathing and called Dr Barber, the general practitioner. Whether or not this was in evidence at the trial, it is agreed that in the telephone call Harris said to Dr Barber: “I woke up to give him his feed and he wasn’t breathing. Not until I picked him up and sort of shook him. He seems as right as rain now.” 9. Dr Barber stated that on arrival Harris appeared calm and controlled. Dr Barber had formed the opinion that Harris was an experienced and sensible mother. He examined Patrick. Patrick’s eyes were normal and he had all the appropriate reflexes. He recorded Patrick’s temperature as 38.2, mildly raised. There were no signs of abuse or bruising. Patrick’s chest was clear and although he was a little “snuffly” Dr Barber concluded that there was nothing wrong with him. He left the house at 1.30a.m. 10. At 2.34am Harris made a 999 call to the emergency services and reported that Patrick would not wake up. An ambulance arrived seven minutes later. The crew endeavoured to resuscitate Patrick. They recorded that Patrick did not have a pulse and was making no respiratory effort although he was still warm. Patrick and Harris were taken to Derby Children’s Hospital arriving at 3.15am Patrick was put on a life support machine. The evidence was that Harris was “plainly in considerable stress and crying.” Patrick was noted as having fixed and dilated pupils and retinal haemorrhages. 11. Patrick was seen by Dr Dodd a consultant paediatrician, who examined him at approximately 4.30am He described Patrick as having widely dilated pupils enabling him to make a clear examination of the retina. He found gross preretinal haemorrhages which were so extensive that he could not recall seeing any that were worse. There were no external injuries. He was so concerned about Patrick’s condition that he arranged for him to be transferred to the specialist unit at Nottingham. In Nottingham a blood sample test was taken. The test showed that there was marked hypofibronogenemia. Despite the best efforts of the medical team caring for him Patrick died on 6 December 1999. 12. In late March 2000 Harris was arrested and interviewed about these events. In the summing-up the judge described Harris’ answers at interview as entirely consistent with the evidence which she gave at her trial. 13. The prosecution called a number of expert medical witnesses both as to fact and also opinion evidence. Those witnesses were Dr Bouch, a Pathologist, who had conducted a post mortem on Patrick. He concluded that Patrick had died as a result of a shake which caused bleeding into the skull around the brain. He described what he meant by a “shake” as much more than rough handling. Professor Green, a paediatric pathologist, with a special interest in ophthalmic pathology gave evidence that there was extensive bleeding in the vitreous of the left eye and extensive haemorrhaging of the retina. The bleeding in the right eye was less extensive. His conclusion was that his findings were those typically seen when shaking or, shaking and an impact had occurred. A consultant haematologist, Dr Giangrande, who specialised in blood diseases, gave evidence to the effect that the low level of fibrinogen in the Patrick’s blood system, in his opinion, was the result of an injury sustained by Patrick and not a pre-existing condition. However he was unable to rule out the possibility that that condition was present before the brain injury was caused. Finally, the prosecution called Mr Punt, a consultant paediatric brain surgeon. His evidence was that the amount of blood over the surface of the brain shown on the scan and the description of the amount of blood over the surface of the brain at post mortem was not sufficient to cause Patrick’s death. In his opinion it was injury to the brain itself which caused death; and that the brain injury was caused either by shaking or an impact or a combination of both. In his opinion whatever caused the injury to the brain was likely to have been in consequence of an incident after Dr Barber had left the home at 1.30a.m. In his view it was extremely improbable that the injuries were the result of a bleeding disorder. 14. Harris, a woman of good character, gave evidence in her own defence. Her evidence was that on the evening of 4 December 1998 Patrick became “chesty and grunty”. Because he had difficulty in breathing she called out Dr Barber. After his visit she put Patrick in his cot. He seemed to have settled a bit. When she awoke approximately an hour later she checked him. His arms were on the top of the covers; he was a bit pale and cold. When she picked him up he was floppy. She said that she panicked and put him down in the cot. She telephoned her mother and then the ambulance. She vaguely remembered bouncing him on her knee whilst she was on the telephone. At interview she had said that she had Patrick on her knee when she telephoned the ambulance and that she remembered her knees “were going ten to the dozen.” In evidence she said that she found it difficult to remember the sequence of events because she had tried to put it out of her mind. She accepted that she had told the doctor on the telephone that Patrick had stopped breathing in order to make him hurry. She said she was unable to offer any explanation for his injuries. 15. On her behalf three expert medical witnesses gave evidence. They were Dr Batman, a consultant histopathologist; Dr Jones, a consultant paediatrician; and Dr Macdonald, a consultant neuropathologist. Dr Batman thought that there were three possible causes of Patrick’s death. They were (a) natural causes such as bleeding from a blood disorder; (b) shaking with or without impact; and (c) re-bleeding of an old blood clot. He regarded the latter as the least likely of three. In evidence, Dr Jones stated that his conclusion was that the findings were entirely consistent with a bleeding disorder. However he conceded that one would have expected more blood than was present if there was a blood disorder. He accepted that the findings were consistent with Patrick having been shaken and he agreed that he had never seen a child with fibrinogen deficiency which had died. Dr Macdonald concluded that Patrick’s injuries were not the result of a severe non-accidental injury although he conceded that the extent of the haemorrhages inside the vitreous jelly of his eye equated to a quite severe shaking. But the fact that there was no bleeding on the optic nerve of the right eye was a contra-indication. 16. In a summing-up, about which there is and can be no criticism, the judge described the issue for the jury as follows: “The prosecution assert that she killed Patrick by deliberately shaking him violently or by shaking him violently and then throwing him down in his cot so as to cause bleeding inside his skull, thus leading to his collapse and death. The defendant denies that she did any such thing. She cannot explain her son’s collapse and death, but maintains that she did nothing which might have brought about that death. If you are not sure that the defendant killed Patrick, then you find her not guilty” After deliberating for just short of three hours the jury returned a verdict of guilty of manslaughter. Rock 17. Rock faced an indictment charging him with the murder of Heidi Smith. Heidi Jane Smith was born on 10 May 1997 and was the daughter of Lisa Hudson and James Smith. Lisa Hudson’s relationship with James Smith did not last long and by March 1998 she was living at the home of Rock. Rock was aged 26 and had previously been married with two children of his own. His children lived with their mother. 18. The evidence was that Heidi was a happy, healthy baby and hardly ever cried. In general Rock was very good with and doted on Heidi. There was evidence that he was concerned about her well-being and showed no hostility towards her. However, Lisa Hudson said in evidence that Rock had a temper. She spoke of an incident about two weeks before Heidi’s death when Heidi was grizzly and would not settle. She said that on that occasion Rock held Heidi to his face and said “shut up” in what she thought was a nasty fashion. On another occasion Rock complained that “Its Heidi this and Heidi that”. 19. On 2 June 1998, Lisa’s mother, Thelma Hudson, was looking after Heidi. At 6.30pm Thelma took Heidi back to Rock’s home after he had returned from work. Lisa Hudson was still at work. Thelma Hudson placed Heidi in her cot at 6.35pm. She said that when she left Heidi was asleep and breathing normally. At 7.08pm Thelma Hudson telephoned Rock and spoke to him. From approximately 7.00pm Lisa Hudson could not get a response from the telephone at Rock’s home. A next door neighbour, Gail Banham, said that some time between 7.05pm and 7.10pm, from her kitchen, she could hear screaming coming from one of the homes at the back of her house. She said that the screaming sounded like a very sustained temper tantrum of a child aged between nine months to eighteen months. She also heard someone shouting at the child. It was a male and youngish. He was swearing and told the child to “fucking shut up”. The screaming did not stop. She went to the front of her house where she could hear nothing but then returned to her back kitchen. The screaming continued and she heard the same voice telling the child to shut up. The screaming continued but as she finished dishing up a meal it stopped and went completely silent. Her evidence was that this occurred at 7.20pm. In the unused material there were statements from police officers concerning an experiment conducted by them to see if shouting in one house could be heard in the other. The result of this experiment was inconclusive. 20. However, Rock, in evidence, agreed that he had told Heidi to shut up but it was in the context of a longer sentence in which he said “you heard your mum, you’ve got to shut up”. He said that after Thelma Hudson had telephoned him he checked that Heidi was asleep and went downstairs to watch a video. During this time he heard loud crying. He went upstairs and found Heidi sitting up in her cot, red-faced and very upset. He said that he picked her up by her armpits and placed her in the crook of his right arm with his left hand under her bottom. He then rocked her from side to side at the same time trying to wind up the mobile on the top of the wardrobe. Heidi slipped through his arms onto the floor. He said that he saw Heidi hit the floor; she did not bang her head but did not stop crying. He immediately picked her up. She was completely still and not breathing. He patted her on the back saying “come on Heidi sweetheart”. He then held her in front of him but did not violently shake her. He shook her lightly by placing her on the floor where she was having the occasional spasm. He tried to give her mouth to mouth resuscitation but on the fourth occasion she began to vomit. He took her to the bathroom, held her face down over the sink and banged her back to allow the sick to come out. His evidence was that she began vomiting again. Seeing this he ran downstairs with Heidi and dialled 999. His telephone call was timed at 7.27pm. The paramedics arrived at 7.37pm. They found Heidi lying on the floor in a dimly lit room. Rock told them that he had dropped Heidi onto her bottom whilst he had been trying to wind up a clockwork toy. He told them that Heidi had not hit her head on the floor as he had been able to catch and support her head before it hit the floor. He then picked her up and she had gone limp and stopped breathing. He told them that he had tried mouth-to-mouth resuscitation and Heidi had vomited. One of the paramedics saw signs of vomit around Heidi’s mouth. He said that on the way to the hospital in the ambulance Rock had asked questions such as “has she got brain damage?” “Has she got lung damage?” On arrival at the hospital Heidi was taken straight to the resuscitation room. She was subsequently transferred to the Intensive Treatment Unit as she was having spasmodic fits; both her eyes were rolling to the left; she was pale but breathing and unconscious. 21. At the hospital, Rock gave an account of events to both Lisa and Thelma Hudson and all of the medical staff. His explanation of the incident was much the same as that which he gave in evidence. He maintained that Heidi did not bang her head when she fell and he told no one that he had shaken her. To Lisa Hudson he said “I am so sorry, I dropped her on her bum”. And later in the hospital chapel, “I killed her, I killed her. Please God let her live, save her.” 22. The prosecution called a number of medical witnesses including expert witnesses. A consultant ophthalmic surgeon said that he examined Heidi’s eyes when she was comatose and on a ventilator. He found massive retinal haemorrhaging at all layers on both retinas. There was also tenting/pulling forward of the major retinal vessels or folds. He concluded that in the absence of any specific medical condition the haemorrhages and tenting were the result of severe acceleration and deceleration forces. He said that he had never seen such severe damage to a person’s retina. Dr Jaspan, a consultant neuroradiologist (one of the expert witnesses called by the Crown in these appeals) examined a CT scan taken at 10.25pm on 2 June 1997. He found a thin layer of blood lying along the falx and within the brain at the back of the head. In his opinion these findings were consistent with trauma. In his view the disrupted delicate blood vessels in the brain had been damaged and the damage was profound and irreversible. He concluded that the trauma was so severe as to render Heidi immediately unconscious and that the injuries were highly characteristic of violent shaking. In his opinion dropping a child on its bottom was inconsistent with Heidi’s injuries. 23. Mr Jonathan Punt, a consultant paediatric neurosurgeon, also examined the first CT scan of 2 June and agreed with Dr Jaspan’s conclusions. He concluded that the degree of violence required to cause the injuries to Heidi was “extreme; grossly in excess of any vigorous handling, even rough handling.” 24. Dr Cary, a pathologist, conducted the post mortem on the same day as the life support machine had been discontinued. He found a number of superficial bruises over Heidi’s body. In addition there was bruising within the scalp over the back of head and bleeding around the optic nerve. The brain was swollen and there was bleeding on the surface of the brain. There was no skull fracture. He said that in his opinion the head injuries in conjunction with the retinal detachment in both eyes were consistent with shaken baby syndrome (SBS). In his view the cause was shaking or shaking plus an impact which caused injuries to the brain. He said that the force required was “shaking as hard as you can”. Further, he concluded that the changes which had occurred to Heidi’s eyes meant that there must have been several shakes back and forth with acceleration and deceleration. 25. A professor of forensic pathology, Professor Michael Green, gave evidence that there were haemorrhages around both optic nerve roots and that the retina had started to pull away. There was a detachment between the sclera and the retina and extensive bleeding around the optic nerve. In his view the injuries were typical of a serious shaking plus impact. 26. Finally, Dr Christine Smith, a consultant neuropathologist, called by the prosecution, described the brain as swollen and said that she had found on the inner surface of the dura remnants of blood. There was also widespread damage to nerve cells. She concluded that the injuries to the brain were consistent with trauma which had caused the brain to move in relation to the skull. She said that the most likely cause of the haemorrhaging to the eyes was shaking. She said there was no evidence of natural diseases present which could have lead to Heidi’s death. 27. Rock gave evidence in his own defence. We have already referred to his version as to how he came to drop Heidi on the floor. He denied shaking Heidi but accepted that as a father he knew the consequences of shaking a baby could be fatal. He accepted in cross-examination that he had not told the doctors or the police that Heidi had become floppy after he had shaken her. He said that feelings of guilt were the reason for him not telling the police. He confessed that at the hospital it was obvious to him that Heidi was suffering from brain damage but he did not tell the doctors about shaking Heidi. 28. No expert witnesses were called on Rock’s behalf. 29. In his summing-up the judge told the jury that Rock admitted shaking Heidi. He said: “It is for you to say, but you may think that, in the end, the defendant was bound to admit that he had shaken Heidi, and shaken her before she became floppy, because the evidence that she was shaken is so strong, so overwhelming. How else were those injuries caused to Heidi, if it were not by the defendant shaking her, and shaking her with considerably excessive force? That is a question you are entitled to ask yourself, obviously. There is no question of accident here. It is not suggested that what the defendant did was done otherwise than deliberately.” 30. The judge went on to direct the jury that the difference between murder and manslaughter was one of intention. Further, he told them that there was a third possible verdict and that was not guilty of anything. He continued: “So, I must leave it open for you to say whether the defendant is not guilty of anything. I am allowed, however, to suggest to you that not guilty of anything is not a realistic verdict in this case. As I say, you decide this case. If you think that the defendant’s account that he did not shake Heidi violently so as to cause those injuries to Heidi from which she died, that his account is true or may be true, then he is entitled to be acquitted both of murder and manslaughter.” After deliberating for a period of forty minutes the jury returned a verdict of guilty of murder. Cherry 31. Cherry faced an indictment charging him with the manslaughter of his partner’s daughter Sarah. Sarah’s mother, Mrs Shirley Eburne-Day, and her children including Sarah and Cherry, at the time of the incident giving rise to the charge, were all living together at Mrs Eburne-Day’s home. Sarah was the youngest of Mrs Eburne-Day’s three children. Mrs Eburne-Day and Cherry had lived together for some months. The evidence suggested that he was a good step-father to the children. On Thursday, 3 February 1994, in the morning, Sarah was left in the sole care of Cherry. Earlier in the week she had developed a thumb infection for which a doctor had prescribed antibiotics. After taking some medicine on 2 February Sarah was sick so different antibiotics were prescribed. 32. On the morning of 3 February 1994, at about 8.30am, Mrs Eburne-Day left Sarah at home with Cherry whilst she drove her two older children and a neighbour’s daughter to school. The plan was that Cherry would take Sarah to Mrs Eburne-Day’s father’s home where, in the course of the morning, Cherry and Mrs Eburne-Day would meet before both went to Birmingham for Cherry to attend a job interview. 33. That morning Sarah was a little better than on the previous day and appeared to be behaving perfectly ordinarily. Mrs Eburne-Day said that she had no concerns about leaving her. She said that she and Cherry had discussed Sarah’s health and decided that she was fit enough to be left with her grandparents. In evidence, Cherry said that he disagreed. He said that Sarah was not very well on Thursday morning. She was not in a bright condition and wanted to sleep and be cuddled by her mother. He denied that he had any conversation with Mrs Eburne-Day about Sarah’s health that morning. 34. Lianne Osbourne, a next door neighbour, called that morning for a lift to school. Before leaving with Mrs Eburne-Day she said that she saw Cherry briefly. He was wearing dark trousers, a white striped shirt and a red brown paisley patterned tie. Apart from his jacket he appeared almost ready to go out. In evidence Cherry denied that when seen by Lianne Osbourne he had been fully dressed for work. 35. There was evidence that Cherry was next seen in the street in a distressed state seeking assistance from various neighbours. Sarah’s grandfather, Mr Eburne-Day, received a telephone call from Cherry at precisely 8.55am asking him to call an ambulance, which he did. Mrs Redding, a neighbour and trained nurse, saw Sarah just before the ambulance arrived. She said that Sarah appeared to be dead or on the verge of death. She applied resuscitation techniques until the ambulance arrived at approximately 9.20am. Sarah was taken first to George Eliot Hospital in Nuneaton but was later transferred to the Intensive Therapy Unit at Birmingham Children’s Hospital. In spite of all medical efforts Sarah died about 48 hours later. 36. On 4 February 1994 Cherry was arrested on suspicion of causing grievous bodily harm with intent. This was before Sarah had been pronounced dead. He was interviewed by police and explained that he had left Sarah standing on a small yellow chair whilst he went upstairs briefly to put on a shirt and tie. Apparently, it had been Sarah’s habit to stand on the yellow chair in order to look out of the window at the front of the house. He explained that when he returned he found Sarah lying on the floor motionless and making gurgling noises. He said that he picked her up and described her body feeling like a rag doll. She did not respond and therefore he telephoned her grandfather to ask him to telephone for an ambulance. He explained that she must have become suddenly ill and fallen from the chair. He denied shaking her or throwing her around but said that she had fallen out of her sister’s bed at the weekend. On 6 February 1994 he was charged with the murder of Sarah and after caution replied “I’m not guilty. I’ve committed no offence”. In the event, the Crown proceeded with a charge of manslaughter rather than murder. 37. At trial, giving evidence in his own defence, Cherry repeated what he had said at interview. He said that after going upstairs to finish off dressing for “only a few minutes” he returned to find Sarah “lying on the floor, obviously badly injured.” He said that when he picked Sarah up and tried to pat her back he removed “some yellow stuff from her mouth”. 38. At trial the prosecution called a number of medical witnesses. Doctor (now Professor) Whitwell conducted the post mortem upon Sarah. Her finding was that death had been caused by “cerebral swelling and subdural haematoma”. In addition, she found two bruises at the back of the head (3.5cms and 1.5cms in diameter and on opposite sides) and five small areas of bruising higher up. In her opinion the five smaller bruises were consistent with pressure from fingers. In cross-examination she did not accept that the injuries could have been caused by falling from the yellow chair. She said that the injuries were more consistent with Sarah’s head being forcibly put against something. In her opinion it was highly unlikely that Sarah could have injured herself by banging her head against the floor although that was not impossible. She said it was unlikely the injuries could have been caused by a single fall because there were two separate areas of impact and two separate bruises, although she could not exclude this absolutely. 39. A radiologist, Dr Chapman, stated that it was very rare for a child to have this kind of bleeding from a domestic fall. In his opinion a fall from the yellow chair had not caused Sarah’s injuries. Dr Akuba, a neurological registrar, in a witness statement, said that she had inserted a tube into Sarah’s skull as part of her treatment and recorded that “Cerebral spinal fluid emerged under moderate pressure. It was yellow and looked like old blood. Query, query”. 40. Dr Rylance, a consultant paediatrician, having seen Sarah at Birmingham Children’s Hospital, took the view that her injuries were non-accidental. He was asked about a previous statement which he had made and in which he stated that the injury giving rise to blood inside the skull occurred almost certainly more than 12 hours previously and probably more than 36 hours previously. He said in evidence that he had since changed his opinion and in fact it could have been 10½ or 11 hours previously. He said that Sarah’s vomiting the day before was more likely to have been caused by the medicine than a previous brain injury because when she stopped taking the medicine she stopped vomiting. 41. Finally, the prosecution called Mr Flint, a surgeon, who described the five small bruises on Sarah’s head which were, in his opinion, indicative of her having been held. The two bruises on the back of her head suggested at least two blows. In his opinion it was very unlikely that the bruises were caused by her slipping backwards from the chair and hitting her head on the floor. In his opinion a healthy child could not sustain such injuries revealed by the post mortem by falling the short distance from the chair onto the carpeted floor. 42. In addition to his own evidence, there was called on Cherry’s behalf a neurologist Dr West and a consultant pathologist, Dr Ackland. Dr West had viewed films taken by Dr Whitwell. He said that what he saw was consistent with a child having aspirated liquid which was a frequent complication of head injuries. Dr Ackland did not rule out the possibility of abuse causing the injuries but was of the opinion that an accidental fall from the chair was a significant possibility. In his opinion there was a small possibility that Sarah some earlier injury that was aggravated by the fall but he did not regard that as a high possibility. He said that the five marks on Sarah’s head may have been caused by a firm grip during the medical treatment. 43. In his summing-up the judge described the issue for the jury to decide in the following terms: “The cause of her death was a swelling of the brain caused by an impact of one sort or another. It is the prosecution case that the impact was in consequence of an unlawful blow delivered by this defendant. Your task will be to decide whether that case is proved or not.” After deliberating for just over two and a half hours the jury returned a unanimous verdict of guilty of manslaughter. Faulder 44. At trial Faulder faced an indictment containing 2 counts. They were count 1, a s.18 offence of causing grievous bodily harm with intent; and count 2 an alternative s.20 offence. He was convicted of the latter offence. The evidence showed that at 10.30pm on Friday 13 February 1998, N then aged seven weeks (but born two weeks premature) was admitted to the Dryburn Hospital with severe injuries. On the following day N was transferred to a specialist unit at the Newcastle General Hospital where his condition deteriorated over the following week. Although there was concern that he might not survive he recovered and was transferred back to Dryburn Hospital on 5 March 1998. On 16 March 1998 he was discharged from hospital. 45. The event which led to N’s admission to hospital occurred at the home occupied by Faulder and his partner. It was common ground that at the time Faulder was the sole carer of N. His case was that N’s injuries were caused entirely accidentally. He said that he had dropped N and that in falling N struck and injured his head. The case for the prosecution was that Faulder had caused the injuries by a deliberate act or actions. 46. The prosecution case was based on the assertion that the extensive brain injuries sustained by N and revealed on x-ray and brain scans could not have been occasioned in the manner described by Faulder. The prosecution relied on the evidence of three expert witnesses for the proposition that Faulder must have shaken N and thrown him onto the floor. 47. Dr Camille de San Lazaro at the time a consultant paediatrician at the Royal Victoria Infirmary gave evidence that the injuries sustained by N were consistent with shaking and were not consistent with Faulder’s account. She said that his version of the events could not account for the subdural haemorrhages. She further stated that in relation to Faulder’s account of N making a sudden arching movement which caused him to drop N that at that age the child would have had insufficient muscle tone to achieve the movement described by Faulder. Further Faulder’s description of N falling onto a pushchair and then a highchair before hitting the floor would have had the effect of breaking N’s fall rather than exacerbating it. 48. Dr Alexander, a consultant paediatrician at the Newcastle General Hospital, gave evidence that on examination of N on 14 February 1998 he found a triangular bruise on the top of N’s head and two bruises on the forehead over the right eye. He said that the child’s fontanelle was unusually tense, symptomatic of swelling of the brain due to brain damage. In his opinion the CT scan showed bilateral subdural haemorrhages. He conceded that the superficial marks on N’s face and head were consistent with Faulder’s account but asserted that this account did not provide an explanation for the bruise on the right side of the forehead or the severity of the brain injuries. In his opinion the brain injuries were such as were commonly caused by repeated shaking with considerable force, and the clinical findings were more consistent with non-accidental injury than with an accident. 49. Mr Gholkar, a consultant neuroradiologist, having examined the brain scans concluded that the evident changes in the appearance of the brain were due to severe brain damage unlikely to have been occasioned in the manner described by Faulder and were characteristic of shaking injuries. 50. There was no evidence of retinal haemorrhages and there was some dispute as to the extent to which retinal haemorrhages were to be found in babies with “shaking” injuries. Dr de San Lazaro stated that her study showed that 53% of children believed to have been shaken, had retinal haemorrhages. 51. Faulder gave evidence in his own defence. He said that he did not deliberately cause the injuries. He explained how he had dropped N by accident when attempting to place him into his pushchair. He said that he had been holding him along his arm with his hand supporting the baby’s head. The baby moved suddenly and fell on to the edge of the pushchair. This caused him to bounce off the pushchair and on to the concrete floor bouncing his head on the adjacent highchair as he fell. Faulder conceded that the baby had been crying for twenty minutes but said that he had not lost his temper. He maintained that he did not shake nor forcibly place N into his pushchair. His answers at interview were consistent with his evidence at trial. 52. Dr Rushton a paediatric pathologist gave evidence for Faulder. He put forward the possibility that N’s contact with the pushchair and highchair might have lead to the production of rotary forces that accelerated the head and increased the force of contact with the floor. He noted that the three external injuries (bruises) found on the baby’s head were consistent with Faulder’s explanation but were difficult to explain if the injuries were due to shaking or a single impact injury. He also referred to the lack of retinal haemorrhages saying that in his opinion the cause of retinal haemorrhages was not fully understood. In his view subdural haemorrhages could be caused by shaking or impact but they might also be consistent with injury caused in the manner described by Faulder. 53. The judge directed the jury in his summing-up that the first question for it to decide was: “Was this or may it have been accident or design? If you come to the conclusion that this is or may have been a tragic accident it follows that the defendant cannot be guilty of count 1 or count 2 and must be acquitted by you. That is the simple issue for you to decide.” 54. After deliberating for just less than two hours the jury returned a verdict of guilty of count 2. 55. On conviction Faulder applied for leave to appeal against conviction and sentence and for an extension of time. His applications were refused by the single judge. The triad and the unified hypothesis 56. At the heart of these appeals, as they were advanced in the notices of appeal and the appellants’ skeleton arguments, was a challenge to the accepted hypothesis concerning “shaken baby syndrome” (SBS); or, as we believe it should be more properly called, non-accidental head injury (NAHI). The accepted hypothesis depends on findings of a triad of intracranial injuries consisting of encephalopathy (defined as disease of the brain affecting the brain’s function); subdural haemorrhages (SDH); and retinal haemorrhages (RH). For many years the coincidence of these injuries in infants (babies aged between 1 month and 2 years) has been considered to be the hallmark of NAHI. Not all three of the triad of injuries are necessary for NAHI to be diagnosed, but most doctors who gave evidence to us in support of the triad stated that no diagnosis of pure SBS (as contrasted with impact injuries or impact and shaking) could be made without both encephalopathy and subdural haemmorhages. Professor Carol Jenny, a paediatrician and consultant neuro-trauma specialist called by the Crown, went further and said that she would be very cautious about diagnosing SBS in the absence of retinal haemmorhages. In addition, the Crown points to two further factors of circumstantial evidence, namely that the injuries are invariably inflicted by a sole carer in the absence of any witness; and that they are followed by an inadequate history, incompatible with the severity of the injuries. 57. Between 2000 and 2004 a team of distinguished doctors led by Dr Jennian Geddes, a neuropathologist with a speciality in work with children, produced three papers setting out the results of their research into the triad. In the third paper “Geddes III”, the team put forward a new hypothesis, “the unified hypothesis”, which challenged the supposed infallibility of the triad. It was called the unified hypothesis because it relied on the proposal that there was one unified cause of the three intracranial injuries constituting the triad; that cause was not necessarily trauma. It is important to note that the new hypothesis did not seek to show that the triad was inconsistent with NAHI. It did, however, seek to show that it was not diagnostic. 58. When Geddes III was published it was, and still is, very controversial. It is not overstating the position to say that this paper generated a fierce debate in the medical profession, both nationally and internationally. In the course of the hearing of these appeals we have heard evidence from a number of very distinguished medical experts with a range of different specialities most of whom had in witness statements expressed views on one side or other of the debate. However, early on in the hearing it became apparent that substantial parts of the basis of the unified hypothesis could no longer stand. Dr Geddes, at the beginning of her cross-examination, accepted that the unified hypothesis was never advanced with a view to being proved in court. She said that it was meant to stimulate debate. Further, she accepted that the hypothesis might not be quite correct; or as she put it: “I think we might not have the theory quite right. I think possibly the emphasis on hypoxia - no, I think possibly we are looking more at raised pressure being the critical event. ” And later in her evidence: “Q. Dr Geddes, cases up and down the country are taking place where Geddes III is cited by the defence time and time again as the reason why the established theory is wrong. A. That I am very sorry about. It is not fact; it is hypothesis but, as I have already said, so is the traditional explanation. … I would be very unhappy to think that cases were being thrown out on the basis that my theory was fact. We asked the editor if we could have “Hypothesis Paper” put at the top and he did not, but we do use the word “hypothesis” throughout.” 59. Despite these frank admissions the triad and Geddes III have been a focus of much of the medical issues in these appeals. We propose to set out the salient features of each in a little more detail. We do so not only as a backdrop to these appeals but in an effort to inform those involved in future trials as to the current accepted state of medical science, as we understand it from the evidence before us, on some of the very difficult issues which are raised in criminal and civil trials involving allegations of NAHI. The anatomy 60. In order to explain the two hypotheses it is necessary to set out some of the anatomy involved in terms which can be understood by laymen and which from a medical viewpoint may seem somewhat simplistic. At the outset, in order to assist the reader, we attach as annexes to this judgment a glossary of medical terms (appendix A), and diagrams of the head (appendix B). 61. The brain is encased in three membranes. The one immediately surrounding the brain is the pia mater. The next one is the arachnoid. Between the pia and the arachnoid is an area known as the subarachnoid space. The third membrane, which surrounds the brain and continues down the body surrounding and protecting the spinal cord, is the dura. Between the dura and the arachnoid is the subdural space. Between the dura and the arachnoid there are veins running between the two membranes which are called bridging veins. 62. The brain is divided into two halves or cerebral hemispheres. The two hemispheres are separated by the falx which itself is part of the dura. Below the cerebral hemispheres the brain is joined to the spinal cord at the craniocervical junction, which, as its name implies, is situated in the neck. The spinal cord extends down from the brain, through the foramen magnum and into the spine. The triad 63. As already stated when the three elements of the triad coincide for some years conventional medical opinion has been that this is diagnostic of NAHI. Typically the brain is found to be encephalopathic; bleeding is found in the subdural space between the dura and the arachnoid subdural haemmorhages; and there are retinal haemorrhages. There may also be other pathological signs such as subarachnoid bleeding and injuries at the cranio-cervical junction. Further, there may be injuries to nerve tissue (axonal injuries) and external signs of broken bones, bruising and other obvious injuries such as extradural oedema (bruising). Determining these findings requires medical experts from a number of different disciplines interpreting often very small signs within the complex structures of an infant’s brain and surrounding tissue. 64. The mechanism for these injuries is said to be the shaking of the infant, with or without impact on a solid surface, which moves the brain within the skull damaging the brain and shearing the bridging veins between the dura and the arachnoid. The shaking may also cause retinal haemorrhages. In the sense that the explanation for the triad is said to be caused by shaking and/or impact it also is a unified hypothesis, albeit that each element is said to be caused individually by trauma. 65. The triad of injuries becomes central to a diagnosis of NAHI when there are no other signs or symptoms of trauma such as bruises or fractures. The unified hypothesis (“Geddes III”) 66. Dr Geddes and her colleagues, following research into almost fifty paediatric cases without head injury, proposed that the same triad of injuries could be caused by severe hypoxia (lack of oxygen in the tissues) which in turn led to brain swelling. The hypothesis was that brain swelling combined with raised intracranial pressure (ICP) could cause both subdural haemorrhages and retinal haemmorhages. Thus, it was argued that any incidents of apnoea (cessation of breathing) could set in motion a cascade of events which could cause the same injuries as seen in the triad. It will be appreciated that there are many events which could accidentally cause an episode of apnoea. 67. In Geddes III the unfied hypothesis was summarised as follows: “Our observations in the present series indicate that, in the immature brain, hypoxia both alone and in combination with infection is sufficient to activate the pathophysiological cascade which culminates in altered vascular permeability and extravasation of blood within and under the dura. In the presence of brain swelling and raised intracranial pressure, vascular fragility and bleeding would be exacerbated by additional hemodynamic forces such as venous hypertension, and the effects of both sustained systemic arterial hypertension and episodic surges in blood pressure. ” Thus, it was suggested that all the injuries constituting the triad could be attributed to a cause other than NAHI. We understand that this paper has been much cited in both criminal and civil trials since its publication. 68. The criticism of Geddes III is that it is not hypoxia and/or brain swelling which causes subdural haemorrhages and retinal haemorrhages but trauma. As an example of why the hypothesis is not correct Dr Jaspan, giving evidence in the appeal of Rock, demonstrated that CT scans taken of Heidi’s brain showed that there was little or no brain swelling at a time when subdural haemorrhages and retinal haemorrhages were shown to be present. As a result of critical papers published in the medical journals, as we have already stated, Dr Geddes when cross-examined frankly admitted that the unified hypothesis could no longer credibly be put forward. In cross-examination she accepted that she could no longer support the hypothesis that brain swelling was the cause of subdural haemorrhages and retinal haemmorhages. She did, however, state that she believed that raised intracranial pressure (ICP) might prove to be an independent cause of both lesions. When asked by Mr Horwell if she had published a paper on this hypothesis she said that she had not and that her research was still incomplete. It was clear from subsequent questions in cross-examination that this work was still in its early stages and that many questions remain, as yet, unresolved. 69. In our judgment, it follows that the unified hypothesis can no longer be regarded as a credible or alternative cause of the triad of injuries. This conclusion, however, is not determinative of the four appeals before us. There are many other medical issues involved in cases of alleged NAHI. Further, there remains a body of medical opinion which does not accept that the triad is an infallible tool for diagnosis. This body of opinion, whilst recognising that the triad is consistent with NAHI, cautions against its use as a certain diagnosis in the absence of other evidence. These four appeals raise different medical issues and do not necessarily fail because the unified hypothesis has not been validated. But it does mean that the triad, itself a hypothesis, has not been undermined in the way envisaged by the authors of Geddes III. 70. Mr Horwell, in his final submissions invited the Court to find that the triad was proved as a fact and not just a hypothesis. On the evidence before us we do not think it possible for us to do so. Whilst a strong pointer to NAHI on its own we do not think it possible to find that it must automatically and necessarily lead to a diagnosis of NAHI. All the circumstances, including the clinical picture, must be taken into account. In any event, on general issues of this nature, where there is a genuine difference between two reputable medical opinions, in our judgment, the Court of Criminal Appeal will not usually be the appropriate forum for these issues to be resolved. The focus of this Court will be (as ours has been) to decide the safety of the conviction bearing in mind the test in fresh evidence appeals which we set out below. That is not to say that such differences cannot be resolved at trial. At trial, when such issues arise, it will be for the jury (in a criminal trial) and the judge (in a civil trial) to resolve them as issues of fact on all the available evidence in the case (see R v Kai-Whitewind [2005] EWCA 1092). 71. Before we leave Geddes III we must mention some evidence given by the first witness we heard, Dr Waney Squier, a consultant neuropathologist, which was the subject of some further investigation by the Crown’s witnesses and further oral evidence. Dr Squier produced a slide taken from the brain of a four week old baby which she said demonstrated blood oozing from the dura into the subdural space. In her opinion this showed that intradural haemorrhages could leak into the subdural space and could be mistaken for subdural haemorrhages caused by shearing of the bridging veins. In that respect it challenged the diagnostic value placed on subdural haemmorhages by the triad. Mr Horwell asked for the slide and other slides made in respect of the same brain to be released for examination by the Crown’s experts. We heard evidence in respect of this discrete issue on the last day of evidence. 72. In summary, two paediatric neuropathologists, Dr Rorke-Adams and Dr Harding, said that the slide did not show intradural bleeding but was an example of the process of organisation of an earlier subdural haemorrhage. 73. It is unnecessary for us to go into the detail of this dispute. It is sufficient to say that having heard both sides forcefully express their views we are unable to resolve this issue and find, as Mr Horwell invited us to, that Dr Squier’s evidence on it cannot be accepted. We content ourselves with the observation that even on the interpretation of objective evidence there can be two views expressed by highly experienced and distinguished medical experts. Geddes I and II 74. Although, for the reasons already explained, the unified hypothesis can no longer stand as a credible alternative to the triad, a number of issues of general importance in respect of the triad remain. So far we have made no mention of the first two papers produced by Dr Geddes and her co-authors, which we will refer to as Geddes I and Geddes II. These papers represent conclusions reached in respect of research into a cohort of infants all of whom died from inflicted head injuries. Using a technique pioneered by Dr Geddes, the authors sought to identify axonal damage (damage to the nerve tissues) in the brains of these infants. The technique involved detecting the presence of beta-amyloid precursor protein ( β -APP) (a protein that builds up where axons have been damaged). The research showed that widespread axonal damage, interpreted as vascular rather than traumatic, was present in 13 of the 37 cases. Conversely, widespread traumatic axonal damage was found in only 2 cases and in both cases there were other very clear signs of trauma (for example bilateral skull fractures). The authors concluded that their findings strongly suggested that severe traumatic axonal damage is a rarity in infant NAHI unless there is considerable impact, and that the diffuse brain damage which was responsible for loss of consciousness in the majority of cases was caused by starvation of oxygen (hypoxic) rather than direct trauma to the brain. 75. The principle conclusion of Geddes II was that shaking an infant might cause a stretching injury at the cranio-cervical junction to nerves which control the child’s cardio-respiratory system. In all the cases analysed the stretch injury itself was survivable, what was life-threatening was the consequent hypoxic injury and brain swelling that followed as a result of the damaged cardio-respiratory nerves failing to function. The minimum degree of shaking force required to produce such a stretch injury is unknown and a death may be caused in the manner suggested by much less force than hitherto supposed. Although the results of this research, as we understand it, are not challenged by those who criticise the unified hypothesis, Mr Horwell submitted that its effect was limited. For instance he submitted that it had no application to, and could not explain, cases involving subdural bleeding and/or retinal haemmorhages. Degree of force 76. This leads on to a very important issue which arises in these appeals and will no doubt arise in many cases where the triad of injuries are present. It is the question of how much force is necessary to cause those injuries. There is a measure of common ground between the doctors on this issue. Generally it is agreed that there is no scientific method of correlating the amount of force used and the severity of the damage caused. To state the obvious, it is not possible to carry out experiments on living children. Further, experience shows that the human frame reacts differently in different infants to the same degree of force. However the medical opinion on this issue appears to be divided into those who maintain that severe injuries can confidently be ascribed to a traumatic cause, for example (but not only) Dr Rorke-Adams, a very experienced paediatric neuropathologist, and those who maintain that very little force may cause very serious injuries, for example Dr John Plunkett, a distinguished anatomical, clinical and forensic pathologist. 77. It is quite impossible for this court to make any finding on this issue beyond referring to some general propositions with which both counsel agreed. First, common sense suggests that the more severe the injuries the more probable they will have been caused by greater force than mere “rough handling”. We note that the most recent Update from the Ophthalmology Child Abuse Working Party; Royal College of Ophthalmologists (2004) concludes: “ It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child.” 78. Secondly, as Mr Peter Richards, a very experienced neurosurgeon with a speciality in paediatrics, pointed out, if rough handling of an infant or something less than rough handling, commonly caused the sort of injuries which resulted in death, the hospitals would be full of such cases. In our view this points to the fact that cases of serious injuries caused by very minor force such as might occur in normal handling or rough handling of an infant, are likely to be rare or even extremely rare. 79. But, thirdly, as Dr Plunkett demonstrated by his research and in particular by reference to an amateur video of a child falling from a 3 foot high railing, described as part of a play tree-house, which resulted in catastrophic injuries, there will be cases where a small degree of force or a minor fall will cause very severe injuries. We shall have more to say about Dr Plunkett’s research later in this judgment, but at this stage we repeat that the evidence suggests that cases where this occurs are likely to be very rare. 80. Fourthly, although the younger the infant or child, the more vulnerable it is likely to be, it is not possible to conclude that age is necessarily a factor in deciding whether injuries are caused by strong force or a minimal degree of force or impact. The balance of the evidence is that, although an infant’s skull is more pliable than that of an older child, the internal organs and vessels are as robust as those of an older child. The vulnerability of an infant arises from the fact that its head is generally larger in proportion to its body than in an older child and its neck muscles are weaker and not as well developed as in older children, hence the significance of injuries at the site of the craniocervical junction. Biomechanics 81. In simple terms “biomechanics” is the application of traditional engineering principles to living organisms. 82. Many of the experts who gave evidence before us made reference to research in the field of biomechanics. The following extracts from the evidence demonstrate how the ‘biomechanics’ argument was deployed by both sides. 83. Dr Squier referred to the “huge amount of evidence about the biomechanics” of shaking which had caused her to revise her views on the diagnosis of shaking. 84. Dr Geddes stated that belief that thin film subdural haemorrhages were caused by the rupture of bridging veins was “biomechanically exceptionally unlikely”. She relied upon biomechanical research to support the view that shaking on its own cannot cause subdural haemorrhages and retinal haemorrhages without also significant structural damage to the neck and probably also a degree of axonal injury. 85. Dr Plunkett stressed the importance of understanding the mechanics of injury. 86. Dr Adams, referring to biomechanical research by Ommaya, considered that shaking was an improbable direct cause of retinal haemorrhage. 87. Mr Richards warned that, however good the biomechanical calculations may be, they do not always appear to give an answer that is common sense. He went on to stress that limits of current knowledge and understanding: “Nobody really knows whether, when you shake a child, it is just back and forth or there is rotation as well. What does the head do? Does it decelerate against the back? Does it decelerate against the chin? When you put the child down, there must be an element of deceleration. It is a complex problem.” 88. Of course none of the witnesses who gave evidence in the appeal was themselves an expert in biomechanics. Such were the number of references to biomechanics during the early days of the hearing that it became inevitable that some direct expert evidence on the subject was required. To that end the appellants filed a report by Dr Thibault and the Crown filed a report by Dr Gina Bertocci (dealing specifically with the case of Cherry). Because of the logistics involved, not least the constraints of time, it was not possible for either of these witnesses to give oral evidence. Consequently we are left to evaluate this important area by comparing and contrasting the views expressed on paper by Dr Thibault and Dr Bertocci. 89. Dr Thibault is a biomechanical engineer whose work has a particular emphasis on “Paediatric Head Injury Mechanics”. Dr Thibault is not a doctor of medicine and holds a PhD in mechanical engineering. He has apparently performed experiments that have sought to mirror the age-dependant mechanical behaviour of the infant skull, sutures and brain. Part of the work in this field is to determine the amount of physical force that a living system can tolerate and thereby identify the “injury threshold” or “injury tolerance criteria”. When the relevant threshold or criteria is exceeded the system or tissue will fail; for example stress on a bone will cause the bone to fracture if the stress exceeds the injury threshold. 90. Dr Thibault explained that whereas there is a substantial body of research into the mechanics of adult head injury, until recently there has been relatively little similar work in relation to paediatric head injury. He reported: “It has been demonstrated experimentally and validated through real-world accident analysis that various intracranial pathologies result from excessive angular acceleration of the head. In general, angular acceleration of the head creates relative motion between the brain and the skull, causing potentially injurious strain within the intracranial neural and vascular tissues (bridging vessels, deep central white matter). The nature, distribution and severity of the resulting pathology depend not only on the angular acceleration magnitude, but also on its direction, onset rate and duration.” 91. Like Dr Plunkett, Dr Thibault (relying on the research of Prange and others) drew attention to the ability of the skull of an infant to react to force by deforming itself and thereby causing internal injury to the brain substance and/or cranial vascular system. 92. In general terms, Dr Thibault joined issue with the conventional view that short falls are a frequent occurrence for young children and serious or fatal injuries from such falls are rare. Recourse is also typically made to information about high speed traffic accidents or falls from two storey buildings. Dr Thibault considered such an approach to be simply “arbitrary, unscientific and meaningless” in that there is no attempt to evaluate the actual loads and forces at play in each individual case, which would need to include data regarding the child’s orientation at impact, kinematics (motion) of the body, impact surface and anatomical impact locations. Dr Thibault is clear that impacts arising from falls can result in serious and fatal brain injuries. 93. The appellants rely upon the report of Dr Thibault for the following submissions: a) Shaking only could not produce the documented pathologies seen in these children; b) If “violent shaking” of the sort required to produce the documented injuries had taken place one would have expected cervico-medullary injury, cervical spine and spinal cord injury. 94. The Crown’s expert, Dr Bertocci, is also a mechanical engineer by training and is Associate Professor of Biomechanics and Director of the Injury Risk Assessment and Prevention Laboratory in the University of Louisville, Kentucky, USA. Her primary area of research is injury biomechanics in cases of child abuse and paediatric falls. Dr Bertocci’s report is very largely focussed upon the Cherry case and is not intended to be a comprehensive analysis of the biomechanical factors in play in each of these cases. 95. One general observation that Dr Bertocci, however, made is based upon her research into falls either from ground level or from 9 inches above ground. Her conclusion in this regard is that the forces involved in such falls are well below the threshold said to be required to produce diffuse axonal injury in an infant, suggesting that there is a very low risk of DAI in such falls. 96. In this section of our judgment we have done no more than summarise this evidence. Where such evidence is called by one or other party or both in future litigation it will be for the jury (in a criminal trial) or the judge (in a civil trial) to evaluate it in the light of the cross-examination and all the other evidence. Retinal haemorrhages 97. Retinal haemorrhage is the third limb of the triad. It will be recalled that Professor Carol Jenny told us that in her view in a case of pure shaking extreme caution should be exercised before a diagnosis of NAHI is made in the absence of retinal haemmorhage. We see the force of this evidence. In cases of injuries alleged to have been caused by an impact or impacts, the evidence suggests that it is not a prerequisite for retinal haemorrhages to be found. Again, we understand the logic of this proposition. 98. It is agreed between the expert ophthalmologists and ophthalmic surgeons that a rapid rise in intracranial pressure can cause retinal haemorrhages although the amount and type of pressure required to cause such haemorrhages is a matter of debate. The appellants’ expert ophthalmic surgeon, Dr Gillian Adams, said that retinal haemorrhages could be caused by a spike or surge of venous pressure. Mr Peter Richards said that in his experience of carrying out brain surgery artificially induced very high venous pressure did not cause retinal haemorrhages. 99. Some of the ophthalmic experts stated that retinal haemorrhages caused by shaking or impact demonstrate entirely different characteristics from retinal haemorrhages arising from other causes. Others said that no distinction can be made between retinal haemorrhages arising from different causes. 100. Again, in the context of these appeals, we make no findings in respect of these differences of opinion. In future cases before a criminal or civil court, the type and extent of retinal haemorrhage and its place in the constellations of symptoms will be a matter for the court to evaluate in each individual case. We bear them in mind when reaching our conclusions in these four appeals. We also bear in mind Mr Horwell’s submission that the real question in these appeals is how much force is necessary to cause not just one element of the triad but all three. The Law 101. The principles on which this Court should act in appeals involving fresh evidence are not in dispute. They were clearly set out in R v Pendleton [2002] 1Cr App. R. 441 by Lord Bingham of Cornhill (see in particular paragraphs 18 and 19). They were repeated by Lord Brown of Heaton-under-Heywood in a recent case in the Privy Council: Dial and another v State of Trinidad and Tobago [2005] 1WLR 1660 . Lord Brown said (see paragraphs 31 and 32): “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 WLR 72, 83, para 19. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Staffords case [1974] AC 878 , 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 rest 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.” 102. Mr Mansfield QC also drew our attention to passages in the judgments of this court in R v Cannings [2004] 2Cr. App. R.7 and R v Kai-Whitewind [2005] EWCA 1092. In particular in opening he referred to paragraph 22 of Cannings : “These observations serve to highlight the second problem which can arise in this case, and case like Sally Clark and Trupti Patel. We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remain as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both hear and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge”. But as the court was careful to point out later in the judgment at paragraph 178 this does not mean that fanciful doubts are a basis for rejecting expert evidence. With the general observations, referred to above and the legal principles in mind, we turn to the individual appeals. Furthermore, the limits of Cannings and its proper use were carefully explored in Kai-Whitewind , at [73] – [92], in observations with which we wholeheartedly agree. H arris 103. Mr Mansfield QC submits that there is a body of fresh evidence which is sufficient to cause this court on a review to quash the conviction. Mr Horwell submits that the fresh evidence has not in any way undermined the safety of the conviction. 104. Before we outline and discuss the fresh evidence we must refer in a little more detail to the evidence given at trial. Although Harris said that Patrick had been showing signs of some infection before 4 December 1998, on that day he was seen by a health visitor, Margaret Savill, and a doctor, Dr Michael Tory, at Boulton Clinic in Alvaston both of whom pronounced him fit to be given his third immunisation against diphtheria, tetanus, whooping cough, polio and HIB. Statements of their evidence to that effect were read at trial. In his statement, Dr Tory said that a child would not be given this injection unless he was satisfied that it was not suffering from a raised temperature, vomiting or diarrhoea. A mild cold or snuffle would not have prevented the injection being given. 105. On arrival at Harris’ home at 2.41am the paramedic crew noted that Patrick was unconscious, cold, not moving, pulseless and not breathing. At 2.55am the crew diagnosed that he was suffering from cardio-respiratory arrest. Dr Adams, an ophthalmic surgeon called on behalf of Harris, interpreted diagrams of the eyes made by the crew as showing that the pupils were fixed and dilated. In any event this finding was made by Dr Bertenshaw who examined Patrick at 03.15am at the Derby Children’ Hospital. 106. After being transferred from Derby to the Queens Medical Centre in Nottingham a CT scan was carried out at 11.50am. The findings were recorded by the radiologist and his conclusion was: “Diffuse cerebral swelling and oedema secondary to hypoxia/ischaemia. Thin subdural haematoma in the para-falsine region. The appearances are suspicious of shaking or shaking - impact injury” 107. Following Patrick’s death a post-mortem was carried out by Dr Bouch with Dr McKeever, a paediatric pathologist, in attendance. The findings relevant to this appeal are set out in Dr Bouch’s witness statement of 22 March 1999. Paragraph 5 reads: “The post-mortem examination confirmed a markedly swollen and softened brain and softened spinal cord with small amounts of subdural haemorrhage around the tentorium cerebelli at the foramen magnum and in the subdural space along the length of the spinal cord. Detailed examination by Professor Lowe confirmed widespread hypoxic (anoxic or ischaemic) changes within the brain resulting in marked swelling, necrosis of the cerebellum, haemorrhage into the left lateral ventricle and subarachnoid haemorrhage over the surface of the spinal chord and medulla. Professor Green confirmed extensive haemorrhages through the retina and the vitreous of both eyes with some retinal detachment” Dr Bouch recorded the cause of death as cerebral hypoxia/ischaemia; intracranial haemorrhage; shaken baby syndrome. In his witness statement Dr Bouch said he had been advised that Patrick may have been shaken as part of an attempt to revive him. He said that he could not exclude such a shake as having caused the injuries but commented “accepted medical opinion is that the force required to produce injuries from shaking is greater than that resulting from rough handling of an infant”. As already noted, Dr Punt said that the blood on the surface of the brain was not sufficient to cause Patrick’s death. In his opinion it was the injury to the brain, caused by shaking, which caused his death. The new evidence on the appeal 108. In this appeal we have heard evidence from the following witnesses called on behalf of Harris: Dr Waney Squier, a consultant neuropathologist, with a speciality in examining children’s brains; Dr Jennian Geddes, although her evidence was primarily confined to general matters; Professor Philip Luthert, a consultant ophthalmic pathologist and neuropathologist; Dr Gillian Adams, a consultant ophthalmic surgeon; Professor James Morris, a consultant pathologist; Dr Robert Sunderland, a consultant paediatrician; and Dr Philip Anslow, a consultant neuroradiologist. 109. The Crown called the following witnesses: Dr Lucy Rorke-Adams, a consultant paediatric neuropathologist; Mr Peter Richards, a consultant neurosurgeon; Dr Richard Bonshek, a consultant ophthalmic pathologist; Mr R Gregson, a consultant ophthalmic surgeon; Dr William Lawler, a forensic pathologist; Dr Carole Jenny, a consultant paediatrician and consultant neuro trauma specialist; Professor Klein, a consultant physician; Dr Timothy Jaspan, a consultant radiologist; Dr Paul Giangrande, a consultant haematologist; and Dr Mark Peters, a consultant paediatric intensivist. We have also read statements submitted from the following experts on behalf of the Crown: Dr Harish Vyas, a consultant in paediatric intensive care and respiratory medicine; and Dr Angie Wade a senior lecturer in medical statistics. 110. All these witnesses are clearly very experienced doctors in their own field. We shall summarise the evidence which they gave according to their respective specialities and only so far as is necessary to explain the important issues in this appeal. The neuropathologists 111. The reports provided by Dr Waney Squier and Dr Rorke-Adams disclosed a head-on collision between these two experts on the pathological findings and on the cause of death. In our judgment they are the two of the most important witnesses in this appeal. Much of the debate has been focussed on the pathological findings and their interpretation. 112. Dr Waney Squier is a consultant and clinical lecturer at the Department of Neuropathology at the Radcliffe Infirmary, Oxford. Dr Rorke-Adams is the clinical professor of paediatrics at the University of Pennsylvania. She is clearly a very experienced and well respected member of her profession. 113. Dr Waney Squier started with the forensic disadvantage of having provided a report dated 10 February 2000 for Harris’s trial solicitors in which she concluded that Patrick’s injuries were non-accidental and consistent with shaking. Unsurprisingly, she was not called at trial to give evidence on Harris’ behalf. She explained that, influenced by the research carried out by Dr Geddes since the trial, she had re-examined her own work in the light of the Geddes research. As a result in this case she had changed her mind and now concluded that the brain findings were of severe swelling and hypoxic/ischaemic injury; and that there was no incontrovertible evidence of trauma. She relied upon the history given by Harris and the clinical evidence as support for her conclusions. 114. Dr Rorke-Adams, having examined all the pathological evidence, the history and the clinical history concluded that the injuries to the brain, the subdural haemorrhages and retinal haemorrhages, were all clear evidence of traumatic injuries caused by strong force. 115. In the course of their evidence each of these witnesses commented on brain slices and photographs taken at the post mortem. Their evidence in respect of the findings demonstrated by the photographs and slices was in sharp conflict in a number of instances. 116. Photographs, G-H 1, 2 and 3, were said by Dr Rorke-Adams to show clear evidence of brain injury caused by trauma. She said that there could be no other cause. Dr Squier was of the opinion that the injuries shown in the photographs 1 and 3 and damage to nerve tissue at the cervicocranial junction were probably not caused by trauma and were consistent with herniation of the brain at the foramen magnum. She said herniation was caused by the pressure of the swelling brain when it impacted with the narrowing channel of the foramen magnum. As to the blood shown in photograph 2 Dr Squier said this was intrafalcine bleeding (bruising) within the membrane, seen at post mortem which was an extremely common finding in babies who have suffered from failure from blood or oxygen supply. 117. There was no dispute that photographs G-H 4 and 5 showed subdural haemorrhages in the areas of the spinal cord. However, Dr Rorke-Adams gave as the explanation for these that the vertebral arteries must have been ruptured causing massive subarachnoid bleeding and subdural haemorrhages. She accepted that the post mortem revealed no soft tissue injuries to the neck but pointed out this explanation fitted with the combination of findings. 118. Dr Squier described the subdural haemorrhages of the spine as probably caused by blood seeping down from the haemorrhage at the craniocervical junction. She said it was a common finding. Further, she did not accept that such subdural haemorrhages as were found at post mortem were caused by trauma. She said that it was local tissue necrosis causing bleeding exacerbated by a clotting disorder (DIC). In addition she said that she had seen cases where bleeding had seeped from the dura into the subdural space. As an example of this she provided her findings in the case to which we have referred in paragraphs 71 to 73. 119. In our judgment there are difficulties with the evidence of both these doctors in respect of their findings. The problem so far as Dr Squier is concerned is three-fold. First her explanation of herniation as the cause of haemorrhages in the area of the foramen magnum is, on the evidence we have heard, to say the least controversial. Dr Rorke-Adams dismissed this explanation as impossible. Mr Peter Richards said that in his 20 years experience as a surgeon he had never seen a case of herniation of the brain causing haemorrhaging at this site. He described Dr Squier’s evidence on this point as astonishing. Secondly, Dr Squier can provide no explanation for the mechanism that triggered these injuries. All she can say is that the primary source of the injuries was some form of brain swelling, but she was unable to give any precise cause for the swelling. In her view the most likely explanation was sepsis or infection; and the least likely was trauma. Beyond that she frankly admitted she did not know. Thirdly, Dr Giangrande, whose evidence was not challenged, said that there was no question of DIC playing any part in any of these injuries. 120. So far as Dr Rorke-Adams is concerned, in our judgment, there are also difficulties in respect of her evidence. First, the injury to the brain which she described by reference to photographs G-H 1, 2 and 3 are not referred to in the post mortem report of Dr Bouch. Secondly, her explanation of a rupture of the vertebral artery may not be entirely consistent with there being no evidence of a soft tissue injury to the neck. But, as she pointed out, at post mortem the vertebral arteries were not dissected. Thirdly, subdural haemorrhages of the spine would appear to be very rare. Fourthly, the subdural haemorrhages described by her are neither thin-film nor situated in the classic position for SBS namely at the top of the head. 121. Before leaving the evidence of the two neuropathologists it is convenient to refer to the evidence given in this appeal by the neuroradiologists, Dr Anslow and Dr Jaspan. And we should also refer to the evidence of Mr Peter Richards. Dr Anslow and Dr Jaspan agreed that the CT scan taken at 11.50am on 5 December at the Queens Medical Centre showed a swollen brain. The sole issue between them was whether the scan showed subdural haemorrhages in the area of the posterior falx (photograph G-H 2). Dr Jaspan concluded that it was subdural; Dr Anslow that it was intradural. In the end this dispute was resolved by Dr Rorke-Adams stating that the photograph taken at post mortem, rather than the scan, showed interdural bleeding or interfalcine bleeding that is bleeding between the two dural layers in and either side of the falx. 122. Mr Richards, an obviously very experienced neurosurgeon, had no doubt that a finding that the triad of injuries was present was correct. He was equally not in doubt that the force used to cause these injuries must have been more than rough handling. In cross-examination he agreed that he was unable to say what was the minimum force which could give rise to similar injuries. The ophthalmic witnesses 123. The measure of agreement between the witnesses in this area of expertise was a little greater than that between Dr Squier and Dr Rorke-Adams. There was no dispute that the retinal haemorrhages were quite severe injuries and that they could have been caused by shaking. Dr Rorke-Adams had described the retinal haemorrhages as severe and towards the top end of the scale. This description was similar to descriptions given by other witnesses. There was also no dispute that on their own retinal haemorrhages findings were not diagnostic of SBS. Next, it was agreed that a sharp surge in ICP could cause retinal haemorrhages although the degree of raised ICP necessary to cause such injuries was not agreed. We have already referred to Mr Richards’ experience of carrying out brain surgery procedures designed to increase venous pressure substantially, but which had not caused retinal haemorrhages (see paragraph 99). 124. On the question of the force required to produce retinal haemorrhages by shaking we have referred to the 2004 paper produced by the working party of the Royal College of Ophthalmologists. No witness was able to provide a measure of the force required. Mr Mansfield QC asked each witness what was the minimum force required. For obvious reasons no witness was able to provide an answer to this question. 125. Dr Adams expressed the opinion that the fact that the ambulance crew noted Patrick’s pupils to be fixed and dilated at 2.41am on 5 December was a sign that the brain was swollen at that stage. She said fixed and dilated pupils were a clinical sign of brain swelling. Brain swelling caused stretching of the third nerve which in turn affected the pupils of the eyes. In her opinion the retinal haemorrhages were caused by raised intercranial pressure, a more probable cause than shaking. However, she said that in the absence of evidence of brain swelling the cause of retinal haemorrhages may well be shaking. On the question of the force necessary to cause retinal haemorrhages she said that the fact that the injuries were at the top end of the scale did not provide any information as to their aetiology and “You have to look at the whole picture.” 126. Dr Jaspan and Mr Richards did not accept that there could have been brain swelling at 2.41am. Dr Jaspan, in his report, said that if a CT scan had been carried out at the time when retinal haemorrhages was first seen at Derby Children’s Hospital little brain swelling would have been evident. In evidence, Dr Jaspan said one to two hours after an apnoeic incident one can start to see mild and subtle signs of swelling. The swelling may then progress swiftly in relatively few hours; or in other cases it could take twenty-four to forty-eight hours. Mr Richards said that ICP is normal for some hours after an apnoeic incident, possibly four to five hours before it starts to rise slowly. Mr Gregson also disagreed with Dr Adams on this point. He said that the more likely explanation was at that time, in a period of cardio-arrest, the part of the brain which controls the pupils had become hypoxic (Patrick was noted as pulseless). This would have caused the pupils to become fixed and dilated. This explanation was put to Dr Adams, she said her explanation was more probable and that the explanation given by Mr Gregson was one which only occurred when the infant was near death. 127. The impact of this issue is that, if Dr Adams may be correct, brain swelling may have taken place sooner than supposed by the Crown’s witnesses making it possible that there was a cause for the retinal haemorrhage findings other than shaking. 128. Professor Luthert described the critical issue of the retinal haemorrhage findings in this appeal as whether it was feasible that there had been a significant and rapid increase in intracranial pressure so as to cause them. When asked whether subdural haemorrhages and retinal haemorrhages were associated with cardiac arrest, he said it was not in the context of events in hospital but the possibility of low brainstem damage might be important and might well produce a pattern of cardio-respiratory arrest which is rather different from that seen in other contexts. Although he described the retinal haemorrhages findings in Patrick’s case as typical of those found in cases of alleged NAHI, Professor Luthert was one of those doctors who was concerned that the triad was a hypothesis and that the full aetiology of the injuries comprising the triad was not “necessarily known.” 129. Mr Gregson described the retinal haemorrhages findings as very severe and was of the opinion that they could only have been caused by a severe degree of trauma. Dr Bonshek agreed with this opinion. In his report he described the injuries as highly suggestive of non-accidental injury. Both Mr Gregson and Dr Bonshek agreed that the degree of injury was not necessarily commensurate with the degree of force used to create it. Evidence of a possible infection 130. One of the difficulties faced by Harris at trial and in this appeal is to suggest what was the cause of Patrick’s collapse, if it was not shaking. Of course, as Mr Mansfield QC properly pointed out, a defendant faced with an allegation of unlawfully shaking an infant so as to cause injury or death, does not have to provide evidence of, let alone prove, an alternative cause. Nevertheless in cases such as this both prosecution and defence will seek to prove respectively either that there was no alternative cause or that there was one. Not surprisingly we have heard a good deal of evidence on the issue of whether or not Patrick’s condition might have been caused by some form of infection. We have already noted Dr Squier’s opinion that the primary cause of brain swelling in this case was or may have been infection. To deal with this issue we heard evidence principally, but not exclusively, from Professor Morris and Dr Sunderland called on behalf of Harris; and Dr Carole Jenny, Professor Klein and Dr Mark Peters called on behalf of the Crown. 131. We shall deal with this issue comparatively shortly for the reason that in his final submissions Mr Mansfield QC accepted that every possible infection suggested by Professor Morris and Dr Sunderland as a possible cause of Patrick’s collapse was effectively disproved by the evidence called on behalf of the Crown. 132. Apart from the fact that there is some evidence that Patrick had, at worst, an upper respiratory chest infection, probably a cold, for a day or two before 4 December 1998 there was no evidence at all to suggest that he had any other infection, let alone one which might have been sufficiently severe as to cause his death. In the end Professor Morris was driven to suggest that there was a possibility that the ambulance crew arrived at the precise moment when Patrick was suffering an unexplained episode from which he would not have recovered. Professor Morris suggested that it was the resuscitative procedures which had kept him alive thereby giving his brain time to swell. We regard this suggestion as speculative and fanciful. 133. Dr Sunderland suggested that the history given by Harris of Patrick grunting and having difficulty breathing might have been bronchilitis caused by respiratory syncital virus (RSV). In our judgment this suggestion was effectively demolished by the evidence of Dr Mark Peters. 134. There is however one matter which cannot be disposed of so summarily. Professor Morris advanced the theory that although Patrick’s death could not be categorised as a SIDS (sudden infant death syndrome), it could be akin to SUDI: that is a sudden unexplained death from a natural cause or natural disease. His report prepared for this appeal sets out statistics relating to SIDS and SUDIs. These statistics have been comprehensively criticised in a statement made by Dr Angie Wade. Further, she points out that Professor Morris is a pathologist not a statistician. 135. In our judgment, leaving aside Professor Morris’ statistics, the general point being made by him is the obvious point that the science relating to infant deaths remains incomplete. As Mr Richards said when asked a question in the context of the amount of force necessary to cause injuries, he agreed that the assessment of injuries is open to a great deal of further experimentation and information. He assented to the proposition “We don’t know all we should”. Similarly, Professor Luthert in his evidence said: “My reason for making that statement is simply that there are many cases where questions are raised as to how the child died and, because there is a big question mark over the circumstances, it is rather tempting to assume that ways of causing death in this fashion that we do know about are the only reasonable explanations. But in fact I think we have had examples of this – I have heard already. There are areas of ignorance. It is very easy to try and fill those areas of ignorance with what we know, but I think it is very important to accept that we do not necessarily have a sufficient understanding to explain every case.” As noted by the Court in Cannings and Kai-Whitewind these observations apply generally to infant deaths. Professor Whitwell 136. We have left Professor Whitwell’s evidence until last when dealing with the evidence in this appeal. She was one of the team of doctors who co-authored Geddes III with Dr Geddes. In our judgment her view must necessarily be considered in the light of Dr Geddes’ concessions in respect of Geddes III. 137. In this case having examined all the material, Professor Whitwell produced a report in which she referred to the fact that the major pathology was of hypoxic-ischaemic trauma damage which she said might be secondary to trauma or other cause of cardio-respiratory arrest. She went on to raise the question of the degree of force necessary to produce localised neck injuries. Her opinion expressed in the final paragraph of her report was that the injuries to the brain may have arisen in the background of a “shaking” incident but there was a possibility of an underlying natural cause of the collapse. She said the neuropathological findings may be open to several interpretations. 138. In evidence she gave some support to Dr Squier’s opinion that bleeding and injuries to the nerve roots could have been caused by herniation. But she agreed in cross-examination that the most significant factor in her opinion was a stretching injury to the nerve roots. The submissions 139. Mr Horwell submitted that the new evidence did not undermine the conviction. He asked the Court to accept that the triad had survived intact. He pointed to the fact that at 1.00am on 5 December 1998 Dr Barber examined Patrick and found him to be well. At 2.30am Patrick was found to be suffering cardio-respiratory arrest. Mr Horwell submitted that the only credible explanation for this sudden collapse was shaking by Harris. The triad of injuries was established and there was no credible alternative cause of these injuries. In addition, Dr Rorke-Adams’ evidence of injuries to the brain should be accepted. He submitted that her evidence together with the evidence of the doctors dealing with the ocular injuries demonstrated that unlawful force had been used. He argued that Harris was asking the court to accept that the cause of death was a series of coincidences involving two unlikely syndromes. He invited the Court to find that all suggested causes of Patrick’s collapse and death other than the triad had been disproved. The conviction was therefore safe. 140. Mr Mansfield QC submitted that there were disagreements between the experts as to the cause of death. He rightly pointed out that it was not for Harris to prove an alternative cause of Patrick’s death. He submitted that this Court could not decide matters which a jury should decide such as the differences of opinion expressed by Dr Squier and Dr Rorke-Adams. Finally, he submitted that in a case such as this, where the clinical evidence and the history given by the mother, ran completely contrary to a finding of unlawful force, the Court was entitled to accept that this was one of those cases where the explanation for Patrick’s injuries and his death was just not known; and/or that the amount of force used by her was no more than any mother might use to revive her baby and therefore not unlawful. Conclusion in this appeal 141. In considering all the evidence in this appeal we have kept well in mind that our task is to decide whether the conviction is safe. We also bear in mind Lord Bingham’s test in Pendleton in a case of any difficulty (which in our view this is) of “asking whether the evidence, if given at the trial might reasonably have affected the decision of the trial jury to convict.” This approach, in our judgment, merits careful consideration in this appeal. 142. We have already stated that so far as the evidence relating to an alternative cause of death based on a possible infection is concerned, in our judgment, this evidence does not form any basis for holding that the conviction is unsafe. 143. So far as the other issues are concerned, the evidence at trial and the evidence adduced by the Crown in this appeal, provide a strong case against Harris. Mr Horwell’s submission that the triad is established and that any attempt to undermine it is based on speculation is a powerful one. Nevertheless strong as is the case against Harris we have concerns about the safety of the conviction. 144. First, in order to dismiss the appeal, we would have to accede to Mr Horwell’s submission that we should reject Dr Squier’s evidence in its entirety. If Dr Squier may be right, such evidence of subdural bleeding as she accepts was present was small; untypical of the usual thin-film subdural haemorrhages found in triad cases; in the sense that it was not found at the top of the head and probably not caused by trauma. Secondly, if Dr Squier is, or may be, right there is no pathological evidence of trauma. At one stage Mr Horwell in cross-examination, suggested to Dr Squier that she had lost objectivity in her evidence in this appeal. This was a bold assertion and one which we find difficult to accept. It was put at the end of her evidence when Dr Squier was describing subdural haemorrhages in another case which she said represented bleeding seeping from the dura into the subdural space (see paragraph 71 to 73 above). As we have said already we find it impossible to conclude that on this issue Dr Squier’s evidence is plainly wrong and that Dr Rorke-Adams must be correct. 145. The importance of Dr Squier’s evidence is that it throws doubt on the significance of such subdural haemorrhages as there are; and it throws doubt on the evidence of injuries to the brain described by Dr Rorke-Adams. We are far from saying that we accept Dr Squier’s evidence in preference to that of Dr Rorke-Adams. Indeed, in view of the weight of evidence disputing her opinions we have reservations about whether Dr Squier can be right. But equally, in all the circumstances of this case, the differences between them are ones which the jury would have had to have assessed in the light of all the evidence in the case. 146. Secondly, although the evidence of the findings of retinal haemorrhages is powerful supporting evidence of shaking, on its own it is not diagnostic of shaking. If the subdural haemorrhages are undermined, the retinal haemorrhages findings will not fill the gap although we recognise that both can be considered together. There is also the issue of whether Dr Adams may be correct in her view that fixed and dilated pupils seen by the ambulance crew was a sign of brain swelling at that time. 147. Thirdly, although as we have already stated the amount of force required to cause the triad of injuries will in most case be more than just rough handling, the evidence suggests that there will be rare cases when injuries will not correspond to the amount of force used. It is at least possible that in such rare cases (maybe very rare cases) very little force will cause catastrophic injuries. 148. In this connection the evidence shows that in recent years the medical profession has become more aware of the degree of force necessary to cause injuries by the growing science of biomechanics. This knowledge, and to an extent Geddes I and II, in our judgment, have had the effect of moderating to some extent the conventional view that strong force is required to cause the triad of injuries. In this case Dr Bouch rejected as an explanation for the injuries he found, shaking by Harris to revive Patrick. Today he might have taken a less firm stance. This knowledge might also have acted as a counter-balance to the evidence given at trial by Professor Green on the amount of force necessary to cause the retinal haemorrhages. 149. The above factors, which have all arisen out of post-trial material have to be assessed against the background of the clinical evidence which in our judgment is significant and important. As Dr Anslow said in his report of 3 June 2005: “The clinical history is perhaps the most important clinical tool available to the clinician and to reject the carer’s version of events in favour of another requires the highest possible level of medical evidence. After all, the Doctor is effectively accusing the carer of lying.” Dr Anslow is not a clinician but in our judgment his words of caution are apt in cases of this sort. 150. At the outset of this judgment we have set out the clinical history. In summary, Harris was described as a careful and caring mother. She called out Dr Barber late at night because of her concerns for Patrick. Dr Barber described her as being calm and controlled at that time. The prosecution’s case at trial was that in the interval between Dr Barber leaving the house and 2.30am when Harris telephoned the emergency services she must have violently and unlawfully shaken Patrick. In our judgment this history combined with the absence of findings of bruises to any part of the head, face or body; and the absence of fractures or any other sign apart from the triad of injuries, does not fit easily with the Crown’s case of an unlawful assault based on the triad of injuries, itself a hypothesis. 151. The Crown relies upon the fact that Patrick was in the sole care of Harris throughout the evening of 4/5 December. It is also correct that Harris admitted shaking Patrick in an effort to revive him; and bouncing him on her knee when she was telephoning the emergency services. But, those actions are not suggestive of unlawful force being used by her although it is possible that a jury might now find them to be sufficient to cause the injuries seen by Dr Bouch albeit not unlawful. 152. As we have said the Crown’s evidence and arguments are powerful. We are conscious that the witnesses called on behalf of Harris have not identified to our satisfaction a specific alternative cause of Patrick’s injuries. But, in this appeal the triad stands alone and in our judgment the clinical evidence points away from NAHI. Here the triad itself may be uncertain for the reasons already expressed. In any event, on our view of the evidence in these appeals, the mere presence of the triad on its own cannot automatically or necessarily lead to a diagnosis of NAHI. 153. The central issue at trial was whether Harris caused the death of her son, Patrick by the use of unlawful force. We ask ourselves whether the fresh evidence, which we have heard as to the cause of death and the amount force necessary to cause the triad, might reasonably have affected the jury’s decision to convict. For all the reasons referred to we have concluded that it might. Accordingly the conviction is unsafe and this appeal must be allowed. The conviction will be quashed. Rock The focus of the appeal 154. The history of this matter has already been set out; we turn directly to the appeal. Certain matters are common ground. First, there is no dispute that Rock did shake Heidi; there is likewise no dispute (given the full thickness bruise to the back of the head) that she suffered an impact. Secondly, there is no realistic suggestion that disease or infection could possibly have played a role in Heidi’s death. The thrust of the appeal was instead that the conviction was unsafe in the light of research subsequent to the trial, calling into question the minimum degree of force necessary to cause the pathology in this case. Rock, it was submitted, was not safely convicted of any offence; at the very least, his conviction of murder was unsafe and a conviction of manslaughter should be substituted. 155. For its part, the Crown vigorously resisted the notion that there was any real alternative to unlawful killing. Here, as elsewhere, it was to be borne in mind that the minimum degree of force in question was the degree of force necessary to cause all the injuries suffered; Geddes I and II did not address the minimum degree of force necessary to tear bridging veins and cause retinal haemorrhages; the “unified hypothesis” (i.e., Geddes III) which might have done so, has of course gone. The surrounding circumstances and the injuries suffered amply supported the safety of the conviction. While conceding in terms that if there had been the “triad” and no more, “that was unlikely ever in itself to be sufficient” to support a charge of murder (as distinct from manslaughter), here it was contended that there were additional features which justified the jury’s verdict – bearing in mind that the intention to cause grievous bodily harm could be both rapidly formed and almost instantly regretted. The new evidence on the appeal 156. In the view which we take of this appeal, it is unnecessary to review the new evidence at length; it suffices to summarise the position reached on the totality of the new material. 157. As to radiology, save for one area (to be mentioned shortly) there was no or no real dispute between Dr Anslow (called by Rock) and Dr Jaspan (called by the Crown). The first CT scan, taken on the 2 June 1998 at about 10.21 pm, some 2 ½ hours after Heidi’s admission into hospital, showed a minimally swollen brain but the presence of subdural blood. On the 4 June, some 39 hours later, the second CT scan revealed a very different picture. This showed, apart from cerebellar tonsillar herniation and established hypoxic ischaemic brain damage, a grossly swollen brain but the same small amount of subdural bleeding – notwithstanding a “huge” (Dr Jaspan’s word) increase in pressure. Dr Anslow accepted that subdural bleeding at a time when there was no evidence of raised intra-cranial pressure (“ICP”), was a “very strong indicator” of trauma. On the assumption that Geddes III did not apply, he could think of no cause other than trauma to account for the subdural bleeding. 158. The only area of dispute between Dr Anslow and Dr Jaspan was whether a lesion in the corpus callosum revealed by MRI scans was caused by trauma; Dr Jaspan was firmly of the opinion that it was; Dr Anslow said that it might be an artefact. As we have already indicated such disputes between reputable experts potentially give rise to difficult issues on an appeal of this nature. In the event, notwithstanding the powerful nature of Dr Jaspan’s evidence in this regard, it is unnecessary for us to resolve this dispute. We proceed on the assumption that Dr Anslow might be correct. 159. In cross-examination, Mr. Mansfield QC put to Dr Jaspan one of the “scenarios” developed by Dr Geddes (see below), involving a departure from the evidence given by Rock at trial. This set of facts assumed that Heidi had struck her head when falling and was subsequently the subject of two well-intentioned shakes by Rock. Asked whether this was a possible scenario capable of explaining the injuries sustained by Heidi, Dr Jaspan’s initial (and firm) answer was “no”. He based this answer on his views as to the cause of the corpus callosum lesion. If wrong about that, he accepted that the scenario “might just be feasible”. Immediately thereafter, Dr Jaspan was re-examined by Mr Horwell as follows: “Q. If you leave the corpus callosum out of the equation, when you say it just might be feasible, what do you mean? A. Because in medicine there is never a hundred per cent certainty. So, if I was asked is there a hundred per cent certainty that it could happen, I would have to be honest and say no, there must be almost the freak situation where that could happen. Q. What are the chances from your clinical experience? A. By inference, 99 per cent unlikely.” In his final submissions, Mr Mansfield QC sought to suggest that these answers disclosed a major concession on Dr Jaspan’s part. Having seen and heard Dr Jaspan give evidence and having reviewed the transcript of his answers, we respectfully disagree. The essence of Dr Jaspan’s views remained plain and unaltered, albeit couched in rather more moderate and less graphic language than apparently deployed at trial. 160. Turning to the neuropathologists, in her report dated 14 April 1999, prepared for the trial (but which remained understandably unused by the defence), Dr Geddes said this: “I believe that both the intracranial and the intraocular bleeding are likely to have been the result of vigorous to-and-fro movements of the brain inside the skull, of the type that occurs in a shaking injury.” Subsequently, Dr Geddes has (as is well-known) revised her thinking. That said, in her evidence at trial, Dr Geddes accepted the presence of subdural haemorrhages but was unable to provide an explanation for them. She remained of the view that for violent shaking to have produced the subdural and retinal haemorrhages here, she would have expected some form of widespread diffuse axonal injury and damage to the muscles in the neck and spinal column. She accepted, however, in answer to questions from the Court, that, on any view, Heidi must have had some insult to the brain, not explained by Rock’s account of events. She could not rule out impact plus shaking. 161. In her report of 24 May 2005, Dr Geddes posited three “scenarios” (to which reference has already been made) which might have caused the pathological findings in this case. She could not be certain which of the three actually happened. The first scenario involved a low-level fall in which Heidi, among other things , knocked the back of her head, resulting in hyperflexion of the neck which damaged her brain stem. The second, also involved a fall, followed by a resuscitative (i.e., well-intentioned) shake by Rock, causing damage to her brain stem. In both these scenarios, damage to the brain stem resulted in Heidi’s breathing stopping, her brain swelling rapidly and consequential subdural and retinal bleeding. The third scenario involved an assault on Heidi. We are bound to observe that the suggested sequence of the first two scenarios is troubling, given the apparent conflict with the radiology evidence (see above). Moreover, Dr Geddes was closely cross-examined as to the factual basis for the first scenario, involving a departure from Rock’s own account of events – in which he was adamant that Heidi had not struck her head. Pressed on this point, Dr Geddes said that she was duty bound to point out that there was impact (given the bruise at the back of Heidi’s head); she thought that Rock must have been wrong in his account but had not given the matter attention when writing her 1999 report; she was (notwithstanding the factual evidence) prepared to speculate to this degree in now giving her evidence to the Court. 162. Dr Rorke-Adams and Dr Geddes disagreed as to (i) the extent of subarachnoid bleeding in this case; and (ii) the cause of a “hole” or “tear” in the corpus callosum (in a location different from that which formed the subject of the disagreement between the radiologists, already referred to). Once again, it is not necessary to resolve this dispute and, we proceed on the assumption that Dr Geddes might be correct. For our part, we find the agreement between Dr Rorke-Adams and Dr Geddes that there were here subdural haemorrhages considerably more significant than the areas in which they disagreed. As Dr Rorke-Adams put it: “Subdural haemorrhage is essentially always traumatic in origin except under very unusual circumstances….” In itself, of course, that answer cannot resolve the source of the trauma nor, insofar as it was inflicted by another, the intention with which it was inflicted. 163. On the appeals, evidence was given by Dr Plunkett, who has undertaken research into “low-level” infant falls – i.e., falls of less than 10’. The conclusions which Dr Plunkett drew from his study were that (i) low-level falls were capable of causing serious injury or death; but (ii) that there was no inevitability about it; as he expressed it: “…I do not know either an upper limit or a lower limit of impact velocity below which there is no injury and above which there is always injury.” Dr Plunkett’s evidence related to the cases of Rock, Cherry and Faulder. We shall have more to say of his evidence, in particular with regard to the Cherry case. 164. For the moment, we confine ourselves to Dr Plunkett’s evidence with regard to the appeal of Rock. Here, basing himself on the bruise on the back of Heidi’s scalp, Dr Plunkett expressed the opinion that her death was the result of an impact injury; this was an instance of a “low-velocity impact event with a bad outcome”. Plainly therefore, Dr Plunkett’s evidence entailed a departure from the evidence, as given by Rock; on no view, could a fall onto her bottom (as described by Rock) have explained this fatality. In Dr Plunkett’s view, Heidi’s head must have struck something, a matter unexplained on Rock’s account. 165. We come next to the evidence of the ophthalmic experts, Professor Luthert and Dr Adams, called by Rock and Dr Gregson, called by the Crown. It is convenient to take Dr Gregson’s evidence first. He put the matter starkly; the significance of the eye injuries was crucial to this case. The retinal injuries were at the very top of the range or not far from it. There were in addition para-macular retinal folds, a type of detached retina. In his evidence-in-chief, Dr Gregson explained this matter as follows: “Q. The retina is completely detached from the eye? A. The retina is folded up very much like a rug would be if you pushed it together. It is not detached in the same way as boxers get retinal detachments, but the fact that it is folded means it is not in the place that it should be.” A little earlier, Dr Gregson had observed that in children of Heidi’s age, he knew of no other cause for para-macular folds other than trauma; this was so, regardless of when the para-macular folds had first appeared. Moreover, the presence of para-macular folds was indicative of severe injury – “a lot of trauma” was required. His reason for this view was as follows: “…the retina wants to stay attached; it does not want to fold. It requires an effort to detach it.” 166. Turning to Professor Luthert, we begin with his written material. In his report of 14 April 1999, he was of the opinion that, absent any alternative explanation, severe trauma, such as shaking combined with impact, was the most likely explanation for the pathological findings in Heidi’s eyes. In his letter dated 12 January 2005, he maintained the view that such trauma (i.e., shaking, impact or both) was the most likely cause of Heidi’s death and the condition of her brain and eyes. He added this: “I do not believe that the presence of retinal haemorrhages necessarily implies a specific level of force although I think the level of force is likely to be more than would be seen in even rough normal play.” 167. In his oral evidence, Professor Luthert stated that it was difficult in an individual case to extrapolate from the severity of a retinal haemorrhage to any assumed degree of applied force. By contrast, in the generality of cases, it was to be expected that there would be a (broad) correlation between the degree of trauma and the seriousness of the injury suffered. That said, there was “not necessarily a tight correspondence between level of trauma and severity of outcome”. 168. Initially in his evidence, Professor Luthert said that it was difficult to “exclude with total confidence” the possibility that the fall described by Rock had caused the retinal injuries. Pressed, unsurprisingly, on this point, he ultimately accepted that a fall onto her bottom would not be expected to cause injuries of this nature. Although he said that he had seen “more severe” retinal injuries, he further accepted that these were “highly significant”, a description which he later amplified as meaning “extremely significant and abnormal pathology”. While he did not view the presence of para-macular folds as diagnostic of shaking, he agreed that they could not “in their entirety” have been artefactual – a necessary concession, as they had been noted during Heidi’s lifetime. He agreed in cross-examination that the “most likely explanation” for Heidi’s retinal injuries was shaking. In re-examination, Professor Luthert said that a version of the facts, in effect based on Dr Geddes’ first two scenarios, was not fanciful. 169. Returning to his written report of the 2 June 2005, Professor Luthert explained that since the original trial and following publications by Dr Geddes and Dr Plunkett, he had reconsidered the minimum degree of force required to generate the “triad”. He went on to say this: “The minimum level of force required to produce this syndrome can not be defined, but the recent Royal College of Ophthalmologists Working Party concluded ‘ It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child.’ In my opinion, it is now not possible to exclude the possibility that a well-intentioned but ill-advised shake might cause the pattern of pathology seen in Heidi. The same Working Party commented ‘It seems clear that minor falls can, only exceptionally, give rise to subdural and retinal bleeding. In these cases, it may well be that the biomechanics of the impact induce the rotational forces necessary to produce the picture considered typical of SBS.’ So it is difficult to exclude with total confidence the possibility that the fall caused the injuries seen. Finally, it is also feasible that Heidi was assaulted.” In answer to questions from the Court as to this passage, Professor Luthert asserted that he had relied on Geddes I and II but not Geddes III. Professor Luthert said that he had been a member of the Working Party and agreed with its conclusions. While he was (in effect) contemplating the infliction of some force going beyond rough play, by itself that did not determine the intention of the person inflicting the force. 170. In a nutshell, the evidence given by Dr Adams was to the following effect: i) The fall as described by Rock was not the cause of Heidi’s retinal haemorrhages; ii) The injuries to Heidi’s eyes were at the very top end of the scale; iii) The cause of those injuries was shaking or shaking and an impact; iv) Simply by looking at the retinal haemorrhages, it could not be said “definitively” what level of force had been applied. 171. For completeness, we note that in her reports Dr Adams had raised the question of whether a lumbar puncture might have been the cause of the retinal damage. Suffice to say that no evidence emerged to support this line of inquiry and Mr. Richards gave cogent evidence, which we accept, as to its irrelevance; we say no more of this point. Conclusions 172. At the outset, we should underline that this is not a case where the expert medical evidence and the presence of the “triad” stand alone. We accept of course that Rock was a man of good character and that in general, he had been very good with Heidi. But there was also evidence of some hostility towards her, prior to the events of the 2 June 1998. Perhaps more tellingly, there was the evidence from the neighbour, Ms Banham, that, on the night, she heard Heidi screaming for a significant period of time and Rock shouting at her to “fucking shut up”; then it all went quiet. For completeness, we do not think that the reliability of Ms Banham’s evidence is called into question by the mere fact of there being some unused and untested material from police officers, apparently saying that they could not hear shouting between the two houses. 173. Against that background, we come to the evidence in this case of the presence of the “triad”; namely, encephalopathy, subdural haemorrhages and retinal haemorrhages. There is, moreover, the bruise found at the back of Heidi’s head. 174. How were these injuries caused? Having regard to the evidence we have summarised, it is plain that Rock’s explanation – a fall in which Heidi did not strike her head – cannot account for them. We are, moreover, unable to accept that Rock’s version of events was innocently mistaken, along the lines that he had simply not seen her strike her head. As set out above, he was adamant that he had prevented her hitting her head. We naturally have regard to the burden of proof resting on the Crown throughout. That burden may however be satisfied by reliance on such inferences which it is proper to draw from Heidi’s injuries, taken together with Ms. Banham’s evidence and the absence of an explanation from Rock, with whom Heidi was alone at the relevant time. 175. We turn then to the inferences which it is proper to draw. We do so with great caution, mindful both of the gravity of the matter and that (as already underlined) the mere presence of the “triad” does not automatically or necessarily lead to a diagnosis of NAHI and/or a conclusion of unlawful killing. All the facts of the individual case must be taken into account. 176. Given the assumptions that we have thought it right to make with regard to the disputes between Dr Anslow and Dr Jaspan and between Dr Geddes and Dr Rorke-Adams, encephalopathy does not take the matter further – save for the fact of its presence. The position is, however, very different with regard to subdural haemorrhages and retinal haemorrhages. 177. As has been seen, the presence of subdural haemorrhages was common ground between the relevant experts. It was also indisputable that the subdural haemorrhages preceded the development of brain swelling and that there was no evidence of any increase in subdural bleeding notwithstanding the rise in intracranial pressure following the swelling of the brain. Pausing there, these features would themselves have gone a very long way to undermine the credibility of Geddes III, had that hypothesis not in any event been withdrawn in the manner already described. Matters do not end there. Without Geddes III, Geddes I and II cannot suggest a mechanism to explain the subdural haemorrhages; strikingly, as we have seen, Dr Geddes in her evidence could not explain them. There is accordingly no realistic challenge here to the “traditional” mechanism of the tearing of bridging veins. If so, it necessarily follows that Heidi was subject to a degree of force sufficient to tear those veins. 178. We return to the retinal injuries. On the totality of the evidence, we are sure that these were at the top end of the scale (Dr Gregson and Dr Adams) and we are not deterred from that conclusion by anything said by Professor Luthert, if indeed he ultimately disagreed. We cannot necessarily infer from the severity of those injuries, including the presence of the para-macular folds, that any precise or specific degree of force was used; we are acutely conscious both of “thin skull” cases on the one hand and of “lucky” victims on the other. We have, however, no realistic doubt that the force used must have been – as even Professor Luthert was minded to agree – in excess of anything generated by a reasonable person in the course of rough play. We further have no real doubt that the cause of those injuries was shaking or shaking plus an impact; if anything, we favour the latter given the presence of the bruise at the back of the head. In all the circumstances, we regard as fanciful the notion that Heidi’s retinal injuries can be explained by a fall in which she struck her head and was then the subject of a well-intentioned resuscitative shake (Geddes, first and second scenarios). 179. We have not overlooked the evidence of Dr Plunkett but we are unable to regard it as of assistance in this case. First, there is no proper factual foundation for Dr Plunkett’s evidence; his opinion rests on a version of events relying on Rock’s account of an accidental fall but departing from it so as to account for Heidi striking her head when falling. Secondly, Dr Plunkett’s suggestion that the bruise at the back of Heidi’s head caused her death, lacks credibility. Quite apart from more general considerations as to the relevance of Dr Plunkett’s study to cases such as these (see below, when dealing with Cherry), his thesis here does not begin to address the subdural haemorrhages and retinal injuries. 180. We are accordingly left with a powerful Crown case for unlawful killing, based on the surrounding circumstances (Rock’s shouting on the night), and the nature and severity of Heidi’s injuries (the subdural haemorrhages and retinal damage). All that there is to set against that case is the suggestion of accident, based on a manifestly flawed account from Rock, the one person who could have explained what happened, supplemented by a variety of speculative suggestions from the experts – necessarily lacking a sound factual base. We remind ourselves that our task is not to retry Rock; our inquiry is as to the safety of his conviction. On all the evidence, we are amply satisfied as to the safety of his conviction for unlawful killing. 181. For completeness, we are not deterred from that conclusion by the following matters: i) On behalf of Rock, some play was made with the moderation in language employed by Crown experts between the trial and the appeal; in this regard, as we have seen, considerable emphasis was placed on the alleged “concession” made by Dr Jaspan, an emphasis we have already indicated we regard as misplaced. We think that the submission as to moderation of language is correct as far as it goes; but we do not think it goes very far. Doubtless, as expert thinking has evolved, so, rightly, the language has moderated and become less graphic or emotive. Those are welcome developments. But when the totality of the evidence is considered, there is nothing in any of this to suggest that the safety of Rock’s conviction is undermined. ii) Dr Geddes, as we have seen, was puzzled as to the absence of other injuries, if indeed Heidi had been the subject of violent shaking. We have given this matter anxious consideration but ultimately regard it as decisively outweighed by the overwhelming evidence pointing to a degree of force (or violence) at least going beyond even rough play. There is, as has frequently been urged on us, no precise correlation between force inflicted and the gravity of the injuries suffered. iii) As seen in the passages set out earlier, the Judge summed up in robust terms. On the evidence before him, no proper criticism could be made of those passages. Given the totality of the evidence now before the Court, even though an alteration in expression might have been warranted, we do not think that any change to the substance of the summing-up would have been such so as to undermine the safety of a conviction for unlawful killing on this ground. 182. What remains is whether Rock’s conviction for murder as distinct from manslaughter is safe. In R v Stacey [2001] EWCA Crim 2031 , a “shaking” case, the Court said this: “ 48. Other grounds of appeal having been examined, and in the end abandoned, that leaves only the question of whether the jury was entitled to find that she intended to do really serious harm. We are troubled about that. One brief period of violent shaking by a frustrated mother and child-minder was all that was required to explain this death. Apart from the bruises to the neck, no other injuries were found. As the judge said, an intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter. 49. Even allowing for the jury’s obvious advantage in seeing the appellant give evidence, we have been unable to discern anything which, in our judgment, would have made it safe for the jury to convict this appellant of the more serious charge. In our judgment, the less serious charge was the only safe verdict. If the jury had had the additional benefit of hearing the fresh medical evidence we have heard, they might well have come to the same conclusion.” 183. Stacey was of course a case on its own facts but the reasoning of the Court has, with respect, an undoubted resonance. As already foreshadowed, the Crown’s stance, very fairly, was to accept that a verdict of murder was unlikely ever to be justified on the basis of the “triad” standing alone; it follows that the verdict of murder could be justified here, only, if at all, on the basis of (i) the bruise at the back of the head and (ii) Ms. Banham’s evidence. 184. Elaboration is unnecessary. Those two additional features go in this case to underpin the safety of the conviction as to unlawful killing; but they do not assist on the question of murder or manslaughter. Necessarily therefore the conviction of murder cannot be sustained. We are fortified in reaching this conclusion by a consideration of the additional medical evidence we have heard. A brief period of violence (going beyond even rough play) was all that was required to cause Heidi’s fatal injuries; such violence undoubtedly furnishes the mental element necessary for a conviction of manslaughter; but it does not necessarily demonstrate an intention to cause grievous bodily harm, the relevant intention if the conviction of murder was to be upheld. 185. Accordingly, we set aside Rock’s conviction for murder and substitute a conviction for manslaughter. To this extent only, this appeal is allowed. We shall hear submissions on sentence for the offence of manslaughter. Cherry 186. We again do not repeat the facts of this matter, which have already been set out. It will be recollected that on Cherry’s account, he left the child alone for a matter of minutes downstairs while he went upstairs; when he returned minutes later, she was, as the Judge put it in the summing-up, in a “poor state” on the floor. Essentially the decision for the jury was whether they could be sure that Sarah’s death was caused by an unlawful act on the part of Cherry (a formulation to which we shall return, later) or whether her death was or might have been attributable to an accidental fall from a chair some 6-8 inches high (“the chair”). 187. On this appeal, Mr Mansfield QC’s submissions proceeded as follows: i) The Crown’s position had shifted between trial and appeal; at trial, this was a case of impact; now it was a case of both shaking and impact; but that was not how the matter had been placed before the jury. ii) There was new evidence to the effect that death or serious injury from low level falls could not be ruled out. In addition, there was a possibility that Sarah had aspirated vomit. Death could have resulted from a combination of the two. In any event, if this was a case of both shaking and impact, the innocent combination of an accidental fall followed by a resuscitative shake could not be ruled out. iii) Great care had to be taken in approaching the bruising on Sarah’s head and body, both in the light of the new evidence and the course which the trial had taken. iv) In all the circumstances, the conviction was unsafe. 188. The Crown resists the appeal and contends that nothing has emerged to undermine the safety of the conviction. In a nutshell, the evidence as to low-level falls is inapplicable to a fall of the nature postulated here. Upon analysis, there was no evidence capable of suggesting that aspiration of vomit was a relevant consideration. As to the new evidence, it had all to be taken into account; Cherry could not pick and choose; the introduction of a shaking component did nothing to undermine the safety of the conviction. Evidence of Sarah’s other injuries, properly and fairly considered, lent support to the Crown’s case and suggested that the notion of an accidental fall was fanciful. The new evidence on the appeal 189. We begin with the pathologists. As already observed, Professor Whitwell conducted the post-mortem and was a prosecution witness at the trial; on the appeal, she now gave evidence for Cherry. 190. In her witness statement for the trial, Professor Whitwell attributed Sarah’s injuries and brain damage, taken in conjunction with the scalp bruising (already described), to “direct blunt trauma”. She went on to say this: “The degree of trauma necessary to produce such damage is considerable and the findings are not consistent with a simple fall onto a carpeted surface. They are consistent with the head being forcibly propelled against a hard surface or a blunt object contacting the head. Apart from the brain injuries there are a number of bruises on the body. The sighting of a number of these is highly suggestive of non-accidental injury rather than being caused accidentally – in particular the bruises to the buttock, face, thigh and arm. ” 191. Her report of 2 June 2005, prepared for the appeal, evidences her revised views. She said that the possibility of Sarah suffering a fatal injury as a result of falling from the chair had to be considered afresh in the light of Dr Plunkett’s research. The “primary brain pathology” was due to lack of oxygen; this hypoxic-ischaemic injury could have been caused as a result of primary injury to the brain, causing Sarah to stop breathing and/or as a result of “vomiting with inhalation of vomit into the lungs”. She would “still to some extent be unhappy as regards the scalp bruises arising in a fall but it has to be a considered possibility that Sarah’s head impacted against some other surface as well as the ground”. 192. In her oral evidence at the appeal, she explained that her change of view was based on Dr Plunkett’s work and her own experience. She had not found diffuse axonal injury; such trauma as she found was associated with impact. The need to explain Sarah’s scalp bruising (in two separate locations) led to Professor Whitwell contemplating that Sarah might have struck her head both on the window and then on the ground in the course of her fall; indeed, she later underlined that two impacts were needed to explain this bruising. 193. Professor Whitwell agreed that at post-mortem, there was no evidence of vomit or aspiration. She agreed that Sarah had up to a maximum of 22 bruises; she was “concerned” about that number of bruises. They were probably “more than” fair wear and tear for a 21 month old. In the absence of proper explanation, they were highly suggestive of abuse. There had been no developments in science between the trial and the appeal to alter her view as to the relevance of the two sites of scalp bruising. Her view at the trial (and she was the person who had conducted the post-mortem) was that those two areas of bruising had been caused at about the same time. She had herself identified traumatic injury to the brain. She accepted that the subdural bleeding occurred because of the tearing of bridging veins. 194. Dr Rorke-Adams was firmly of the view that Sarah’s injuries were inconsistent with a fall from the chair; she placed emphasis on the multiple areas of injury and the extent of those injuries. Sarah’s injuries were caused by “trauma”; the “pattern of injury” was characteristic of both shaking and impact; it was a combination of both. Although the degree of injury could not be correlated with the degree of force, considering the injuries as a whole, they must have been caused by “strong force”. 195. Pausing here, it will be apparent that there was agreement between Professor Whitwell and Dr Rorke-Adams: (i) that there had been traumatic injury to the brain; (ii) that there were subdural haemorrhages; (iii) that those haemorrhages had been caused by the tearing of bridging veins. There was some dispute between these two witnesses as to whether further injury to the brain, which it is unnecessary to detail, was also attributable to trauma or was artefactual in origin. Impressed as we were by Dr Rorke-Adams’ evidence in this regard (the coincidence relied upon by Professor Whitwell seemed unlikely), this is another of those areas where we do not think it would be right simply to discount a reputable expert’s contrary views. We therefore proceed with this appeal on the assumption (in favour of Cherry) that the brain damage suffered by Sarah did not extend beyond the areas of agreement between Professor Whitwell and Dr Rorke-Adams, summarised above. 196. We move next to the evidence of Dr Plunkett, which it is helpful to consider here in a little greater detail than in the preceding appeal of Rock. Dr Plunkett said that there was nothing inevitable about a serious injury resulting from a fall from the chair but “the potential for serious injury or even death exists”. The floor surface did not matter; it was immaterial whether it was carpet over concrete or just concrete. 197. Questioned as to his research, Dr Plunkett explained that he had worked from a database for head and neck injuries involving playground equipment, recorded by the United States Consumer Product Safety Commission (“CPSC”). Over 11 ½ years, he had identified 18 fatalities from head and neck injuries involving falls. None of the children (or infants) in his study had formal retinal examinations. These cases included falls from swings, which, he agreed were complex or complicated falls. He further agreed that none of these cases were similar to a shaken baby case. The distance of a fall is said to be measured with reference to the closest part of the body to the ground at the beginning of a fall. 198. Case no. 5 in Dr Plunkett’s study was said to be closest to a fall from a 6-8 inch chair; this was suggested on the basis that the child in question had suffered the equivalent of a 12 inch fall. Dr Plunkett’s paper described this fall as follows: “ A 23 month-old was playing on a plastic gym set in the garage at her home…She had climbed the attached ladder to the top rail above the platform and was straddling the rail, with her feet 0.70 metres (28 inches) above the floor. She lost her balance and fell headfirst onto a 1-cm (3/8 inch) thick piece of plush carpet remnant covering the concrete floor. She struck the carpet first with her outstretched hands, then with the right front side of her forehead, followed by her right shoulder. Her grandmother had been watching …. And videotaped the fall. She cried after the fall but was alert and talking…However, approximately 5 minutes later she vomited and became stuporous…. A CT scan indicated a large right-sided subdural haematoma…. The haematoma was immediately evacuated. She remained comatose postoperatively, developed cerebral oedema with herniation, and was removed from life support 36 hours after the fall…..” Dr Plunkett suggested that, as her head had been some 42 inches above the ground when the fall began and as her body length was some 30 inches, it was equivalent to her falling from a chair 12 inches high. We confess some difficulty with this reasoning but we nonetheless continue with our consideration of Dr Plunkett’s evidence. We do acknowledge that we felt, as indeed Dr Anslow later expressed it, “shocked” that a fall, as captured on the video (which was shown to the Court), could have resulted in a fatality; this, indeed, may be the strength of Dr Plunkett’s evidence, so far as it goes. Nonetheless, it is pertinent to record the following: (i) It transpired, as explained by Dr Plunkett in his oral evidence following the playing of the video, that the rail from which the child fell was in fact 39 inches above the floor, not 28 inches; (ii) she fell a sufficient distance for her to rotate and so as to fall onto her head with some 2/3 of her body weight contributing to the impact; (iii) there was a lucid interval after the fall (unlike the cases before us); (iv) the haematoma was large and lop-sided (again unlike the thin film haematomas encountered in cases such as the present); Dr Plunkett agreed that the mass effect of this haematoma caused the child’s death. Notwithstanding all these factors, Dr Plunkett continued to maintain that the Case 5 fall was “exactly comparable” to a 12 inch fall. The velocity was relevant and what was not known was the “minimal impact velocity” required to cause these types of injuries. 199. Closely cross-examined, Dr Plunkett agreed this: “Q. …your paper does not establish the proposition that any impact, no matter how minor, can lead to fatal consequences, does it? A. That is correct.” After some questioning from the Court, Dr Plunkett acknowledged the common sense proposition that the lesser the distance of the fall, the less likely it was to cause an injury to a vulnerable part of the body. In any event though for a time it seemed that Dr Plunkett was resistant to the suggestion, the distance of a fall is a necessarily relevant consideration. Dr Plunkett’s own formula for impact velocity was as follows: Velocity (V) squared = 2 x Acceleration (A) x Distance (D). From this it must follow that, all other things being equal, a reduction in D will result in a reduced V. 200. Reverting to the individual case of Cherry, Dr Plunkett asserted that the bruising on Sarah’s body amounted to “normal wear and tear”. We observe at once that this answer was manifestly unconvincing. 201. Standing back from Dr Plunkett’s evidence, we do not say that his work does not have utility. As recorded, we were ourselves very surprised by the outcome in case no. 5, as shown on the video. However, we think that it is important to look closely at both the limits of his study and its relevance to any individual case; the true comparability of the falls he studied to the cases before the Court merits careful scrutiny. We return to this theme when indicating our conclusions on the Cherry appeal. 202. Mr Richards gave evidence for the Crown in this case as well. In his opinion, Sarah died as a result of a severe inflicted non-accidental head injury. His oral evidence included the following passage: “Q. You have used the word ‘severe’. Degree of force required in this particular case? A. Far in excess of anything we see in normal life with children of this age. Children are toddling around at this age. They fall over all the time. It they suffered severe head injury from little falls, the casualty departments would be inundated with them, the intensive cares would be full of them, my operating theatres would be operating or dealing with them on a daily basis. I have not seen a child of this age suffer a severe head injury in my 24-year neurosurgical career from a minor injury as described or….as considered. This very short 6-inch fall.” Other than being prepared to accept never to say never, try as Mr Mansfield QC might, Mr Richards did not shift in substance from this answer. 203. We turn next to the issue of aspiration of vomit. Given that, for very good reason to which we shall come, it played an ever diminishing role on the appeal, we shall take it very shortly indeed. 204. Mr Wrightson, a neurosurgeon, whose evidence on behalf of Cherry we heard by way of video-link from New Zealand, said this, in his report for the appeal: “…there is no doubt that Sarah vomited and aspirated material into her lungs. The vomiting was described by Mr. Cherry and was confirmed by those who arrived to help. A chest X-ray later in the day of injury showed ‘widespread airspace shadowing throughout both lungs’. The hypoxia which this would have caused is likely to have resulted in or at least contributed to the gross cerebral swelling that was present. ” In his oral evidence, Mr Wrightson said, early on, that this was “the key to the whole situation”. There was no reason for Cherry to have invented the evidence he gave. As to aspiration, the ambulance personnel described a “bubbly” chest. At the hospital, copious bloodstained fluid came out from the lungs; the chest x-ray and the findings on post-mortem were likewise said to support these conclusions. 205. Under cross-examination, Mr Wrightson agreed that there was no sign of vomit at the scene; that the neighbours who attended (one of whom was a nurse) did not suggest that Sarah had vomited; that one of the paramedics had said that he did not see any signs of vomiting; that, at the post-mortem, no sign of aspiration pneumonia was found. 206. Dr Peters, a consultant paediatric intensivist, was called by the Crown. His impressively clear evidence may be summarised as follows: i) Neurogenic pulmonary oedema (“NPO”) was a condition involving fluid in the lungs as a result of something catastrophic happening to the brain. It is characteristically immediate. The description given by the para-medics was “almost a text-book” description of NPO: “A combination of the noisy chest, with obvious fluid, with pink frothy secretions coming out of the mouth and the child making respiratory effort to overcome this fluid in the chest are all typical. It could read like a text-book description.” ii) At no stage was there any evidence of aspirated vomit. The most relevant evidence was that of Sarah’s appearance at intubation. Had aspiration been a major cause of respiratory failure then, typically, when the tube was placed into the lungs there would be a “welling up” from the chest of whatever was aspirated. No suggestion of aspirated vomit was made by the intensive care staff; to the contrary the fluid seen remained pink and frothy and became more blood-stained as time passed. This was a typical pattern of NPO. Had the fluid been erythromycin (a very common child’s antibiotic which Sarah had been given), Dr Peters would have expected the paediatric staff to recognise the difference between it and blood-staining. iii) To cause respiratory distress suddenly, massive aspiration was necessary. If so, however, it would have been apparent on intubation and subsequent care. Conversely, unless it was massive, it would not be a “credible cause” of this respiratory distress of this severity. 207. The ophthalmic evidence can be disposed of summarily. Dr Gregson, called by the Crown, fairly conceded that the retinal haemorrhages in this case were superficial only and were not typical of those discussed in the other appeals before the Court. They were not typical of shaking. In the circumstances, we do not think that the Crown case derives any support from the retinal haemorrhages. Conversely, however, we were not in any way persuaded that the absence of “typical” retinal haemorrhages somehow assisted Cherry’s case on the appeal. 208. For our part, this being a case where impact as well as shaking is alleged we regard the absence of “typical” retinal haemorrhages as neutral. We say no more of this point. In the event, it is unnecessary to consider the otherwise interesting (sub-) issue as to when the retinal haemorrhages in truth first appeared. 209. Finally in this case we have considered detailed written reports from two experts in biomechanics: Dr Thibault and Dr Bertocci for Cherry and for the Crown respectively. Dr Thibault, whose approach to ‘injury thresholds’ we have described earlier, considered that the forces applied to the head in a 3 foot impact fall onto carpet represented approximately 50,000 radians per second squared, whereas the injury threshold associated with subdural haemorrhage and diffuse axonal haemorrhage were between 8,000 and 12,000 radians per second squared. A 3 foot fall therefore, in Dr Thibault’s view, is well within the physical context in which subdural bleeding and DAI may occur. Dr Thibault identified the primary point of impact to be the occipital region. The cause of subdural bleeding is accepted to be rupture of bridging veins, but such a rupture could occur, in Dr Thibault’s opinion, as a result of the substantial internal rotational forces that arise when a child falls and impacts her head. He concluded that whilst deliberate inflicted injury cannot be ruled out, the injuries were entirely consistent with the mechanics of the speculated accidental fall. 210. Dr Bertocci explained that her habitual starting point when asked to determine whether a given account fits the resulting injuries is to begin with an assessment of any bruising found on the child: ‘bruising represents points of force application and a roadmap to the child’s exposure’ to force. Dr Thibault considered that the two apparently separate sites of impact could be explained by a fall inducing a well-distributed contact load across the occipital region resulting in dynamic in-bending of the skull and contusion to the outer left and right margins of the total contact area. The presence of bruising on two opposite sides of the head indicated to Dr Bertocci two very different lines of force applied from differing directions, and is not consistent with a fall from a chair. Further, Dr Bertocci observed that the size of the scalp bruises at 2.5cm and 3.5cm are much larger than bruises found in children injured through accidents. Finally, Dr Bertocci summarised published research and her own unit’s experiments with an automotive “12 month old” crash test dummy. Her conclusion, which is again in total contrast to that of Dr Thibault, was that a 12 month old falling from a 9 inch vertical position impacting their head on a padded carpet surface would produce head accelerations that are well below published biomechanical injury thresholds. She concluded that Sarah’s injuries are not attributable to a fall from a 9 inch chair. Conclusions 211. As is apparent, encephalopathy and subdural haemorrhages are present in this case. With regard to the latter, there is no dispute here that they were caused by the tearing of bridging veins. Two elements of the “triad” are thus present. For reasons already set out, although there were retinal haemorrhages (the third element of the triad), these are neutral and do not advance the argument of either party on the appeal. 212. Next it is convenient to mention the issue of aspiration of vomit, essentially to dispose of it. We found Dr Peters’ analysis of the evidence on this issue compelling. Mr Wrightson’s views to the contrary do not survive this analysis. We accept Dr Peters’ evidence and dismiss aspiration of vomit as a credible cause or contributory cause of Sarah’s death. 213. We turn to the topic of low-level falls. We have already indicated our general views with regard to Dr Plunkett’s evidence. Having given the matter anxious consideration, we are not persuaded that the postulated fall from the 6-8 inch chair was a credible cause or contributory cause of Sarah’s death. Our reasons are these: i) On any realistic view, the fall here (if fall there was or might have been) was of a very different type and nature from those forming the subject of Dr Plunkett’s study. The factual differences between any fall here and Dr Plunkett’s Case 5 (said to be the closest comparable) are marked indeed, not least with regard to the nature of the subdural bleeding found. ii) Even if the reservations in i) above are put to one side, notwithstanding the extent of Dr Plunkett’s research, there is no example of a 6-8 inch fall, from a static object, causing death or serious injury to a 21 month old child. As he himself agreed in cross-examination (see above), it does not follow from Dr. Plunkett’s study that any impact, no matter how minor, can lead to fatal consequences. iii) Even if (contrary to the above) it was thought that Dr Plunkett’s study did mean that a fall from the chair here was capable of furnishing a realistically possible innocent explanation for Sarah’s death, it remains necessary to address the two separate sites of scalp bruising. Professor Whitwell conducted the post-mortem; as she agreed in her oral evidence, her impression (at least at the time of the trial) was that the two separate areas of scalp bruising had been caused at about the same time. Inevitably and as Professor Whitwell further agreed, no scientific developments since the trial could alter the relevance of these two separate sites of bruising. Accordingly, for the fall to be capable of providing an innocent explanation of these injuries, it was necessary to postulate two impacts (window and floor) in the course of the same fall. As it seems to us, this is pure speculation and stretches credibility altogether too far. iv) We have set out earlier Mr Richards’ observations (i) that if such falls did generate severe injuries, casualty departments and the like would be inundated; but (ii) that in more than 20 years of practice he had never encountered a severe head injury in a child of this age arising from a 6 inch fall. Some caution is necessary in approaching these observations; first, there is no claim that serious injury is the inevitable result of falls of this nature; secondly, “never” is an unfortunate word. Nonetheless, when this evidence based on practical experience is considered cumulatively with reasons i) – iii) above, it furnishes powerful support for the conclusion that the notion of an accidental fall in this case, causing or contributing to Sarah’s death, is simply fanciful. v) We are not swayed from our view by the evidence of biomechanics summarised earlier. This is a complex, developing and (as yet) necessarily uncertain area of scince, as illustrated by the stark divergence of opinion between Dr Bertocci and Dr Thibault. Be that as it may, Dr Thibault’s views are altogether too difficult to reconcile with evidence of primary fact in this case, for the conviction to be regarded as unsafe by reason of the biomechanical evidence. 214. Pulling the threads together, this is a case of a sudden collapse of a 21 month old child. Cherry was alone at home with her. His factual account cannot explain her injuries and death. Upon analysis, the possible explanations advanced on his behalf on the appeal do not carry credibility. The case cannot be one of SIDS, given, as is undisputed, her traumatically caused subdural haemorrhaging. As it seems to us, in the light of those subdural haemorrhages and the separate sites of scalp bruising, the inference can properly be made that her injuries and death were attributable to a combination of shaking and impact. On any realistic view (and in this case we are of course only concerned with a count of manslaughter), the force involved must have been such that the risk of some harm to Sarah would have been foreseeable to all sober and reasonable people. In the circumstances, unless there is anything in the argument as to the shift in the Crown’s case between trial and appeal rendering the conviction unsafe (see below), we are amply satisfied of the safety of Cherry’s conviction for manslaughter. 215. We are fortified in this conclusion by the evidence as to up to 22 bruises on Sarah’s body. As Professor Whitwell was driven to agree, these were highly suggestive of abuse, in the absence of proper explanation of which there was and has been none. In approaching this evidence, we have thought it right to proceed with caution; as the summing-up suggests, at the trial, Cherry was treated as a good stepfather and there had been no suggestion of any improper behaviour towards Sarah or any of the other children. But on the state of the evidence at the trial, there may have been no need for the Crown to explore this wider area. Cherry, having introduced new lines of inquiry on the appeal, cannot, we think, complain at all the evidence being revisited. While even then we would have hesitated long and hard before treating this question of bruising as determinative of the appeal, in this appeal we see no unfairness in taking it into account as an additional reason pointing towards the safety of the conviction. 216. Finally, we turn to Mr Mansfield’s submission that the conviction was unsafe because of the shift in the Crown’s position between trial and appeal; at trial, this had been a case of impact; now it was one of both shaking and impact. Cherry did not have a fair opportunity to deal with the “new” case; nor did the jury consider it. With respect, we cannot agree. 217. First, as a matter of principle and as already foreshadowed in dealing with the evidence of bruising to Sarah’s body, once an appellant has introduced new evidence on the appeal, he can hardly complain if such evidence is answered or rebutted by the Crown. Unavoidably, in such a process, the nature of the case may take on a different hue and there may be some change in the manner in which the Crown puts its case. But it cannot be, that on this ground alone, a conviction must be regarded as unsafe; fresh evidence, once admitted, may serve to confirm, not only to undermine, the safety of a conviction. Accordingly, if on all the evidence before this Court, the only reasonable conclusion is that, considered in the round, the conviction is safe, the Court should give effect to that conclusion: R v Hanratty (Dec’d) [2002] 2 Cr. App. R. 30 , at [101] – [104]. 218. Secondly, however, this principle is qualified by consideration of fact and degree. In an individual case where an issue of this kind arises, it may be that the Crown’s change of position between trial and appeal is such that the conviction cannot be considered safe. Whether it does or not will necessarily depend on the facts of the particular case. Here, we see nothing in the development of the Crown’s case on the appeal that renders Cherry’s conviction unsafe. The essential question for the jury was whether Sarah’s death was accidental or the result of some unlawful act on the part of Cherry. That was the fundamental divide; in this case, given the nature of Cherry’s evidence, the mechanism was necessarily of secondary importance. It is true that the mechanism favoured by the Crown at trial was one of impact. It is further true that on appeal the Crown’s case as to mechanism has evolved to one of a combination of shaking and impact. That evolution, however, cannot have caused Cherry any prejudice. Moreover, any suggestion here that a well-intentioned shake was capable of giving rise to a possible defence depended on the credibility of the explanations we have already dismissed, namely those relating to the low-level fall and/or the aspiration of vomit. 219. In all the circumstances, we are fully satisfied as to the safety of the conviction. This appeal must be dismissed. Faulder Appeal 220. Faulder’s Notice of Appeal relies upon two post-trial developments. Firstly the publication of Geddes I and II which, it is said, provides a basis for questioning the explanations previously advanced for N’s injuries, and, secondly, a judgment given by Mr Justice Eady in a libel case, Reed and Lillee v Newcastle City Council [2002] EWHC 1600 (QBD) in which Dr San Lazaro, a key prosecution expert witness in the Faulder case, had been severely criticised. In addition the Notice of Appeal relies upon a new explanation, the MORO reflex, which might explain N’s sudden movement and subsequent fall from Faulder’s outstretched arm. Finally, the Notice relies upon fresh expert evidence from Professor Whitwell, which calls into question the Crown’s view at trial that this was primarily a shaking injury, her opinion being that there was evidence of a number impacts (which might fit Faulder’s account) and that the primary cause of collapse was likely to be cessation of breathing and consequent brain damage, rather than primary brain damage due to direct trauma. 221. The ‘Statement of Reasons’ supporting the Criminal Cases Review Commission decision in Faulder’s case refers to the trial evidence given by Dr San Lazaro and Dr Alexander to the effect that N’s primary injury was as a result of direct impact between the brain and the skull, which would require massive and violent force comparable to a child being hit by a car travelling at 40 mph. As the Commission’s statement observes, “within this paradigm, Mr Faulder’s explanation is inadequate.” The Commission refers to Geddes I and II and postulates that Faulder’s explanation becomes more plausible if the cause of N’s collapse is cessation of breathing. The Commission concludes that: a) had the jury been aware of the new evidence they might not have been certain that Faulder’s account was untrue; and b) the medical evidence now available provides a possible alternative explanation for N’s injuries and challenges the prosecution case that the injuries must have been caused by shaking. The Injuries 222. In Faulder’s case the injuries and symptoms relating to N that require consideration are: Bruises i) Area of erythema (ill defined flushing of the skin) that was ‘grazed/bruised’ located directly on top of the head; ii) A triangular fresh bruise 2cm by 2cm above the forehead; iii) A 2cm linear bruise on the left side of the head above the ear; iv) A small deep blue bruise over the right forehead; v) A second small deep blue bruise over the right forehead but more centrally sited; vi) Marked swelling over the top of the occipital bone in the midline. Subdural haemorrhage vii) Thin fresh subdural haemorrhage along the falx with a thin layer of subdural blood over the surface of the brain (seen on the first CT scan at 7.44 am on the morning after admission, it remained largely unchanged in subsequent scans); Brain swelling and HII viii) In the first scan (12 hours after the 999 call) there is no significant brain swelling or injury. Subsequent scans over the following three days show developing brain swelling and hypoxic-ischaemic injury in both cerebral hemispheres. 223. It is of note that in Faulder’s case there is no evidence of retinal haemorrhaging or primary brain injury. 224. In the course of Faulder’s appeal we have considered evidence from the following experts on behalf of the appellant: Professor Whitwell, Dr Plunkett and Dr Sunderland. In response the Crown have particularly relied upon evidence from Dr Jaspan, Mr Richards, Professor Jenny, Dr Lawler and Dr Rorke-Adams. Appellant’s Experts 225. For the appellant Professor Whitwell, relying upon the Geddes I and II research, considered that the hypoxic-ischaemic injury to the brain could arise as a result of oxygen starvation caused by a sudden bending and stretching of the nerve tracts in the cranio-cervical region. As N survived, there was obviously no opportunity to use the β APP test for axonal damage to confirm this opinion. In N’s case the damage may have been ischaemic and localised, but the mechanism was the same as in the case of hypoxia. The Professor, who is a pathologist, rightly conceded that in this case, which did not result in death, her expertise did not permit her to comment upon the interpretation of the radiological evidence. 226. Professor Whitwell considered that the findings were all consistent with some form of impact. The injuries to the head indicated a number of impacts, the multiplicity of which gave rise to concern, but in cross examination she also questioned whether all of the external injuries were clearly present at the time of admission, or, in relation to two, arose as a result of therapeutic intervention. She advised that the forces required to produce subdural haemorrhages in a child of this young age are unknown. 227. Dr John Plunkett’s evidence was based upon his own research into young children and low level falls. He drew attention to the fact that the skull of a 7 week old infant differs fundamentally from that of an older infant or adult. A scalp impact to a 7 week old would cause the skull to bend inwards or deform, with a consequent deformation or movement within the brain itself. This movement, Dr Plunkett advised, could cause subdural haemorrhages and functional brain damage, for example breathing difficulties. Both Dr Plunkett and Professor Whitwell accepted that the subdural haemorrhages were assumed to have been caused by tearing of bridging veins. The minimal impact velocity needed to cause these injuries is not known, but as N did not have any skull fracture or brain contusion, Dr Plunkett postulated that the impact velocity was extremely low. In this manner, Dr Plunkett considered that all of N’s injuries could be explained by the account of the fall given by Faulder. Dr Plunkett did not however accept that N had as many as 6 external head injuries believing that there were only three. In particular Dr Plunkett considered that marked swelling seen on the scans was a manifestation of the triangular shaped bruise seen earlier over the top of the occipital bone which, he explained, had migrated to the back of the head by reason of gravity. This explanation and the further explanation proffered by Professor Whitwell that the two forehead bruises were caused during treatment, were rejected by each of the relevant experts for the Crown. In so far as may be necessary we were not persuaded by Dr Plunkett or Professor Whitwell on these issues and, having seen the relevant photographs, scans and medical notes, have no difficulty in finding that there were indeed six separate sites of external head injury as listed above at paragraph 219. 228. Dr Sunderland’s written report to the CCRC introduced the “MORO Reflex” (a recognised automatic response seen in babies under 8 weeks old) as an explanation for N arching his back or throwing his arms out. It was therefore surprising that it was only after a substantial number of questions in cross examination that Dr Sunderland responded to junior counsel for the Crown by saying “I am allowing you to develop your proposition. At some point I must help you. I do not think the MORO reflex is relevant to Faulder. But I am cutting in, you develop your proposition.” We found Dr Sunderland’s contribution in this regard fell short of that which is required by the court from an expert witness. 229. Dr Sunderland, having had Faulder’s detailed account put to him, stated that a baby of N’s age could have behaved in the manner described. 230. Dr Thibault, an expert in biomechanics who was, as we have said, not available to give oral evidence, produced an analysis of the evidence which concluded that Faulder’s account accorded with a biomechanical analysis of the injuries. Dr Thibault’s opinion is however upon the basis that there were only two impacts: one being the linear bruise above the left ear (number (iii) in our list) and the other which caused both of the marks above the right eye (numbers (iv) and (v)). Dr Thibault discounted the swelling on the back of the head (number (vi)) which is only visible on the scan on the basis that if this had been traumatic one would have expected the treating clinicians to have noted it and, further, there is no note of any surface marking at the same location indicating an impact. The report does not consider the area of erythema located directly on top of the head ((i)) or the triangular fresh bruise 2cm by 2cm above the forehead ((ii)), these marks are shown in the photographs, however the photographs were not made available to Dr Thibault. 231. Dr Thibault considered that the linear bruise was consistent with contact with part of the high chair, whereas the two marks on the forehead were consistent with impact on a flat surface, for example the floor. The fall as described by Faulder would, according to Dr Thibault, have been sufficient in magnitude to deform the skull and cause shifting and deformation of the underlying bridging veins and neural tissue thereby producing acute SDH. He also postulated the temporary deformation causing a temporary herniation at the cranio-cervical junction leading to consequent interference with the respiratory system and thereby hypoxic-ischaemic injury. Crown’s Experts 232. For the prosecution Dr Jaspan described the existence of the subdural haemorrhages and the development of what became extensive hypoxic-ischaemic injury in both cerebral hemispheres. He considered that the most substantial impact was that which caused swelling to the right parietal region, with the other bruises resulting from injuries of lesser magnitude. Dr Jaspan, in a balanced report, drew attention to the fact that only four of the eight elements that would normally constitute a diagnostic ‘full house’ for inflicted injury were present in this case, namely: unexplained encephalopathy, scalp bruising, subdural haemorrhages and secondary hypoxic-ischaemic injury. He therefore considered that accidental trauma could not be entirely excluded, but some form of inflicted injury was the most likely cause. 233. Mr Richards, who in his written evidence questioned whether a 7 week old baby would have come to fall in the manner described by Faulder, in oral evidence came to accept that N may have fallen from Faulder’s arm in an ordinary ‘gravity roll’, which did not depend upon any overt momentum from the child himself other than throwing his arms up because he felt unstable. If such a fall took place, Mr Richards would have anticipated a hairline skull fracture or a fractured clavicle. On the other hand, such a fall was unlikely to cause such severe brain substance injury and subdural haemorrhages. He concluded that it was highly likely that N suffered inflicted NAHI. 234. Professor Jenny clearly identified the six external head injuries found on N. Her evidence on this point, which we accept, was confirmed by Dr Lawlor. Professor Jenny’s opinion was that N had sustained multiple blunt injuries to the head which were not accounted for by the history of a fall given by his father. Professor Jenny disagreed with the prosecution experts at trial, who had concentrated upon shaking rather than some form of impact causing the injuries. 235. When considering the triad as a diagnostic tool Professor Jenny regarded the presence of characteristic retinal haemorrhaging as being particularly important in identifying shaking as the mechanism of trauma. She explained that “you really have difficulty diagnosing Shaken Baby Syndrome, as opposed to abusive head trauma, if you do not have those retinal haemorrhages, because they seem to be very characteristic of that particular biomechanical event”. 236. Dr Rorke-Adams’ conclusion was to the same effect, namely that N was subjected to blunt force trauma to the head. She too expressly disagreed with the crown’s experts at trial. Dr Rorke-Adams considered that there was discordance between Faulder’s account and the severity of the injuries to N. 237. Dr Rorke-Adams, relying firstly upon her interpretation of the CT scans and secondly upon the fact that N experienced a left-sided paralysis after the incident, considered that the primary injury was to the right side of the brain, and therefore was focussed on a particular location rather than being diffuse and evenly distributed throughout the brain. Dr Rorke-Adams was the only witness to put forward this interpretation of the evidence. As a pathologist Dr Rorke-Adams was at a similar disadvantage to Professor Whitwell in this case. Equally, Dr Rorke-Adams is not a radiologist. Dr Jaspan in a very thorough report on the series of scans does not identify any particular difference in presentation between the two sides of the brain. We are therefore cautious about placing undue weight about Dr Rorke-Adams’s conclusion that there was a focal (as opposed to a diffuse) brain injury. 238. Dr Rorke-Adams conclusion in favour of a focal injury to one part of the brain is the main reason for her dismissing Professor Whitwell’s proposition that the brain injury may be secondary to a stretching injury at the cranio-cervical junction. Given our caution about Dr Rorke-Adams’ view on this point, it follows that we do not feel able to dismiss Professor Whitwell’s opinion on that basis as being untenable. 239. The prosecution expert on biomechanics, Dr Bertocci, due to the short notice available to her, did not make observations about this case. Changes in the Crown’s Case 240. The appellant asserts that the Crown’s case against him at trial has now been changed in three significant respects relating to (1) his account of the fall, (2) whether there was a primary injury to the brain itself and (3) whether the injury was caused by shaking or impact. (1) The appellant’s account of the fall 241. The appellant has consistently given an account of N’s fall from his outstretched arm to the effect that N’s head was cupped in his hand and N’s body ran along his forearm. At some stage N arched his back, slipped off the arm and fell, catching his back on a push-chair and his head on the bar of a high-chair before hitting the floor headfirst. At trial, Dr San Lazaro did not accept that a 7 week old child could make sufficient jerking, arching or rolling movement to propel itself from a carer’s arm. That was also the position of a number of the Crown’s experts on paper at the start of this appeal. During oral evidence, as we have already noted, Mr Richards came to accept that N may have fallen in the manner described by Faulder simply as a result of a gravity roll from his insecure position lying along Faulder’s arm. It follows that the prosecution expert testimony is no longer entirely at odds with Faulder’s account on this point. (2) Causation of brain injury 242. At trial, Dr Alexander considered that the fall described by Faulder bore no relationship to the severity of the brain injury. His opinion was that the subdural haemorrhages and brain injury were the result of shaking and were the sort of injuries seen “in older children who have been hit by a car at 40 mph, spun round and eventually hit the floor”. He described the mechanism for the brain injury by imagining that the brain was similar in substance to porridge, with the shaking causing the brain to accelerate and decelerate many times causing a spinning effect which was “just like putting a food mixer inside the brain.” He further postulated that the trauma to the brain may have interfered with breathing, thereby causing further brain damage. Dr San Lazaro, at trial, explained that only “very severe forces” or “severe massive deceleration forces” would account for the brain injuries which were caused by “violent shaking and slamming down”. In the CCRC report for this appeal, Dr Lazaro and Dr Alexander are quoted as stating in letters written to the CCRC in 2001 that N’s injuries included “brain contusions”. 243. At trial, Dr Gholkal, a consultant radiologist, did not positively identify any primary brain injury. 244. Before us, with the exception of Dr Rorke-Adams, whose opinion relating to a localised focal brain injury we have already described, none of the Crown’s experts suggested that there was evidence of direct trauma to the brain. Dr Jaspan identifies secondary hypoxic-ischaemic injury and asserts that there is no evidence of primary brain injury or brain contusions. 245. N survived these events and thus the only direct evidence of the condition of his brain is radiological. Given the careful and clear evidence of the prosecution radiologist, Dr Jaspan, on this point we consider that the opinion of both Dr San Lazaro and Dr Alexander that there was primary brain injury is not tenable. Shaking or Impact 246. At trial both Dr Alexander and Dr San Lazaro advised that these injuries were caused by very severe shaking. We have already observed that a number of the Crown’s experts on appeal have expressly disagreed with this conclusion. They regard this as a case of N being the victim of a number of blunt impact blows to the head. 247. This significant change in the case being put against Faulder is of consequence in at least two respects. Firstly, he has never been required to consider, and neither was the jury required to consider, the allegation that he hit N at least 5 or 6 times around the head. Secondly, the degree and type of force now relied upon must differ from the “hit by a car at 40 mph” description put forward at trial. 248. Whilst we note that the judge in describing the central issue in the case to the jury focused upon the defendant’s intention (“did the defendant deliberately injure the child?”) rather than upon any particular mechanism for injury. The expert evidence presented to the jury was that the severity of primary brain injury could not be explained by Faulder’s account. Before us the position is different in that the injury to the brain substance is broadly accepted to be secondary hypoxic-ischaemic injury. The primary injuries being the external bruising and swelling, the subdural haemorrhages and unexplained encephalopathy (brain failure). Whilst Faulder’s account is not accepted by the Crown, it is nevertheless an account of a series of impacts and is therefore significantly closer to the case now put by the Crown than was the position at the trial. 249. An essential question raised in Faulder’s appeal is therefore what effect, if any, this change of mechanism and force has upon the central issue of the defendant’s intention. 250. In summary the prosecution’s position at the conclusion of the appeal differed from the Crown case at trial in the following material respects: a) Faulder’s account of N falling from his outstretched arm is now accepted as a possible event; b) The brain injury is now seen to be a secondary hypoxic-ischaemia rather than as a result of primary intra-cranial trauma; c) The mechanism for injury is now stated to be a number of blunt force impacts to the head, rather than the massive violent shaking mechanism put forward at trial. Dr San Lazaro 251. The Amended Grounds of Appeal rely in part upon the fact that Dr San Lazaro’s credibility and impartiality have subsequently been seriously challenged in the case of Lilley and Reed v Newcastle City Council (above). It is indeed the case that Mr Justice Eady considered Dr San Lazaro’s role in a substantial child sexual abuse investigation and, having heard her give evidence, found that, in order to meet what she perceived to be the needs of the children she examined, she was prepared to throw “objectivity and scientific rigour to the winds in a highly emotional misrepresentation of the facts”. She was, according to Eady J’s findings, “unbalanced, obsessive and lacking in judgment”. 252. In the event this point was not raised in the appellant’s Skeleton Argument filed at the start of the appeal hearing and did not feature in the written closing submissions. Mr Mansfield QC told us that he was effectively not relying upon this ground in support of Faulder’s appeal. We consider that this was a realistic concession. There is no challenge to the primary evidence of fact given by Dr San Lazaro. If Dr San Lazaro had remained the leading Crown expert in the case, there might well have been some concern arising from Eady J’s findings, however the wealth of medical evidence that has now been acquired indicates that even were her evidence to be totally ignored there is a substantial body of expert opinion that supports the Crown’s case as it is now cast. Overview of Faulder’s case 253. We now seek to draw together the various central issues in Faulder’s appeal. Before doing so, it is helpful to highlight the fact that there are now no less than five different explanations for N’s injuries that have been put forward by experts either at trial or on appeal, they are: a) Shaking and slamming down involving very severe force (Dr San Lazaro and Dr Alexander at trial); b) Non-specific inflicted head injury (Dr Jaspan and Mr Richards) involving secondary, but not primary, brain injury (Dr Jaspan); c) Multiple (at least six) blows to the head (Professor Jenny and Dr Rorke-Adams) causing primary localised brain injury (Dr Rorke-Adams); d) A bending and stretching injury to the respiratory nerves in the cranio-cervical junction causing a secondary brain damage. On the basis that the minimum degree of force required to cause subdural haemorrhages is unknown, all the symptoms could have been caused in the fall described by Faulder (Professor Whitwell); e) A blow to the skull during the fall from Faulder’s arm, causing the baby’s skull temporarily to deform and directly injure the underlying brain substance, which may then hinder respiration and cause secondary brain damage (Dr Plunkett). 254. On the evidence that is now before the court, there is unanimity that what occurred was primarily an impact injury. The central questions remaining are: i) What is the minimum degree of force required to cause these injuries? and ii) Might the injuries have been incurred by a fall as described by Faulder? 255. For the reasons that we have already given, we conclude that there were six separate sites of injury found on N’s head when he was examined at hospital. This is an important finding as whilst three or possibly four impacts could conceivable fit with Mr Faulder’s account, it is not possible to stretch the sequence of events he describes to explain all six injuries. 256. Coming to a conclusion about the external head injuries is, however, a very much more straightforward task compared to consideration of the internal injuries. Having heard all of the evidence we are not in a position to reject Professor Whitwell’s opinion that the key event was a nerve injury at the cranio-cervical junction. That opinion is based on the Geddes I and II research, which has been largely accepted by the scientific community. If that opinion is correct, then the severity of the brain injury does not arise from the degree of force used, but from the extent to which the brain is starved of oxygen and/or blood. Questions of degree of force, on the Whitwell basis, are confined to the minimum force needed (a) to cause the cranio cervical junction nerve damage and (b) the subdural haemorrhage. 257. We have already expressed our overall conclusions upon the necessary degree of force in triad cases by stating four general propositions (paragraphs 72 – 80). Applying those propositions to Faulder’s case we are therefore mindful that there will be rare cases where comparatively minor falls may generate serious injuries and that an infant may be particularly vulnerable to injury at the site of the craniocervical junction as postulated by Professor Whitwell in this case. 258. In not rejecting Professor Whitwell’s opinion, we have particularly borne in mind Dr Jaspan’s cautious analysis (“an unequivocal stance cannot be taken”). Dr Jaspan considered that only four of a possible eight signs for NAHI were present. We would add that of those four, only two are direct evidence of a primary event involving force (scalp bruising and subdural haemmorhage) whereas the other two are, or could be, secondary consequences of the primary event (unexplained encephalopathy and secondary hypoixic-ischaemic injury). 259. There are no retinal haemorrhages in this case. On Professor Jenny’s evidence, that would be a cause for concern were the Crown’s case to have remained one of pure shaking, but is a lesser matter of note in the context of an impact injury. 260. We have already considered Dr Plunkett’s evidence in relation to the appeals of Rock and Cherry (in particular we summarise our view at paragraph 201). It is, as we have said, important to look closely at the relevance of Dr Plunkett’s research to each individual case. In relation to Faulder’s appeal we are troubled by Dr Plunkett declining to accept that N had more than three sites of injury. Our approach has been to evaluate each case by considering all of the symptoms as a whole, as well as individually. Dr Plunkett’s inability to include and account for the six sites of injury must devalue, but not eliminate, the importance of his evidence in this particular case. 261. The jury were directed to treat Faulder as a man of good character and that is a factor that we too bear in mind. We also have particular regard to the fact that, unlike the Crown case, his account of the key event has been consistent throughout. 262. If the number of external marks of impact had been four or less we would have little hesitation in holding that there is sufficient within the evidence of Professor Whitwell, when set against the conflicting and contradictory evidence that has, when looked at as a whole, been presented by the Crown, to render this conviction unsafe. 263. We have approached each of these cases by attempting to look at the evidence as a whole. Do the two or three external marks that fall outside Mr Faulder’s account tip the balance in favour of dismissing the appeal? 264. In considering this question we are conscious of the fact that this was not a matter that the jury were ever asked to contemplate in this case. In the same regard we consider it is relevant to question how fair it is for the Crown to change its case so radically from “very severe shaking” to “at least six blows to the head” in an attempt to uphold the conviction. 265. In conclusion we are struck in this appeal by the very radical change in the Crown case; the jury considered one case, shaking, yet that case is now rejected and we have been asked to consider a totally different allegation of multiple blows to the head. During the summing up at trial the jury were told that Dr San Lazaro was “very, very experienced” and “specialises in child protection and abuse” cases. They were also reminded that Dr San Lazaro had said “I am as certain as you can be in medicine” in her opinion that this was a shaking injury. This “certain” opinion from the Crown’s principal witness is now rejected by Crown experts who are equally firm in their own opinion. We have to consider the evidence in its totality, both at trial and before us. There are, as we have observed, now five different explanations put forward by experts for N’s injuries. 266. In relation to Cherry’s appeal we have stressed that the mere fact that there has been some change in the manner in which the Crown puts its case will not automatically lead to a conclusion that the conviction is unsafe. It will be a matter of fact and degree to be considered in each individual case. In contrast to Cherry’s case, the turnaround in the Crown’s case in Faulder could hardly be more substantial. This factor, coupled with the introduction of potentially credible alternative explanations presented by the defence experts, drives us to the conclusion that, despite the number of bruises found, this conviction must now be considered unsafe. We therefore allow the appeal and quash the conviction. Final Comments 267. In earlier sections of this judgment we have made comments on the triad of injuries, the “unified hypothesis” – Geddes I, II, III, and some general issues. We do not think it possible or desirable to add anything further to those observations. In our judgment, these appeals demonstrate that cases of alleged NAHI are fact-specific and will be determined on their individual facts. 268. We have been asked by Mr Horwell to give some guidance in respect of expert witnesses in cases such as these. In his final submissions Mr Horwell submitted that these appeals demonstrated that there had been a significant failure within the criminal justice system to control and manage expert evidence. He argued that there must be a change in approach and invited the court to consider giving guidance. 269. Whether or not there has been a failure by the criminal justice system to control and manage expert evidence we are reluctant to give any new guidance on expert evidence arising from the facts of these cases. It may, however, be helpful to re-iterate current guidance. 270. As to expert evidence generally, the evidential rules as to admissibility are clear (see for example R v Bonython [1984] 38 SASR 45 and R v Clarke (RL) [1995] 2 Cr. App. R. 425 (facial mapping)). We see no reason for special rules where medical experts are involved. There is no single test which can provide a threshold for admissibility in all cases. As Clarke demonstrates developments in scientific thinking and techniques should not be kept from the Court. Further, in our judgment, developments in scientific thinking should not be kept from the Court, simply because they remain at the stage of a hypothesis. Obviously, it is of the first importance that the true status of the expert’s evidence is frankly indicated to the court. 271. It may be helpful for judges, practitioners and experts to be reminded of the obligations of an expert witness summarised by Cresswell J in the Ikerian Reefer [1993] 2 Lloyds Rep. 68 at p 81. Cresswell J pointed out amongst other factors the following, which we summarise as follows: (1) Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. (2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate. (3) An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions. (4) An expert should make it clear when a particular question or issue falls outside his expertise. (5) If an expert’s opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one. (6) If after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court. 272. Wall J, as he then was, sitting in the Family Division also gave helpful guidance for experts giving evidence involving children (see Re AB (Child Abuse: Expert Witnesses) 1995 1 FLR 181 ). Wall J pointed out that there will be cases in which there is a genuine disagreement on a scientific or medical issue, or where it is necessary for a party to advance a particular hypothesis to explain a given set of facts. He added (see page 192): “Where that occurs, the jury will have to resolve the issue which is raised. Two points must be made. In my view, the expert who advances such a hypothesis owes a very heavy duty to explain to the court that what he is advancing is a hypothesis, that it is controversial (if it is) and placed before the court all material which contradicts the hypothesis. Secondly, he must make all his material available to the other experts in the case. It is the common experience of the courts that the better the experts the more limited their areas of disagreement, and in the forensic context of a contested case relating to children, the objective of the lawyers and the experts should always be to limit the ambit of disagreement on medical issues to the minimum.” We have substituted the word jury for judge in the above passage. 273. In our judgment the guidance given by both Cresswell J and Wall J are very relevant to criminal proceedings and should be kept well in mind by both prosecution and defence. The new Criminal Procedure Rules provide wide powers of case management to the Court. Rule 24 and Paragraph 15 of the Plea and Case Management form make provision for experts to consult together and, if possible, agree points of agreement or disagreement with a summary of reasons. In cases involving allegations of child abuse the judge should be prepared to give directions in respect of expert evidence taking into account the guidance to which we have just referred. If this guidance is borne in mind and the directions made are clear and adhered to, it ought to be possible to narrow the areas of dispute before trial and limit the volume of expert evidence which the jury will have to consider. 274. We see nothing new in the above observations. 275. Lastly, we wish to express our gratitude to all counsel, solicitors and the many expert witnesses for the prodigious amount of work and time which they have given to these appeals. Cases of this sort raise difficult and complex medical issues. The Court is very dependent upon the skill of the advocates and the ability of the witnesses to elucidate the evidence and inform the court on the issues involved. We have received enormous assistance from all concerned and pay tribute to their efforts.

```yaml citation: '[2005] EWCA Crim 1980' date: '2005-07-21' judges: - LORD JUSTICE GAGE ```

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. Neutral Citation No. [2024] EWCA Crim 116 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202302604/A3 Royal Courts of Justice Strand London WC2A 2LL Friday 26 January 2024 Before: LORD JUSTICE DINGEMANS MR JUSTICE GRIFFITHS HER HONOUR JUDGE ANGELA RAFFERTY KC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX V SAMUEL RICHFIELD Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _______ MR J POLNAY appeared on behalf of the Attorney General. MR S DYBLE appeared on behalf of the Offender. _____ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of a Reference by His Majesty’s Solicitor General for leave to refer sentences to this Court, which the Solicitor General considers to be unduly lenient. On 18 May 2023, at what was then a pre-trial and preparation hearing, Mr Richfield, who is the respondent to this application, pleaded guilty to one indictment, to putting a person in fear of violence by harassment, contrary to section 4(1) of the Protection from Harassment Act 1997. Those offences occurred between August and October 2021. 2. On the same occasion, he pleaded guilty to another indictment, which contained counts for arson being reckless as to whether life was endangered, contrary to sections 1, 2 and 3 of the Criminal Damage Act 1971, four counts of assault on an emergency worker, contrary to section 39 of the Criminal Justice Act 1988 and section 1 of the Assault on Emergency Workers Offences Act 2018, possessing a controlled drug of Class A, contrary to section 5(2) of the Misuse of Drugs Act 1971. Those matters occurred on 24 February 2022. On 5 July 2023, he was sentenced to a community order for 3 years with a 40-day rehabilitation activity requirement and a 12 months’ mental health treatment requirement, on each count to run concurrently. A restraining order was imposed prohibiting direct or indirect contact with the complainant (whose name it is not necessary to give) in relation to the harassment matter. Although Mr Richfield had pleaded guilty at the pre-trial preparation hearing, it was common ground that in the particular circumstances of his case, he was entitled to full credit of a third for a plea, this was because there were psychiatric reports being obtained about his fitness to plead for reasons that we will come to later. 3. It is submitted on behalf of the Solicitor General that the sentence imposed on Mr Richfield is unduly lenient. The judge was wrong to ignore the sentencing guidelines and also to give credit to Mr Richfield for self-induced drug psychosis, which was affecting him at the time of the commission of these offences. It is submitted on behalf of Mr Richfield that a proper aim of sentencing is rehabilitation. Mr Richfield had been drug free, which had part caused his mental disorders, and responded well to supervision which had been imposed for another offence before the sentencing exercise in this matter, and that this was a proper reason for showing that it was in the interests of justice not to follow the sentencing guidelines which cover this sentence. We are very grateful to Mr Polnay and Mr Dyble, for their helpful written and oral submissions, and we will grant leave for the Reference. 4. The respondent, Mr Richfield, is 31 years old. He was born on 20 April 1992. He had a difficult childhood and was diagnosed with ADHD. He took cannabis from the age of 13 and he was then permanently excluded from school. It was apparent from the psychiatric reports that we have seen from Dr Deo that he has intelligence, as well as a charisma. There were reports from Dr Deo which were produced for the purposes of the sentencing. There has been a subsequent report produced in December 2023 since the sentencing exercise, and we will come on to the circumstances giving rise to that. Harassment 5. It is necessary to set out the circumstances of the harassment offence. Mr Richfield had been in a relationship with the complainant between 2018 and 2020. It broke down due to Mr Richfield’s behaviour. On 18 August 2021, he was arrested and interviewed in relation to alleged offences. He was released on police bail with a condition not to contact the complainant. On 21 August 2021, the complainant became aware of a video which Mr Richfield had published on his TikTok account. He was shown dressed all in black, setting fire to various items and watching them burn. The video’s caption was: “Bitch, you should have known I was coming”. On 3 October 2021, in the early hours of the morning he emailed the complainant saying: “You beautiful, lovely angel. I want to marry you. Do you remember our first amazing kiss? See you soon and if you’re like no way I’m sorry I’ve leave you be.” He then sent further emails on 22 January 2022 to the complainant’s new partner, telling him to stay away and that the complainant was bad news. Then he published a live stream during which he made various derogatory and seriously derogatory comments about the complainant and her family. He also published another video on TikTok which said: “You all saw the video I sent was really powerful but true.” He accused the complainant of lying about various matters. 6. The complainant produced a victim personal statement which emphasised the effect of the offending on her. She said it was frequently in her thoughts. She had night terrors and trouble sleeping. She had to plan movements and avoid certain places. She had been thrown off balance by seeing him in the street by chance, which had triggered an extreme reaction which had overwhelmed her, and she had ended up in hospital for several days after taking an overdose. The rest of the victim personal statement shows the very serious effect of the offending on the complainant. 7. The second indictment concerns the arson, the assaults on the emergency workers and the possession of cocaine. On the night of 23 and 24 February 2022, Mr Richfield was a guest at a hotel in Colchester and at about 2.05 am in the morning he deliberately set fire to his room. A fire investigation showed that there were three points of ignition, two points on the bed, and rubbish had been set on fire. The fire had spread to a towel, carpet and the bottom of the entrance door. The fire alarm had sounded automatically triggering the sprinkler system. The impact of the fire was significantly reduced by the activation of that system, but a sprinkler system itself causes damage to the hotel. The whole hotel was evacuated and the information before us suggests there were about 50 guests present. Mr Richfield went on to climb onto the roof of the hotel and then began to throw tiles onto the ground below. He then fell off the roof and broke his femur. Overall, the damage was about £42,000 and there was business interruption loss of some £18,000. 8. Mr Richfield’s room was described as totally gutted by fire, although Mr Dyble has pointed out that not the whole room was destroyed. We have seen photographs and can make our own assessment about that, which does show extensive damage but not a complete gutting. Whilst the fire had not spread from the room, there was water damage to the room below and police and paramedics attended. It was while those police and paramedics attended that Mr Richfield assaulted a paramedic, Nicole Soames, who was attempting to treat him, and he twisted her collar and kicked her in the chest. She suffered reddening to the neck, and we have seen the photographs. Ms Soames reported that her anxiety had gone through the roof. Working at night had been very difficult for her and got her stressed and anxious. 9. Mr Richfield told police, “Just kill me. I know you’re going to light me on fire”. It is right to report that he was in the middle of a psychotic episode, to which we will return later. He kicked at PC Tidmarsh with his right leg and caught her in her abdomen and said: “That little bitch”. He spat in the face of PC Robertson, who was wearing glasses and he spat in the face of PC Polly. The spittle, which contained blood, went into her eye and she required a drug test in hospital. 10. In due course, Mr Richfield’s hotel room was searched, and a small amount of cocaine was found. He was arrested and was compulsory detained in a mental hospital. 11. A report was obtained from Dr Deo, a consultant forensic psychologist. Dr Deo reported that Mr Richfield believed he had experienced drug-induced psychosis in the past and he had been the subject of two compulsory hospital admissions, in August 2021 and February 2022, after this offence, so far as the second admission was concerned. Dr Deo said that Mr Richfield was highly likely to have been experiencing acute psychotic symptoms at the time of the commission of the alleged offences, noting his previous diagnosis of psychotic episodes, which appeared to be related to drug use, and that Dr Mundempilly described him as having suffered from a drug-induced psychosis, with a long-standing history of illicit drug use including the use of cannabis, cocaine and various other drugs. Dr Deo concluded: “Given the information available to me, it is likely that the offences occurred in the context of voluntary intoxication with illicit drugs. This led to his developing a psychotic episode which impacted upon his actions at the material times. The psychotic episode was a transient psychotic state which did not endure. If his use of illicit drugs did materially alter his mental state, he was in my opinion capable of curtailing such use. He would have been aware of the risks associated with drug use, ie that there was the potential to alter his mental state.” 12. Dr Deo concluded that the alleged offences occurred as a result of intoxication deriving from voluntary substance misuse. There seems to be an absence of evidence to suggest that he has an enduring mental illness. 13. Dr Deo said: “I make no formal mental health recommendations. In the instance that this man pleads guilty or is found guilty at a later date, he would most likely benefit from interventions aimed at helping him abstain from the use of illicit substances, as these have clearly been shown to be detrimental to his mental health, and increase his chance of engaging in risky behaviours/potential offending.” 14. A pre-sentence report was obtained which assessed Mr Richfield as posing a low risk of reconviction and a low risk of serious recidivism. However, his risk of causing serious harm to the public was assessed as high. It was noted that he had made good progress on his suspended sentence for dangerous driving. We will come back to that. It was recorded that he had complied with his current sentence date, attended as instructed 33 appointments out of 37 offered, completed nine of his 20 rehabilitation activity requirement dates by engaging with a personal well-being forward service and an employment and training service. He had expressed a willingness to engage with supervision and work with a partnership. 15. The probation officer assessed Mr Richfield’s risk as manageable and recommended a community order. There were character references that were also placed before the court. The sentencing 16. At the adjourned pre-trial preliminary hearing, after his plea of guilty, the sentence was adjourned for the reports to be obtained and he was sentenced on 5 July. The judge found that the arson offence fell within category 2B of the Sentencing Guidelines, with a starting point of 4 years and a range of 4 to 10 years. The harassment offence fell within category 1B, with a starting point of 2½ years and a range of 1 to 4 years. The judge then said: “Bearing in mind totality, which I must, I can’t just keep adding on years for you, I need to take a step back and look at the overall proportionate sentence that would be fair for you, and it seems to me that I am coming just about over, or just about within suspended sentence territory. However, a suspended sentence means the maximum supervision you can have in the community is up to two years, and it seems to me that you need more than that, and a longer period of supervision.” 17. The judge considered that this was a case where custody should not be imposed as a community order could provide sufficient restriction on liberty by way of punishment while addressing rehabilitation. The judge also considered that a community order was the best way of ensuring there was no reoccurrence of offending behaviour. Accordingly, the judge imposed a community order. Events after sentencing 18. Since the imposition of that sentence, the information now available to the court shows that in fact Mr Richfield refused to take a drug test in August 2023, so literally a month after the sentencing, and then failed a second drug test in August 2023. He had obtained work, but he had started to argue with a manager, and it is impossible, on the information before us, to say whether this was a justified argument or occurred because Mr Richfield was in the process of developing another psychosis because of his drug use. He then spiralled downhill. He was arrested for further offences, and we have been told this morning, they related to malicious communication with a person other than the complainant. Guidelines 19. So far as is relevant, the Sentencing Act requires judges to follow any relevant offence specific guideline unless it is in the interests of justice not to do so. So far as the arson offence is concerned, there was an argument before us today on behalf of the Solicitor General, to the effect that this fell within category 1 rather than category 2 as the judge had found, and it was submitted that it fell within category 1 on the basis of a high risk of very serious physical and/or psychological harm, because the fire was started in the middle of an occupied hotel. The judge had found a significant risk of serious physical and/or psychological harm. Mr Dyble has pointed to the absence of any relevant evidence on risk from fire investigation experts. It is sufficient to say that, in our judgment, the judge’s assessment of category was correct and that this was a category 2 offence, on the basis that there was a significant value of damage caused and that there was a significant risk of serious physical and/or psychological harm, opposed to a high risk of very serious physical or psychological harm. A category 2B offence has a starting point of 4 years with a category range of 2 to 6 years. 20. In our judgment, there were aggravating factors present which were the fact that this was the setting of the fire in an occupied hotel put multiple lives at risk, and we do not need a fire safety report to make that common sense conclusion from setting the fire in an occupied hotel in the early hours of the morning. It is true, as Mr Dyble pointed out, that Mr Richfield went onto the roof and woke everyone up by starting to throw the tiles from the roof. 21. So far as the harassment is concerned, it was common ground that this was a 1B offence with a starting point of 2 years 6 months and, as we have already indicated, a range of 1 to 4 years. We have also seen the assaulting emergency worker guidelines which refer to high-level community orders but go on to deal with other matters. This reference 22. We turn then to deal with the issues raised on the Reference. The first question is whether the judge was entitled not to follow the Sentencing Guidelines because it was in the interests of justice to rehabilitate Mr Richfield. A difficulty that Mr Richfield has with this submission is that the judge did not in fact say that she was not following the Sentencing Guidelines or spell out why it would have been in the interests of justice not to follow those sentencing guidelines. In our judgment, it was in the interests of justice to apply the Sentencing Guidelines. The Sentencing Guidelines reflect the harm done to many others by the offending behaviour that Mr Richfield carried out. 23. Further, it is apparent from the sentencing remarks that the judge did give credit for the mental disorder which was suffered by Mr Richfield at the material time, although the judge also said at paragraph 19E of the sentencing remarks: “At the time that you were admitted to the mental health hospital on the 26th of February [and that was just after the offence] you were assessed as acutely psychotic, and it was thought unlikely to have understood the consequences of your actions. But this was, it must not be forgotten, a drug induced psychosis. Had you not been instilling yourself with nasty, illegal substances, it would never have been as bad as this. So, to some extent you have to take responsibility for what’s happened.” 24. So far as the relevant guideline is concerned for sentencing offenders with mental disorders, developmental disorder or neurological impairments at paragraph 9-15 the courts are required to assess culpability and it is noticed that culpability may be reduced if an offender was, at the time of the offence, suffering from an impairment or disorder. The reason that the guideline is in terms of “ may ” rather than will is because there are circumstances where illnesses will occur because of self-induced psychosis. In the Attorney General’s Reference (R v Scott) [2018] EWCA Crim 1336; [2018] 2 Cr App R(S) 37, at paragraph 26, the Court then said: “We next turn to consider the mitigation. Mental disorder can be a factor which lowers an offender’s degree of culpability. However, the evidence in this case showed that the offender’s state was an acute drug-induced psychosis as a result of voluntary consumption of unlawful drugs. In these circumstances, where an offender’s state arises as a result of voluntary abuse of drugs, little or no weight should be attached to this factor. It cannot significantly diminish the offender’s culpability.” 25. In our judgment, the judge was wrong to have given what must have been the very substantial reductions that she did to take account of Mr Richfield’s own drug induced psychotic state. 26. In these circumstances, we turn then back to consider the Solicitor General’s overarching submission which is that the sentence was simply too low. We agree. In our judgment, if arson is treated as the lead offence and a starting point of 4 years is taken in accordance with the guidelines, there is the aggravating feature in relation to the number of people exposed to risk but there is mitigation available to Mr Richfield. He had attempted to stay drug free. He had complied with the supervision which had been ordered on him, in relation to an offence of dangerous driving, which had been committed on 22 June 2022, and he had been sentenced for that for a period of 6 months’ imprisonment suspended for 18 months. There was a real attempt to comply with the terms of the community work that he had been directed to do in terms of rehabilitation activity requirements. It seems to us that aggravating and mitigating factors might be considered to balance themselves out. 27. Turning then to the offence in relation to harassment, in our judgment, the same applies. A starting point of 2½ years after balancing out aggravation and mitigation remains the end of point of 2½ years and, for the assaults on the emergency workers, in our judgment, an appropriate sentence would have been a consecutive sentence of 6 months for the assaults on the emergency workers (there were four separate assaults) which were made concurrent with each other. That would give you a sentence of 4 years, 2½ years and 6 months (7 years) before issues of totality were addressed. These have to be addressed because, as the judge pointed out, you simply cannot continue just adding the matters together. 28. Having regard to the need to keep this sentence proportionate, in our judgment, the total sentence before discount for plea for mitigation would be one of 5 years (some 60 months). Given that Mr Richfield was entitled to full credit for a third for his plea, that would mean a sentence of 40 months, which was 3 years 4 months. So for all those reasons, we allow the Reference, and we will impose a sentence of 3 years 4 months in relation to the arson count, and then we will impose concurrent sentences of 2½ years in relation to the harassment offence, and 6 months in relation to the assaults on the emergency workers, giving an overall sentence of 3 years 4 months. We will impose no separate penalty in relation to the drug matters. It is apparent, from all the evidence that we have seen, that Mr Richfield has the capability of becoming a useful member of society, and that was what the judge was attempting to achieve with her sentence. As it turned out, this failed as appears from paragraph 18 above. It does mean that Mr Richfield now has the opportunity, in prison, of completing the education that he denied himself by being excluded from school. 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 116' date: '2024-01-26' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE GRIFFITHS - 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} ======

No: 200704483/A5 Neutral Citation Number: [2008] EWCA Crim 513 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 21st February 2008 B e f o r e : LORD JUSTICE GAGE LORD JUSTICE HUGHES HIS HONOUR JUDGE PAGET QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v JOHN POINTON & SONS - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr R Matthews appeared on behalf of the Appellant Mr B Thorogood appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE GAGE: In April 2007 this appellant, together with a director of the company, faced an indictment containing six counts. The company, John Pointon & Sons Ltd, whom we shall refer thereafter to as "the company" was acquitted of count 1, manslaughter, as was a Director, Carl John Pointon, who faced only that count on the indictment. There were five other counts on the indictment, all alleging offences contrary to the Health and Safety at Work Act 1974 and associated regulations made under the Act . Those counts were: count 2, failing to ensure the safety of employees, contrary to section 2(1) and section 33(1) of the Health and Safety at Work Act; count 3, failing to provide a safe system for confined space working, contrary to Regulation 4(2) of the Confined Spaces Regulations 1997 and section 33(1) of the Act ; count 4, failing to provide suitable and sufficient arrangements for rescue from a confined space, contrary to Regulation 5(1) of the Confined Spaces Regulations 1997 and the Health and Safety Act and count 6, failing adequately to assess the risks to the health and safety of employees and other affected by its undertaking, contrary to Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 and the Health and Safety at Work Act 1974 . 2. The company pleaded guilty on rearraignment, on 11th April 2006, to counts 2 and 6. The trial proceeded on counts 1 and counts 3 and 4. On 14th May 2007 the company was convicted of counts 3 and 4 and, as we have said, acquitted, as was the director, of count 1, the offence of manslaughter. 3. The matter was adjourned for sentence and on 24th July 2007 the judge fined the company a total of £620,000. That was made up as follows: count 2, £480,000; count 3, £50,000; count 4, £50,000 and count 6, £40,000. The judge achieved this by taking a sum of £600,000 in respect of count 2, allowing for guilty plea and deducting 20%, he achieved £480,000, to which he added the other sums in respect of the three other counts. The company appeals against those fines by leave of the Single Judge. 4. The facts, so far as material, are as follows. The company is a private limited company, employing 127 staff. Carl Pointon, a son of the founder, was a production and technical director. The company operates from its factory at Cheddleton in Staffordshire. At the relevant time Mr Pointon was on duty, as was Mr Terry Roe, a general manager, Tony Tilstone, a training officer, Glynn Thompson, an electrician and Ivan Torr, a self-employed contractor. 5. The offences arose out of a tragic fatal accident which occurred on Sunday 15th August 2004. The background is as follows. The company deals with the rendering of animal material such as carcasses and offal. It receives animal by-products from slaughter houses and dead zoo animals which are treated to break down the materials so that some of the resulting by-products can be sold on. The animal material was brought to the factory in lorries. Originally the products were tipped onto the floor, sorted and placed on one of three open lines for rendering. 6. In March 2004 a fourth line was opened. This was a "state of the art" closed line, and known as "line 4". Products for line 4 were tipped straight from lorries directly into two hoppers which fed the line. The products were then moved along the line by a series of screws. The raw material is crushed and cooked at very high temperatures. Line 4, after its installation, was not infrequently subject to problems caused by blockages within the line. These were normally caused by large plastic bins, known as dolavs which arrived in the waste and caused obstructions. There was no set procedure for dealing with the problem; the solution depended upon the number of staff working at the time. 7. Gases and odours produced on line floor are extracted from the material via ducting from two systems. The main system took foul air and vapour from the cookers, presses and mills, while the second was primarily designed to provide air to the burners contained in the burning off material. No direct extraction was taken from the back screw area or other screw areas. 8. As we have already indicated, a fatal accident occurred at the company's premises on 15th August 2004. Overnight nine loads of raw materials had been delivered and tipped directly into the two hoppers on line 4. A dolav blocked the line and restricted the material passing through the hopper. The line was shut down and Mr Rowe and Mr Torr informed. Mr Carl Pointon arrived at the premises at 9.30 in the morning. Mr Torr also notified Mr Tilstone, who attended at 10.21 on the morning. Mr Torr attempted to clear the line using a JCB arm, at which point Mr Thompson arrived at the premises. There was an attempt to solve the problem by reversing the screws but that failed. When these procedures failed one of the methods for removing the dolavs devised by the work force was put into operation. It had apparently been used previously. In short, it involved a man being lowered on a sling into the back screw housing area. The system was devised without any planning, risk assessment, training or supervision by the company. It was this system which was put into operation on that occasion. Mr Torr was lowered into the back screw area of one of the hoppers on a sling, attached to a crane operated by Mr Thompson. Mr Torr collapsed inside the back screw area. Mr Thompson called for help on his personal radio. Mr Pointon had returned to the factory at this point and he operated the crane while Mr Thompson was lowered into the back screw area in an attempt to rescue Mr Torr. Mr Thompson also collapsed. Mr Pointon subsequently summoned the fire and rescue service and a ambulance. A gas monitor was used by the rescue services to establish the oxygen level and potentially dangerous gases. This revealed the presence of carbon monoxide and hydrogen sulphide. The two men were then removed after a lengthy recovery operation. 9. Tragically Mr Thompson died later without regaining consciousness. A postmortem examination concluded that death was caused by hypoxic brain damage. Continued exposure to an environment low in breathable oxygen or rich in toxic gases can cause irreversible brain damage. He had also suffered a cardiac arrest. The pathologist was of the opinion that, even if he had been extracted from the hopper more quickly, he might have already have suffered significant, possibly fatal, brain damage. Mr Torr was hospitalised and eventually discharged on 21st August 2005. He appeared to have suffered a memory lapse of the incident. Following the incident an investigation was carried out by the Health and Safety Executive and the police. It became apparent that the company did not have any established health and safety procedure. There was very little input from the management in respect of methods of work and no training in respect of health and safety or confined space working. There was no set procedure for dealing with blockages and the company had in the past failed to record and report accidents to the health and safety officers. Officers of the Health and Safety Executive, working with the police, subsequently gave evidence at the trial in respect of the major hazard for employees and on the day in question including toxic gases. The judge in his sentencing remarks described the dangers inherent in the procedure adopted on this occasion as follows: "This system had its own inherent and obvious dangers, not least that all of the men involved were working at considerable height in a slippery environment, and if the third man slipped from the sling and lost his grip on the hook, he would fall into the back screw area, and depending on how much material was in the back screw at the time, either on to the back screw mechanism itself, or into the animal waste inside that screw area. The potential for injury, albeit not of the kind befell Mr Thompson, was therefore both substantial and obvious. The potential for the need for rescue in these circumstances is similarly obvious and substantial. It has to be borne in mind that rescue from this area was further complicated by the fact that animal waste material is slippery, and also makes slippery any surface or solid item with which it comes into contact. Also inherent in this situation was another deadly danger, that of toxic gases given off by the biological action within the animal waste. During the trial, much evidence was given about the gases which are generated by this material and the effects of such gases. Two, in particular, were identified for their toxicity: hydrogen sulphide and carbon dioxide. Hydrogen sulphide is highly toxic even in a small quality. It interferes with the body's ability to use oxygen, and in great quantity it will affect consciousness. Carbon dioxide is less toxic but its presence reduces the amount of oxygen in the atmosphere." 10. The company had received complaints about offensive odours from local residents. No line assessments had been carried out into line 4 and there had been a failure to identify the potential risks of working in confined spaces. Of this, the judge said in his sentencing remarks: "Thus, in its operation of line 4, and in particular, knowingly allowing its employees to enter the back screw housing in order to remove obstructions in the way that I have just described, the company in fact, subjected them to a number of dangers [we interpolate employees]: from falling, from trapping, from unsafe levels of dangerous gas and from a difficult and hazardous rescue. Entry at the back screw housing was, on any view, a high-risk activity, which arose out of the company's failure so far as was reasonably practicable to ensure their safety, to assess risks to their health and safety, to provide a safe system for confined space working, and to provide suitable and sufficient arrangements for rescue. These failures, taken both individually and together, were serious derelictions of the company's duty and fell far short of what they could and should have reasonably have done." 11. Mr Carl Pointon, having been arrested for manslaughter, was interviewed on 16th November 2005. At that interview his solicitor read out a prepared statement which concluded by Mr Pointon saying that he did not know of any problems of toxic gases. Had he been aware he would not have allowed workers to enter the areas that they did. Thereafter he declined to answer questions at a later interviews. As we have said, the company pleaded guilty on rearraignment to count 2 and count 4 and was convicted of counts 3 and count 6. 12. The judge in his sentencing remarks, summarised all the relevant aggravating features and all the appropriate mitigating factors. The aggravating features are, first, the failure of the company's health and safety procedures which resulted in the death of an employee who was at the time attempting to rescue another employee. Secondly, the health of the rescued man was seriously compromised, although ultimately he made a complete recovery. Thirdly, at the time of the accident the company's attitude to health and safety was careless and irresponsible. 13. So far as the mitigating factors are concerned, these can be summarised from the sentencing remarks as follows: firstly, the company pleaded guilty to two of the charges, including the most serious one, count 2. They had been indicated at a hearing before the trial. Secondly, the issues on the two charges which were fought were narrow, and, on the fundamental points, were not contested. Thirdly, although there had been previous incidents the company had no previous health and safety conviction. Fourthly, the company, through its directors, had made a clear expression of deep and genuine remorse. Fifthly, since the incident the company had taken very considerable steps to ensure proper health and safety standards across the whole of its operation. Sixthly, steps had been taken to ameliorate effects which the plant and its processes have on the environment. 14. Having outlined these matters the judge referred to all the relevant authorities of this Court and some decisions at first instance. He described the case as a "serious one" and the breaches of duty as "substantial". He accepted that the breaches were not motivated by a desire to put profit before safety. However, he described the degree of risk as "very high" and the potential for injury or death "considerable" and one which persisted for a significant period of time. None of these findings or observations by the judge are challenged by the appellant. We pay tribute to the care with which the judge dealt with this matter in his sentencing remarks. 15. Nor does the company seek to argue that it cannot afford to pay this fine. It is now a medium sized private company, whose business is profitable and expanding. We are told that for the year ending 31st July 2007 the company had a gross profit of just over £11.5 million. Its administrative expenses for that year were nearly £10 million and pre-tax profits £1.1 million. For the year ending 31st July 2006, draft figures show gross profits of around £18 million, with a pre-tax profit of about £4.5 million. 16. In grounds of appeal, and in the skeleton argument and in oral submission today Mr Matthews makes three principal arguments. Firstly, he submits it was wrong in principle for the judge to impose separate penalties on each count. He ought to have imposed one fine on count 2, the most serious count, namely the breach of a general duty owed to the company's employees. It is submitted no separate penalty should have been imposed in respect of the other counts. 17. Specific submissions on these matter are that, so far as counts 3 and 6 are concerned, it is not appropriate to make a separate penalty in respect of each of them; count 6 is subsumed into count 3. 18. The principal submission, however, is that the starting point for the fine of £600,000 which the judge took was manifestly excessive. It is submitted that the authorities demonstrate that a fine of a lesser sum should have been imposed. The third submission is that the total cost figure of £143,000, of which the judge ordered the company to pay £80,000 was, in all the circumstances, excessive, bearing in mind that the company had pleaded guilty to the main offence and that the issues in relation to the other counts were narrow. So far as the principal count of manslaughter is concerned, the company was acquitted. Fourthly, it is submitted in the skeleton argument that the judge failed to give sufficient weight to mitigation. 19. As we have already indicated, the judge in assessing the fine took as a starting point, in respect of count 1, a figure of £600,000, which he discounted by 20 per cent to arrive at the figure in respect of that count of £480,000. 20. The sentencing exercise in cases such as these is never easy. The guidelines given to judges are in the most general form, and for obvious reasons cannot be refined. There is no tariff. The judge at first instance had, therefore, in this case, a difficult task. We have no doubt that he was entitled to fine the company on each count. It was not wrong in principle to fine the company on this basis. That is not to say that it is wrong for the judge to pass one fine for the most serious offence and make no separate penalty for other counts. Whichever course a judge adopts it will be the totality of the fine which must not be manifestly excessive. It follows that where separate fines are passed, the judge must be careful to ensure that there is no double counting and that the totality is not excessive. 21. In this case we do not accept that the judge failed to take into account the mitigation put forward on behalf of the company. As we have already said, he specifically referred to the mitigating factors in his sentencing remarks. In our judgment, the total figure at which he arrived was one which reflects his view as to the company's culpability after balancing the aggravating and mitigating factors. However, the main question for this Court today is whether or not the total was manifestly excessive. 22. We accept, as the judge did, that line 4 was put in by a very reputable company. It is true that the company which installed the line did not alert the company to the problems which might be caused by blockages. But when blockages did occur, the method adopted to clear them was obviously very dangerous, yet the company failed to take adequate steps to alter the system. This can only have been due to what the judge described as the company's careless and irresponsible attitude to health and safety matters. 23. The consequences of the company's failure in this case were tragic and ought to have been avoided, but we accept the force of the submission that line 4 had not been in use for very long before the incident. The company has no previous convictions and since the accident it has done a great deal to improve the safety in its premises. 24. In setting the starting point at £600,000 in respect of count 1, before making a deduction for guilty plea, the judge clearly had in mind what Gibbs J said when giving the judgment of the Court in R v Colthrope Board Mills Ltd [2002] EWCA Crim 520 . In that case, as the judge said, the court stated that a sum of £500,000 in a case involving the death of an employee was not set in stone or to be taken as some sort of maximum. Indeed, we endorse that: it is neither the ceiling nor the floor. It does provide some guidance. We, like the judge, we have been referred to a number of decisions of this Court and, as he was, to decisions of judges at first instance. At first sight it is little difficult to see from where Gibbs J got the figure of £500,000, which seems more appropriate to cases of where there has been a disaster. The authorities which we have looked at suggest a somewhat lower figure. 25. In all the circumstances, we have concluded, in this case, that the fine was greater than it ought to have been and despite, as we say, the careful attention the judge paid to the way in which he calculated the figure, in our judgment it was manifestly excessive. Accordingly, we propose to alter the fine. We propose to do so by quashing the fine in respect of count 2, for it we substitute a fine of £360,000. We calculate that by taking a figure of £450,000 and deducting 20% to take into account the guilty plea. So far as the other counts are concerned, we quash the fine in respect of count 6. We accept the submission that count 6 is subsumed into count 3. The fines in respect of counts 3 and 4 will remain. They total £100,000. The total sentence is therefore £460,000. To that extent, and for those reasons we allow the appeal in respect of the fines. 26. So far as the costs are concerned, in our judgment, the order made by the judge was one well within the acceptable boundaries of his discretion, and we decline to interfere with it. 27. MR MATTHEWS: May I make an application for a defendant's costs order in respect of the costs of this appeal? 28. LORD JUSTICE GAGE: You may make an application. 29. MR MATTHEWS: That is my application. I do not have a figure today, the application will be for-- 30. LORD JUSTICE GAGE: I noticed that in one of the cases where there was a similar success or partial success, the Lord Chief Justice said that he did not think it appropriate to make an order for costs in that case. 31. MR MATTHEWS: It is indeed. My Lord, I would only say that there are clearly good reasons for the appeal and it has been successful. (The Bench Conferred) 32. MR JUSTICE GAGE: No, Mr Matthews, there will be no order for costs. Thank you both very much for your help.

```yaml citation: '[2008] EWCA Crim 513' date: '2008-02-21' judges: - LORD JUSTICE GAGE - LORD JUSTICE HUGHES - 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: 201803723 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION [2019] EWCA 183 (crim) Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 5 February 2019 B e f o r e : LORD JUSTICE FLAUX MR JUSTICE HOLGATE MR JUSTICE MURRAY R E G I N A v LIRIDON ARUSHA Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr M McAlinden appeared on behalf of the Applicant J U D G M E N T (Approved) LORD JUSTICE FLAUX: 1. On 1 November 2016, in the Crown Court at Inner London before Her Honour Karu, this applicant pleaded guilty to an offence of possession of an identity document with improper intent; possession of a controlled class A drug, cocaine, with intent; and various driving offences sent by the magistrates under section 51 of the Crime and Disorder Act 1988. 2. On 3 November 2016, he was sentenced by the same judge to 10 years' imprisonment for possession of cocaine with intent with 6 months concurrent in relation to the false identity document and no separate penalty for the driving offences. 3. The applicant now applies for an extension of time of 642 days in which to apply for leave to appeal against sentence. His application has been referred to the full court by the single judge. 4. The facts of the offending can be summarised as follows. On 6 September 2016, the applicant was stopped by police while in a Volvo motor vehicle near the Hollywood Bowl in Surrey Quays, SE16. He was asked for identification and provided officers with a false Bulgarian driving licence in the name of Nicolay Ivanov. The vehicle was searched with the use of a police dog. Hidden in a side panel in one of the vehicle's doors were 27 individual blocks of cocaine each weighing 1 kilogram. The applicant was arrested for offences of the possession with intent to supply and possession of a false identification document. 5. While en route to the police station the applicant spoke with the police officers. When they told him they thought they had found approximately 28 kilograms of drugs, he corrected them and said, "Not 28; it is 27". He told the officers that the packages contained cocaine and belonged to him. 6. He later made full admissions during his police interview. He said that he had arrived in the United Kingdom one month earlier and was acting as a drug courier. He had purchased the car for £5,000 and had been employed to transport the drugs by others, although he refused to provide their details. The applicant said that he been waiting for instructions on where to deliver the drugs. 7. He was found in possession of an encrypted mobile phone and had £961 in cash on his person. The drugs had a 95 per cent purity with a wholesale value of between £75,000 and £100,000 and a street value of between £1 million and £2.7 million. 8. The applicant pleaded guilty on a written basis of plea. He claimed to have been illegally trafficked into the United Kingdom in a lorry and to have become involved in this matter as a result of naivety and coercion. He maintained that his role was limited to that of a courier acting under the direction of another, that this was the only transaction in which he was involved, that he had been provided with the car and paid £1,000 to collect the packages at the location where he was stopped by the police, after which he would have been contacted by phone and told where the packages were to be taken. He was made aware that the packages he was collecting contained controlled drugs and initially believed that they were cannabis. However, he accepted that at the time the packages were transferred into his vehicle he became aware it must be something much more than cannabis, namely class A drugs; he had no influence on those above him in the chain of command; his involvement was for a short period of time and the offence was totally out of character. 9. At the sentencing hearing, prosecution counsel, Ms Anson, opened the facts as we have set them out above. She submitted that in relation to role for the purposes of the sentencing guideline, while on the face of it, it appears that the applicant was performing a limited function under direction, he was clearly motivated by financial or other advantage, operating with others and he had to have some awareness of the scale of the operation given the street value of the drugs and their purity. 10. She then referred the judge to the starting points and sentencing ranges for both lesser role and significant role in the guideline. The judge pointed out that Category 1 in the guideline was for 5 kilograms of class A drugs and this was a significantly greater amount. The judge drew attention to the passage in the guideline which says: "Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than Category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender." 11. Ms Anson said that the prosecution could not accept the basis of plea because there remained issues in relation to his knowledge and awareness of the scale of the operation given the street value. The prosecution said that he must have been in a trusted position to be given such a high amount of drugs with such a high street value. Notwithstanding saying this, so far as we can discern neither prosecution counsel nor Mr Aslam, who then represented the applicant, sought a Newton hearing, nor did the judge raise any issue as to whether there should be one. 12. In sentencing the applicant, the judge set out the facts, essentially as we have referred to them above. The judge said that she had no doubt that others were involved. The applicant was not at the top of the chain and she accepted that to some extent he had been acting under direction. His guilty pleas were entered on the basis that he fell within a lesser role of Category 1 of the sentencing guidelines and that he had simply been a courier. The judge said that, as she had said to his counsel already, there were certain factors in the case which led her to conclude that his case did not fall solely in the lesser role category. He had some awareness and understanding of the scale of the operation. 13. The basis of plea said that he initially believed that the packages contained cannabis but by the time they were moved into his vehicle he became aware that they contained class A drugs. He purchased a vehicle which was specifically adapted to conceal the drugs. If he provided the vehicle and drove it to the location where the transfer was to take place and concealed 27 packages in what was a reasonably sophisticated concealment, the judge considered that he was in those circumstances somewhere between the lower part of significant role and the top of lesser role. He must have had some awareness and understanding of the actual scale of the operation. It had been submitted on his behalf that he was receiving £1,000 to collect the packages and he was found in possession of just under that amount. The judge said that it was somewhat surprising that he was paid what he was due before he had completed his task of delivering the packages. 14. The judge noted that the applicant was 23 and had no previous convictions in this country. She then referred expressly to the passage in the guideline which said that sentences of 20 years or more, depending on the offender's role, may be appropriate for cases of an operation on the most serious and commercial scale involving significantly more drugs than in Category 1. She noted that Category 1 dealt with a maximum of 5 kilograms and that this case involved a significantly higher quantity. She then referred to the starting points and sentencing ranges for a lesser role and significant role under Category 1. She said that she had already explained why she had concluded that he did not fall only into the lesser role. 15. Taking account of all those factors, the sentence after trial would have been 15 years. Giving him full credit for his guilty plea, the sentence was 10 years' imprisonment. 16. It would appear from the Advice of counsel now instructed that after sentence Mr Aslam gave oral advice. Given that there was no application for leave to appeal at that time, we infer that his advice was against appealing. The appellant has now instructed new solicitors and counsel, Mr McAlinden. The reasons given for seeking an extension of time of 642 days are set out in his advice as follows. Mr McAlinden, was not provided the papers for the case until 28 August 2018. Those instructing him had not represented the applicant at the original hearing. The applicant had not been provided with any written advice on appeal in 2016 or at any time since. Following sentence the applicant became depressed, having been threatened by associates for whom he was working when committing the offences. The applicant had been reluctant to speak out and only recently contacted new solicitors to request advice on any arguable ground of appeal. In those circumstances, the applicant had never had the opportunity to consider his position properly. 17. We do not consider that this is a sufficient explanation for the very considerable delay. There is no real attempt to explain when or why the applicant decided to contact the new solicitors having done nothing for a year and a half. We are not prepared to grant the extension of time sought. 18. However, in any event, even if we had granted the extension of time, we would not have granted leave to appeal for reasons we will set out. Mr McAlinden's primary submission was that since the applicant had pleaded guilty on a specific written basis which was consistent with his having played a lesser role within the guideline, he should have been sentenced only on that basis. For Category 1, the starting point is 7 years with a range of 6 to 9 years. With credit for his guilty plea this should have resulted in a sentence no greater than 6 years' imprisonment. Alternatively, he submitted that even if the judge was right to place the applicant on the cusp between lesser role and significant role, the judge should have taken a mean starting point between the two roles of eight and a half years. To take a starting point of 15 years, nearly double that, is manifestly excessive. 19. He submitted in his oral submissions that if the applicant was a courier, the amount of the drugs did not make him into something greater in terms of role. Even though it involved 27 kilograms, he was still no more than a courier. He submitted that the judge's approach of putting the applicant into a higher category because of the amount of drugs involved effectively involved double counting. Mr McAlinden submitted that the judge should have had a starting point no greater than 10 years. 20. In our judgment, attractively though these submissions were put, we cannot accept them. As to whether the judge should not have departed from the basis of plea, the judge is never bound by the basis of plea, but if he or she is going to depart from it in whole or in part this should be made clear so that the defence can decide how to proceed - see R v Underwood [2004] EWCA Crim 2256 , R v Lucien [2009] EWCA Crim 2004 and the Criminal Practice Directions 2015, paragraph 7, B7 to B9. 21. In the present case, as we have said, prosecution counsel made it clear at the end of her opening of the facts that the Crown did not accept the basis of plea, essentially because the applicant's role was more serious and his knowledge more extensive than the basis of plea sought to portray. From what the judge said in her sentencing remarks, it is clear that during defence counsel's mitigation the judge did indicate to Mr Aslam that she did not accept that the applicant's role was as limited as set out in the basis of plea. 22. Mr Aslam was thus aware that neither the Crown nor the judge fully accepted the basis of plea. At that point, assuming that the applicant did not want to change his plea, which was not a realistic possibility on the facts of this case, he could have taken one of two courses. He could have sought a Newton hearing to resolve the issue of the applicant's role and called the applicant to give evidence. That may not have been an attractive course for the applicant given that if he lost a contested Newton hearing he stood to lose half his credit for the guilty plea - see paragraph F2 of the guideline on reduction in sentence for a guilty plea. Alternatively, he could choose to make submissions on the material which was before the court. It appears he chose the latter course since there is no hint anywhere in the transcripts or in the Advice of new counsel that Mr Aslam sought a Newton hearing or complained about the basis on which the judge actually sentenced. In those circumstances, the judge was entitled to sentence without being bound by the basis of plea and in any event it is too late for the applicant to complain now. 23. The fact that the applicant was entrusted with 27 kilograms of cocaine with a substantial street value of possibly up to £2.7 million, which he then concealed in what was, in effect, a specially adapted secret compartment in the car that he had bought, belies any suggestion that he was a mere courier and demonstrates that he did have some awareness and understanding of the scale of the operation. Even in his basis of plea he accepted that when he took over the drugs he knew that the 27 packages were class A drugs. We also agree with the judge that if he were a mere courier, it is surprising to say the least that he was paid before he had completed the task of delivering the drugs. 24. This all suggests a far greater degree of knowledge and involvement than just a lesser role and, in our judgment, puts him well into the category of significant role. In those circumstances, the submission that the judge should have sentenced for this quantity of class A drugs by reference to some mean of the two sentencing ranges is wholly unrealistic. This offending involved more than five times the maximum amount in Category 1. It involved, as the judge said, a reasonably sophisticated concealment. 25. It seems to us that the applicant was involved with a serious operation on a commercial scale so that the note in the guideline about sentences in excess of 20 years is applicable. A role at the bottom end of significant would not warrant a starting point after trial as high as 20 years but we consider that this applicant's role was such that a starting point of 15 years, whilst severe, cannot be said to be manifestly excessive. There is some analogy here with the cases of lorry drivers importing quantities of class A drugs substantially in excess of the 5-kilogram maximum in Category 1, such as R v Nunez-Lopez [2015] EWCA Crim 1451, where this court held that a starting point of 15 years was appropriate. These applications are dismissed. 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 183' date: '2019-02-05' judges: - LORD JUSTICE FLAUX - MR JUSTICE HOLGATE - MR JUSTICE MURRAY ```

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 478 No. 202103058 A2 202103276 A2 Royal Courts of Justice Thursday, 24 March 2022 Before: LADY JUSTICE WHIPPLE MR JUSTICE JEREMY BAKER HIS HONOUR JUDGE LODDER QC, RECORDER OF RICHMOND UPON THAMES REGINA V ROY BASSON PAUL WORTHINGTON __________ Computer-aided Transcript prepared from the Stenographic Notes of 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. HUGHESTON-ROBERTS appeared on behalf of the First Appellant. MS F DAVY appeared on behalf of the Second Appellant. ________ JUDGMENT LADY JUSTICE WHIPPLE: Background 1 On 26 August 2021 in the Crown Court at Maidstone before Mr Recorder Elvin QC, the appellant Basson, then aged 39, and the appellant Worthington, then aged 41, pleaded guilty to the offence of conspiracy to supply class A drugs. 2 On 23 September 2021 HHJ Gratwicke sentenced both appellants to 11 years' imprisonment. Both now appeal against sentence with the leave of the single judge. Facts 3 The facts in brief are these. At about 2.30 in the afternoon on 20 May 2021 police officers in Maidenhead witnessed an exchange of drugs between Worthington and Basson. The officers observed as Worthington got out of his Volkswagen Transporter van and walked towards Basson, who was stood at the door of his Citroen Berlingo. Worthington handed Basson a large tartan laundry bag, then both men turned towards their respective vehicles. 4 As the officers approached, they saw Basson was in the rear of his vehicle. He was wearing latex gloves and was unloading 1kg compressed blocks of cocaine from the laundry bag into a purpose-built concealed compartment in the floor of his van. The compartment was operated by remote control. By the time the officers got into the back of the van, Basson had unloaded 16 of the kilogram blocks of cocaine into the hide and there were four blocks left in the laundry bag. The vehicle was searched and £2,000 in cash was found in an envelope in a compartment above the steering wheel, along with two iPhones. Basson was arrested. 5 Worthington was approached by police whilst making a telephone call from inside his van. When he was arrested, police recovered two iPhones and a notepad, which had various post codes written on it. Worthington was found to be in possession of £270 in cash. 6 The drugs were examined by a forensic scientist who confirmed that there were 20kg of cocaine between 75 and 77 per cent pure. The wholesale value was in the region of £6,000 to £9,000, with a potential retail value of between £1 million and £2 million. One of Worthington's iPhones contained messages appearing to indicate that he was being directed to make multiple exchanges. These were drug-related messages, one of which showed that Worthington had been given a signal to make the exchange with Basson, another of which showed Worthington referring to "the afternoon shift tomorrow". 7 Basson and Worthington both gave no comment interviews. Sentence 8 At the sentencing hearing on 23 September 2021, the Crown set out the facts. The Crown's submission was that both men had an operational and management function within the chain, both had an expectation of a significant financial advantage given the quantity of drugs involved, and, despite Worthington only in fact having a relatively small amount of cash on him at the time, both were aware of the scale of the enterprise they were involved in. Accordingly, the Crown said that they both played significant roles. This was the Crown's case based on the accepted bases of plea. 9 In sentencing, the judge noted the "exceedingly large amount" of cocaine involved, namely 20kg. He stated the defendants had made a choice and had gone into this enterprise with their eyes open. Turning to the guidelines, he concluded that this was a category 1 case, noting that the drugs involved were four times the indicative amount. 10 Turning to Basson, he said that Basson had some awareness of the scale of the enterprise that he was engaged in. Basson took delivery of the van, registered and insured it. Whether Basson built the concealed compartment mattered not, because he knew about it and that it would be used for transporting drugs. Basson was motivated by financial gain. Basson played a significant role. The judge noted Basson's lack of previous convictions for drugs and the rest of his personal mitigation. He concluded that after a trial Basson would have been sentenced to 15 years' imprisonment. He gave a discount of 25 per cent for the guilty plea and made an adjustment in light of Manning . The resulting sentence was one of 11 years' custody. 11 The judge then turned to Worthington. He said that Worthington also had some awareness and understanding of the scale of the operation, carrying 20kg in an ordinary bag to his waiting co-defendant Basson. Worthington too was motivated by financial gain. He too fell into category 1 and occupied a significant role. He too had no previous convictions for drugs and had personal mitigation in the form of alcohol problems. The judge also noted efforts made by Worthington while in custody to change his ways. The judge concluded that after a trial Worthington would have been sentenced to 15 years' imprisonment. Likewise, after giving 25 per cent credit for plea and making an adjustment for Manning , the sentence in Worthington's case was 11 years' imprisonment. Grounds of Appeal 12 Mr Hugheston-Roberts appears for Basson. Mr Hugheston-Roberts did not represent Basson at the hearing below. Mr Hugheston-Roberts' written grounds of appeal advance two grounds. First, he criticises the judge for going above the guideline range for category 1 significant role; the starting point for that category under the relevant guideline is ten years in a range of nine to 12 years. Secondly, he argues that Basson should have got more than 25 per cent credit for his guilty plea. In oral submissions before us, Mr Hugheston-Roberts has adopted Ms Davy's written grounds in relation to Worthington's appeal. 13 Ms Davy appears for Worthington. She represented him at the sentencing hearing. She advances the following arguments in her written grounds. First, that the judge failed to sentence in accordance with the written basis of plea, which was not disputed by the Crown, in which Worthington accepted that he was a courier, but had no other knowledge or involvement. Secondly, the judge failed to have any or adequate regard to those factors suggested for lesser as opposed to a significant role, specifically the fact that Worthington performed a limited function under direction, that he had no influence on those above him in the chain, that he was being sentenced for his involvement on a single day, and that there was no evidence of substantial financial gain in his case. Third, the judge provided no explanation for assessing Worthington's role as significant. Fourth, the judge took too high a starting pointed. Fifth, the judge should not have increased the starting point by reference to the quantities seized, which had nothing to do with the role played by Worthington. In oral submissions before us today, Ms Davy has focused particularly on those aspects of Worthington's involvement which tended, in her submission, to lower his role to the lesser category or to the bottom end of the significant category. 14 We are grateful for the focused and succinct submissions which we have received from counsel, both in writing and orally. Basson 15 We consider the appeal in Basson's case first. The sentencing judge put Basson in category 1 significant role. The role he occupied was significant, because Basson had some awareness and understanding of the scale of the operation. Harm was assessed by reference to the weight of the product. Category 1 in the guideline is predicated on 5kg of cocaine. In this case 20kg was being handled on the day in question. For a significant role, the guideline gives a starting point of ten years in a range of nine to 12 years. The guideline states that for cases where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than specified in category 1, sentences of 20 years and above may be appropriate. Given the very substantial quantity of cocaine involved in this case, on a single day, but in the context of repeat engagement in a drugs conspiracy, the judge was plainly entitled to go above the top of the range indicated in the guideline. The guideline itself suggests that in appropriate cases where the operation is on the most serious and commercial scale the top of the range should be exceeded. This operation was approaching that end of the scale. Thus, the judge's identification of 15 years as the notional determinate sentence after a trial cannot, in our judgment, be criticised. We reject Basson's first ground of appeal. 16 The judge reduced the sentence to 11 years applying a global reduction of around 27 per cent to take account of the guilty plea and Manning . We note that when the case was opened by the prosecution, the sentencing judge was told that Basson pleaded guilty at the PTPH. It does not appear that Basson's defence counsel at the hearing said otherwise. A reduction of 25 per cent is of course in accordance with the relevant guideline for a plea entered at that stage. In fact, it now appears that Basson indicated his intention to plead guilty at the Magistrates' Court. The notice to the Crown Court for sending for trial from the Magistrates' Court states in terms "plea of guilty indicated": see p.A3 on the DCS. It is regrettable that this was not drawn to the sentencing judge's attention. 17 In light of the early indication of guilty plea, Basson was entitled to a one-third reduction. Taking 15 years as the notional sentence after trial and reducing it by one-third arrives at ten years. We preserve the roughly three months' additional discount for Manning to arrive at a total sentence in Basson's case of 117 months or nine years and nine months. 18 We therefore allow the appeal against sentence in Basson's case. We quash the sentence of 11 years' imprisonment and impose in its place a sentence of 117 months: that is nine years and nine months. Worthington 19 We turn to Worthington's appeal. The first ground of appeal is that the judge failed to sentence in accordance with the basis of plea, which was accepted by the crown and was in the following terms: "(a) The extent of the defendant's involvement in the conspiracy on 20 May 2021 was that of a courier; namely, acting upon instruction from another. He collected and delivered the trucks in question from and to an address only provided to him that morning. (b) Beyond his role as courier on 20 May 2021, he had no other knowledge or involvement. (c) The extent of the defendant's benefit from his role as courier was payment of £300 in cash; £270 of this was seized from him on arrest." 20 The judge sentenced on the basis that Worthington had some awareness and understanding of the operation, such that his role was significant. In our judgment, that finding plainly was open to the judge on the material before him. As he noted, Worthington had handed over a laundry bag with 20kg of product in it. There were multiple messages on Worthington's phone dealing with exchanges. True it is that Worthington was found with only £270 cash in his possession, but the guidelines refer to the expectation of financial gain and it can readily be inferred that Worthington expected to make more money than this amount from his participation in this conspiracy. In short, the basis of plea, when put alongside other evidence in the case and known facts, is not inconsistent with the categorisation of Worthington playing a significant role. The first ground fails. 21 The second ground of appeal is connected to the first. It relates to factors which it is said point to a lesser role. We consider the judge to have been well placed to assess the role played by Worthington. The particular factors highlighted by Ms Davy represent, at best, a partial view. We have already identified those features of the evidence which put Worthington in the significant role category. This leads us to conclude that ground two also must fail. 22 By his third ground, Worthington suggests that the judge failed to explain why he put Worthington in a significant category. With respect, we disagree. The reasons given were sufficient. The third ground fails. 23 The fourth and fifth grounds have already been addressed in relation to Basson's case. The judge was entitled to take 15 years as his notional sentence after trial. We understand the judge to be saying that 15 years took account of the aggravating and mitigating factors and left only credit for plea to be deducted. The quantity of cocaine justified an uplift substantially above the top of the category range. These grounds fail. Conclusion 24 We therefore dismiss these appeals. __________

```yaml citation: '[2022] EWCA Crim 478' date: '2022-03-24' judges: - LADY JUSTICE WHIPPLE - MR JUSTICE JEREMY BAKER - HIS HONOUR JUDGE LODDER QC, RECORDER OF RICHMOND UPON THAMES ```

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: 2023 01754 A2 NCN: [2023] EWCA Crim 798 Royal Courts of Justice Strand London WC2A 2LL Thursday 29 June 2023 Before: LORD JUSTICE STUART-SMITH MR JUSTICE JACOBS RECORDER OF SHEFFIELD His Honour Judge Jeremy Richardson KC REX v WILLIAM GEORGE McKINLEY __________ 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 MR JUSTICE JACOBS: 1. This is a renewed application for leave to appeal against sentence following refusal by the single judge. 2. On 10 March 2023, having pleaded guilty before the Southampton Magistrates' Court, the applicant was committed for sentence pursuant to s.14 Sentencing Act 2020 in respect of two offences of assault on an emergency worker contrary to s.1 Emergency Worker Act 2018. The maximum sentence for that offence is 2 years, which represents a considerable increase in the maximum 6-month sentence for a common assault. The two emergency workers in the present case were police officers, PC Walsh and PC Pope. 3. On 28 April 2023 in the Crown Court at Southampton, Recorder Pilgerstorfer KC sentenced the applicant (then aged 32) to imprisonment of 9 months for the assault on PC Walsh and 2 months concurrent for the assault on PC Pope. 4. The facts concerning the offences were as follows. On Thursday 2 March 2023 the applicant had been out, in and around Eastleigh, drinking for hours. He was labouring under a sense of injustice as far as access to children were concerned and took it upon himself to go and visit the home address of his previous partner and mother of his two children. Sometime between 12 and 1 in the early hours of the morning there erupted a furious row between the two of them. Neighbours heard it and several of them telephoned the police. The applicant threatened his former partner with violence and threw two television sets from inside the property to outside the property. 5. PC Walsh and PC Pope arrived at just gone 1 am to find one of the television sets. The former partner was in a considerable state of distress. She informed the officers that the applicant had just gone round the back. The officers found the applicant on the ground between two vehicles. PC Walsh tried to talk to him. The applicant was arrested. He gave a false name and, whilst officers were trying to establish his true identity, he attempted to walk off. 6. PC Walsh took hold of one of the applicant’s arms and PC Pope endeavoured to take hold of the other arm in order to try to detain him. The applicant took hold of PC Walsh’s vest. PC Walsh shouted at him ,"Get off my vest or you’ll be arrested on suspicion of assaulting the police". The applicant would not do so and therefore PC Walsh took out his PAVA spray in order to deter the applicant from any further violence. The struggle got worse and worse. PC Walsh again asked the applicant to let go of his vest. The applicant replied, "Spray me, knock yourself the fuck out bruv". PC Walsh did then use the PAVA spray, but it did not work. Whilst that was happening PC Pope was trying to hold on to the applicant. She had her vest seized and she was threatened with being hit by the applicant if she did not desist. The officers tried to get handcuffs on the applicant and asked him to release his arms as he was holding his arms in front of him and trying to make it difficult for them to arrest him. They managed to get hold of him from both sides and put him over a bonnet, but that did not stop him. He wriggled and pushed away. There was another attempt to use the PAVA spray. The applicant shouted, "You're assaulting me bruv. How do you like it you silly. I’m not fucking with you." PC Walsh managed to get the handcuffs on one of the applicant’s hands. The applicant was told repeatedly to release his arms but would not do so. He then began to allege police brutality. 7. In the struggle both the applicant and PC Walsh went to ground. PC Walsh was at the bottom with the applicant on top of him. By the time he had gone to the ground PC Walsh had been hit and punched at least four times, twice in the face and twice to the back of the head. He believed that he had been head-butted. The blows to him were sufficient to knock his glasses off and they were subsequently found to be broken. On the ground the assault continued with the applicant straddling PC Walsh, with a forearm pressed down and across his throat, and hitting him repeatedly with the other arm. PC Walsh pressed his emergency button. PC Pope tried to take hold of the hand that the applicant had been using to hit PC Walsh. PC Walsh feared serious injury as he could not breathe and called out words to that effect. A number of police vehicles rushed to the scene and officers managed to pull the applicant away. During the course of this the applicant was told to put his hands behind his back, but he continued to refuse. The other officers managed to pull the applicant off and handcuff him. PC Walsh was taken to hospital. He had suffered bruising and a cut to his hand. In his victim personal statement PC Walsh said that he had never previously encountered such a level of violence and that he had feared that he could have ended up with traumatic injuries. He said that he would carry this throughout his career and his personal life and it would make him more cautious about approaching suspects. 8. The applicant had 38 convictions for 66 offences between 2004 and 2023, largely for offences of dishonesty, breach of court orders and failing to surrender. His previous violent offences were battery, for which he received 6 weeks' imprisonment in 2008, and robbery, for which he received 6 years' imprisonment in 2014. 9. In his sentencing remarks the recorder categorised the assault as A1 under the Assault Guidelines as far as PC Walsh was concerned. He identified various aggravating features. He had the benefit of a pre-sentence report and referred to that in his sentencing remarks. His sentence was 14 months prior to a reduction of 33 per cent to 9 months because of the applicant's early guilty plea. On count 2 the sentence was 3 months reduced to 2, to run concurrently. He considered suspension but came to the view that this was inappropriate: there was no realistic prospect of rehabilitation and the offending was really serious. 10. In his written grounds of appeal prepared by his solicitor, there was no dispute that the assault on PC Walsh was A1 under the guideline, but it was submitted that a sentence of 14 months was manifestly excessive; it was more than double the top of the range for a common assault offence. 11. The single judge who dealt with the application said this: "You were guilty of a deliberate, frightening, unprovoked and sustained attack. Your offending was aggravated by your poor antecedent record and the fact that there were two victims. The recorder took into account such mitigation as there was but was fully entitled to take into account the Assault Guideline which provides: 'Having determined the category of the basic offence to identify the sentence of a non-aggravated offence, the court should now apply an appropriate uplift to the sentence in accordance with the guidance below. The uplifted sentence may considerably exceed the basic offence category range.' The fact that the statutory maximum for the aggravated offence is now two years demonstrates Parliament’s intention that assaults on police officers should result in condign punishment. This is what you deserved and this is what you got. It is not reasonably arguable that your sentence was manifestly excessive.” 12. We are in complete agreement with the single judge. Accordingly the application for 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: '[2023] EWCA Crim 798' date: '2023-06-29' judges: - LORD JUSTICE STUART-SMITH - 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: [2007] EWCA Crim 3383 No: 200702012/A2-200702016/A2-200702013/A2-200702015/A5-200702014/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 11th July 2007 B E F O R E: LORD JUSTICE MAURICE KAY MR JUSTICE TUGENDHAT SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NOS 45, 46, 47, 48 & 49 OF 2006 (CALLAGAHAN & ORS) - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - MISS S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL MR C BATTY appeared on behalf of the OFFENDERS CALLAGHAN & SMITH MR S BATISTE appeared on behalf of the OFFENDER BRATTLEY MR F DAVIES appeared on behalf of the OFFENDER SMITH MR A STUBBS appeared on behalf of the OFFENDER BUIKE - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MAURICE KAY: This case comes before the Court by way of a Reference, under section 36 of the Criminal Justice Act 1988 . We grant leave. 2. The case concerns five young men who pleaded guilty to offences of conspiracy to steal and conspiracy to burgle. On 20th March 2007, in the Crown Court at Leeds, they were sentenced by His Honour Judge Dobkin. Callaghan received a sentence of three-and-a-half years' imprisonment for these offences, with additional concurrent sentences for unrelated matters of burglary, aggravated vehicle taking and driving while disqualified, totalling 12 months. In other words, his sentence in total was one of three-and-a-half years. Brattley received a sentence of two-and-a-half years' detention on the indictment, as did Boylan and Buike. However, in Boylan's case there was a consecutive sentence of 4 months for an offence of affray, and in Buike's case, there was a consecutive sentence totalling 9 months in relation to unrelated matters of burglary, aggravated vehicle taking and driving whilst disqualified. Smith received a sentence of 2 years' imprisonment on the indictment. 3. Callaghan is aged 22; Brattley is 20; Boylan is 20, Buike is 23 and Smith is 21. 4. The offences for which they were being sentenced, the offences of conspiracy, all relate to what can only be described as a campaign of ram raiding in and around Leeds over a 4-month period. As is common with such offences the conspiracy to steal was concerned with the obtaining of cars for use in ram raid offences. Thereafter, the vehicles were used in the course of burglaries of commercial premises. 5. In some cases the stolen vehicles were used in order to effect the offence through the doors or windows of premises. In other cases, sometimes the same cases, other vehicles were used for purposes of escaping from the scene. On most occasions the offenders wore balaclavas or masks in the course of the offending. 6. A great deal of damage was done and a large amount of property was taken. Although Miss Whitehouse, on behalf of Attorney, suggests that that total combined value of damage caused and property stolen may have approached £1 million, we shall proceed on the lesser figures that appear in the papers, namely that the damage amounted to some £116,000, and the value of the property taken to £170,000. We do so in the knowledge that those figures are underestimates, not least because in relation to some of the offences, where clearly damage was done to property that was taken, no specific figures are known to us. 7. When the matter came before the learned judge, it is plain that discussions had taken place between prosecution and defence over a substantial period of time as to possible bases of plea. Although the five offenders each pleaded to both conspiracies, what in fact occurred was that they admitted involvement in limited overt acts carried out in the course of the conspiracies. Thus, Callaghan admitted being involved in four burglaries, two of which were ram raids, five thefts or attempted thefts of vehicles, one theft of a computer and two offences of making off without payment as his contribution to the conspiracies. The offences of making off without payment were ones of fuelling cars at service stations. Brattley admitted involvement in four of the burglaries, three of which were described as ram raids together with the theft of one vehicle. 8. Boylan admitted involvement in three burglaries, all of them ram raids, and five thefts of motor vehicles. Buike accepted involvement in three burglaries, again all of them ram raids, together with three thefts of motor vehicles. Smith admitted involvement in two burglaries, one of which was a ram raid, together with thefts of four motor vehicles. 9. As it happened he had already served a sentence of 6 months' imprisonment in relation to the theft of one of the vehicles that formed part of the overall allegation of conspiracy. That is the explanation for his having received a shorter sentence than Brattley, Boylan and Buike, the 6 months having been deducted from the two-and-a-half years that was imposed upon each of them, producing the sentence of 2 years in his case. 10. It is necessary to set out the history of this crime wave, which afflicted the city of Leeds between September 2005 and January 2006. The offences really come in groups. The first group of offences involved the theft of a Vauxhall Vectra, on 8th September. The keys to it had been stolen in a domestic burglary. Four days later, a Cherokee Jeep was stolen from a carpark. Later that day the Vectra was used in a ram raid at Otto Bock Healthcare. A computer monitor and digital camera were stolen. The following day the Vectra and the Cherokee Jeep were used in a ram raid at the House of Fraser store in Briggate in Leeds City Centre. The damage on this that occasion was £38,000 worth and £12,000 worth of goods were taken. Brattley accepted involvement in that offence with two or three unnamed persons. 11. The next group of offences began with theft of a Vauxhall Tigra car on 5th October. Again, its keys had been stolen in a domestic burglary. It was used as the getaway car following the theft of computer equipment from a van on 6th October. Callaghan accepted involvement in that offence and also with an offence of making off without payment when he filled it with petrol on 6th October. Chronologically the next date of significance is that Boylan, who had been out of the country in September and early October returned on 17th October. We mention that to illustrate the point made on behalf of all the offenders in different ways that they were not all available from participation in the full extent of the conspiracy at all times and that is why we are invited to approach their offending on the basis that, although they had pleaded guilty to conspiracies, they have done so on the basis of limited participation. 12. The next group of offences began on 24th October, when the keys of a Toyota Corolla were stolen in the course of a domestic burglary. On the same day it was used in the attempted theft of another vehicle, outside a leisure centre, at which time a security guard was threatened with a tool. Callaghan accepts involvement in the attempted theft of that second vehicle and also with making off without payment when he filled it up with petrol on 30th October. 13. The next offences to which the prosecution make reference occurred between 24th and 31st October. The keys to a Fiat Punto were stolen in a domestic burglary. The car was then stolen. On 30th October, a Nissan Skyline was stolen from a street in Leeds. On 31st October the Fiat Punto was used in the course of a ram raid at Currys electrical store at a retail park in Leeds City centre. The Nissan Skyline was used a getaway vehicle with electrical goods to a total value of £22,000. A security guard had been attacked with a crook lock during the commission of the offence. None of the offenders before the court accepted participation in that matter. 14. There was then a group of offences which occurred on 8th November. A Honda Civic was stolen from the carpark of a cinema. Boylan accepts involvement in that. Another Honda Civic was stolen from another car park on the same day. Later, both vehicles were used in the course of a ram raid offence at a garage in Leeds, one to gain forcible access to the premises, the other to transport the offenders away from the scene. Boylan accepts involvement in all of that. 15. We then move to 14th November when a Vauxhall Frontera was stolen from the carpark at the White Rose shopping centre. It was later used in a burglary at Staples Store on Kirkstall Road, where damage was caused in the effecting of the burglary but the vehicle was not used forcibly on the premises. It was however used as a gateway vehicle. 16. Until this time Buike had been serving a sentence of imprisonment and so was not involved in any activity prior to 17th November, his release date. However, he became involved the very next day because on 18th November another Vauxhall Frontera was stolen from the carpark at the cinema. Boylan and Buike accept involvement in that. It was then used later the same day in the course of a ram raid at PC World when satellite navigation systems and a flat screen monitor were stolen. Buike accepts responsibility for that. 17. Two vehicles were then stolen between 18th November and 21st November, a Ford Transit van and a Renault Wagon. They were stolen in the course of a burglary at a warehouse in Leeds and Callaghan admits responsibility for that. The Renault Wagon appears a little later in the events. 18. The 21st November was an eventful day. A BMW convertible was stolen from premises in Hunslet, as the owner was filling the windscreen washer. Buike was the thief. On the same day a Mazda was stolen from a car rental company by Boylan and a Honda Civic was stolen from a street in Leeds by Callaghan. Still on the same day, the 21st November, the Renault Wagon, to which we have referred, was used in the course of a ram raid to break down security bollards outside Currys electrical store. All three of the vehicles that had been stolen earlier on 21st November were also used in the course of the commission of that offence or in the transportation of the offenders from the scene. Almost £24,000 worth of electrical goods were stolen. Boylan and Buike accept responsibility for that. 19. Two days later, on 23rd November a Vauxhall Frontera was stolen from a casino car park by Boylan and it was on the same day used to break down the doors of the House of Fraser in Briggate, causing damage of £30,000. The Mazda car that had been stolen on 21st November was used to transport the offenders away from the scene. Boylan was involved in all of that. 20. On 29th November Callaghan, Brattley and Boylan were arrested but were released on bail. On 2nd December, Smith was released from custody having served a sentence of 21 months' detention. He was soon to become involved in this offending. 21. There was next a group of offences on 8th December. The BMW was stolen from a cinema complex car park by the recently released Smith. A Range Rover Freelander was stolen from a carpark in the city centre. The Frontera was then used to breakdown the front window of Jessops Store in Wade Lane in the city centre and the Freelander and BMW were also used in the course of the commission of the offence. £40,000 worth of damage was caused and photographic equipment valued at £16,000 was stolen. Smith accepted involvement in that offence. 22. The following they, on 9th December, Brattley, Buike and Smith were arrested. Again, they were released on bail. 23. On 11th December a Renault Espace was stolen in York Road and it was involved in the attempted theft of a Subaru Imprezza in the car park of Ikea. Later the same day the Renault Espace was used in a robbery at a garage when a car was taken, but none of the offenders accepts responsibility for that. 24. We next go to the 12th December. A Peugeot was stolen from outside a newsagents by Buike. In the early hours of 13th December, there was an attempt to smash into a restaurant by the occupants of that vehicle. Twenty minutes later there was a ram raid at the premises of Richer Sounds at Vicar Lane in the city centre. A Vauxhall Corsa and the Peugeot were used in the commission of that offence. Goods to the value of £6,000 were stolen. Buike pleaded guilty to that offence albeit on a separate indictment. He was arrested that day and thereafter remained in custody. That was the second matter of burglary for which he received a concurrent sentence. 25. The next group of offences occurred on 14th December. A Suzuki Vitara was stolen from a carpark and a Ford Mondeo was stolen from outside a public house. A Range Rover was also stolen from the carpark of the White Rose shopping centre. Smith accepted that he was involved in that theft. 26. On the same day there was a burglary at Mitchells Camping Store in Wakefield, in which the Suzuki, Range Rover and Ford Mondeo were used for transport. That burglary was not a ram raid, it was carried out by way of a hole made in the roof of the building and £35,000 worth of clothing was stolen. Smith accepts involvement. 27. A week later, on 21st December, a BMW was stolen from outside a launderette by Smith, and a Subaru Imprezza was stolen from the car park of the White Rose shopping centre. That night police officers saw three men pushing it along a street in Leeds city centre. The men ran off. Boylan and Smith were found hiding nearby. A balaclava was found in the area and Boylan's DNA was found on skin flakes within the Balaclava. Fibres from Smith's tracksuit were found on the seat of the vehicle. That was the offence with which Smith was charged separately, with offences of aggravated vehicle taking, going equipped for burglary and driving while disqualified and for that he received a sentence of 6 months' imprisonment in the Magistrates' Court on 8th June 2006. 28. Following a break for Christmas and the New Year, offending began again on 3rd January 2006, when the keys for a Ford Focus were stolen in the course of a domestic burglary, after which the car itself was stolen. On 6th January, there was a burglary at Sally Hair and Beauty Supplies. Amplifiers which had been taken from the Ford Focus were used to smash the window of the front door and property to the value of £5,319 was stolen. Callaghan and Brattley were involved in that. 29. The next day there was a burglary at S & P Metal Polishers. The shutters of the front doors were forced and internal windows were smashed. The damage would cost £2,000 to repair. Various items were stolen. The Ford Focus was used in the course of that offence, which Callaghan and Brattley admit. 30. The final offences occurred also on 7th January. A Vauxhall Frontera was stolen from outside a cinema by Brattley. It was then used in the course of a ram raid at Cardigan Mills Business Centre. Damage was done to the value of £3,000, and property worth £2,500 was stolen. Callaghan and Brattley admit responsibility. That then is a brief description of this calender of extremely serious crime. 31. Notwithstanding their relative youth, all five offenders had substantial numbers of previous convictions. Callaghan had ten previous court appearances in relation to 21 offences, which included the taking of motor vehicles and commercial burglaries, one of which involved a ram raid. 32. Brattley had appeared on eight previous occasions for a total of 13 offences, the majority of which were aggravated vehicle taking and commercial burglaries. Three of the burglaries were of a ram raid type, involving stolen vehicles. 33. Boylan had been convicted on six previous occasions for a total of nine offences. Almost all related to the taking of vehicles and commercial burglaries including one ram raid offence. 34. Buike had appeared on 11 previous occasions for a total of 23 offences. They included commercial burglaries and the taking of vehicles. There was one ram raid type offence. 35. Smith had been before the courts on 19 previous occasions in respect of 39 offences. They included a number of offences of theft of and from motor vehicles and two commercial burglaries. 36. It is next necessary to say something about offending of this kind and, in particular, about ram raiding. Such offences are burglaries of a particularly serious kind. Miss Whitehouse has referred us to three relevant authorities. In R v Percy (1993) 14 Cr App R(S) 10, giving the judgment of this Court, of which the then Lord Chief Justice was a member, Macpherson J referred to the gravity of this kind of offending. He said: "...inevitably cars are stolen and damaged. Property is damaged. An offence of this kind is an affront to the public who are present. Furthermore, there are risks that people would be injured in the commission of the crime and in the escape of those who go off in the high powered car which is always used as the getaway vehicle." A sentence of 5 years, following a plea of guilty to burglary, for a single ram raid was upheld. The Court said: "This was a heavy sentence, but it was heavy crime: much closer to armed robbery than ordinary theft." 37. Lest it be thought that that contains a slight element of hyperbole, we refer next to the case of R v Byrne & Ors (1995) 16 Cr App R (S) 140 . Again, the offenders were sentenced to 5 years' imprisonment for a single ram raid offence following pleas of guilty. We acknowledge that it was different in style from the offences in the present case, in that it was committed by older men who stole a JCB digger from a construction site and used it to remove an automated cash machine from the wall of a building society. Nevertheless, Lord Taylor CJ took the opportunity to express some general views about ram raiding offences, which he described as prevalent and extremely serious. He added at page 142: "The gravity can be stated in this way. First, it is almost always a composite offence: it involves the theft of other vehicles before the main theft is attempted. Secondly, it involves targeting a particular prize, and planning the offence with deliberation ... Thirdly, whatever may have been obtained by thieves by this method... there will almost always be serious damage to property ... A further aggravating feature is that this type of offence is aimed at defeating even the best security... It is a kind of military operation against whatever security precautions may be applied to any building. Finally, there is the element of breach of the peace. In middle of the night... there was an operation going on which roused people and put some of them in fear. It is an affront to civilised society; it is outrageous offence. It transcends the ordinary type of attempted theft." 38. There, the references to theft as opposed to burglary, derived from the fact, perhaps generously conceded, that the attack on the automated cash machine did not involve entry to the building. Once again the sentences of 5 years were upheld. They were described as "not a day too long." 39. Finally, we refer to R v Richardson and Brown [1998] 2 Cr App R(S) 87. That involved a single ram raid offence, again with the assistance of a stolen JCB and lorry which were used to attack a cash dispenser. His Honour Judge Clarke QC, as he then was, referred to Percy and to Byrne & Others . He described sentences of 5 years, following pleas of guilty as "richly deserved." He added that at page 90: "A real differential should in our judgment be maintained between even domestic burglaries of some gravity and determined commercial burglary of this sort on a bank, with vehicles and equipment such as were used in this offence." He later added that the sentence after a trial would have not yet been less than 7 years. 40. We accept that there are differences between those cases, particularly the latter two, and the present case but they are not necessarily differences which bespeak a difference in approach to sentencing. What can be characterised as sophistication in the latter two cases, may have been absent in the present case but, in another sense, that was more than made up for by the sheer persistence, aggression and recklessness of the offences which underlay the indictment with which we are concerned. We have considered those authorities. They seem to us to suggest that in the context of a single ram raid offence, a starting point in the region of or approaching 7 years, following a trial, is implicit in all of them. 41. In the course of her submissions, by reference to the document placed before the Court, Miss Whitehouse has referred to aggravating features in the present case. Of the five offenders all but Callaghan were on licence at the time of the commission of at least some of the offences. All were arrested during the currency of the conspiracy and released on bail but continued to offend whilst on bail. The damage to the property and the value of the property taken was high. The case was concerned with a plurality of offences committed over a period of 4 months. They reflected a significant degree of planning and were carried out, indeed, could only been carried out by a group acting together. 42. She submits that the mitigating factors were really limited to the timeliness of the pleas of guilty, for which full credit was due and the relative youth of the offenders who were aged between 18 and 22 at the time of the commission of the offences. 43. Neither Miss Whitehouse nor any of the counsel representing the offenders has suggested that the judge fell into any error in the differentials imposed in the sentencing of the five offenders. The key question is whether the sentences were unduly lenient because the judge simply underestimated the gravity of the offences and started with an imputed starting point which was too low. 44. Before we say any more of that, there is another aspect of the case which has been the subject of some debate at the Bar. Miss Whitehouse submits that these being offences of conspiracy, each of the offenders bears some responsibility for the offending of all the others, even when his role was more limited. She, of course, accepts that in the case of an offender who was unavailable for a period of the offending, by reason of being outside the country or in custody, that illustrates a reduced involvement, but she still advances the proposition to which we have referred in general terms. She does so by reference to Attorney-General's Reference Nos 52 and 53 of 2006 ( R v Toth and Rance ) [2006] EWCA Crim 2571 , where this Court, presided over by the President of the Queen's Bench Division, was concerned with a spate of offending over a period of time, subsumed under the charge of conspiracy. Giving the judgment, the President said at paragraph 9: "We shall, of course, look at the individual offences admitted by each of these offenders in the basis of plea, but we must emphasise at the outset that this was a wide-ranging conspiracy, in which there were a number of young men, who came together to terrorise -- no other word will do -- victims who happened to be chosen. For some time this group of young men was completely out of control, on the rampage, committing violent crime, and no doubt as each crime was committed, it encouraged them to commit the next one. The sentences on the individuals should reflect not only their participation in specific offences, but their involvement in the conspiracy, in the broadest sense. In brief, therefore, for as long as he was party to the conspiracy each conspirator sustained and supported the other conspirators in the crimes in which they did not personally participate. It was, truly, a conspiracy in the broadest sense." 45. Miss Whitehouse invites us to take a similar view of this case. Counsel for the offenders draw our attention to Attorney-General References Nos 60 and 67 of 2006 ( R v VC and VR ) [2006] EWCA Crim 2777 and by reference to paragraph 10 of the judgment of Hughes J invite us to categorise this case differently from the way in which the Court approached the conspiracy in Toth & Rance . 46. In the absence of the matters to which we shall shortly refer, it seems to us that there would have been every justification for treating the case precisely as the President treated the case in Toth & Rance . However, it is difficult to escape the impression in this case that there was at least tacit understanding between prosecution and the defence that the case should be approached on the basis of limited admissions of involvement in particular offences by specific offenders. No Newton hearing was sought and the judge appears to have acquiesced in that approach. For that reason, we restrain ourselves from approaching the matter in precisely the way described in Toth & Rance but nevertheless that ultimately provides little benefit to these offenders because, on any basis, we have to deal with them, in each case, on the basis of repetitive involvement in offences of this kind. We have already indicated precisely who accepted what. They all carried out this grave saga of offending, with multiple overt participations and there were the aggravating features, including offending whilst on licence and re-offending whilst on bail, to which Miss Whitehouse has referred and we have detailed. Thus, although we do not approach these young men on the basis that each of them was responsible, to some extent, for every offence committed in the sequence of events, and we take account, in particular, of the occasions when individual offenders were unavailable for offending either as a result of absence from the country or incarceration, nevertheless, it is readily apparent that this was multiple offending, repetitive offending on a grand scale. Therefore the benefit accruing from the classification of the case a little below that of Toth & Rance by way of the approach to conspiracy does not greatly benefit these offenders. 47. Having regard to all that we have said, we have no hesitation at all in concluding that the sentences imposed in Leeds were unduly lenient. Taking, as we do from the authorities, a starting point of or approaching of 7 years for a single offence, following a trial, that must be obvious. 48. We propose to accede to the application by the Attorney. We reject the submissions made on behalf of all offenders that the sentences, whilst lenient, were not unduly lenient and we reject the submission that even if they are unduly lenient, we ought not to interfere with them. In our judgment, even after so-called double jeopardy has been taken into account, these sentences fell massively short of the level which ought to have been imposed in each and every case. 49. We have taken into account the points made by counsel. They leave us with the clear impression, in all the cases, that the significant mitigation was that referred to by Miss Whitehouse, namely timely pleas of guilty and relative youth, although there are some small personal matters in relation to some, if not all offenders which we keep in mind even though it will no doubt be appreciated that they do not assist greatly in the fixing of the appropriate sentences. 50. We quash the sentences for the conspiracy in each and every case. In the case of Callaghan, in place of the sentence of three-and-a-half years' imprisonment, there will be a sentence of six-and-a-half years; in the case of Brattley, in place of the sentence of two-and-a-half years' detention there will be a sentence of 5 years' detention. In his case, we have specifically taken into account the fact that he alone of these offenders has been released from his sentence some 2 months ago. He therefore will have to return to prison and double jeopardy, in his case, is something to which more credit attaches than in any of the other cases where the offenders remain in custody. 51. In Boylan's case, the sentence of two-and-a-half years' detention will be increased to one of five-and-a-half years. There is a consecutive sentence of 4 months in his case and so the total becomes 5 years and 10 months. 52. In Buike's case, the sentence of two-and-a-half years will be increased to one of five-and-a-half years. In his case there is a consecutive sentence of 9 months and so the total sentence becomes one of 6 years and 3 months. 53. In Smith's case, the sentence of 2 years' imprisonment will be replaced by one of 4 years' imprisonment. We have accepted the principle of double jeopardy in all the cases, but for the reasons to which we have adverted, we do not think that any of those still in custody are entitled to a great deal of credit for that aspect of the case. 54. In the case of Brattley, the order of the Court will have to require him to surrender so as to resume his sentence. 55. MR BATISTE: Might I inquire if the same allowance is made under section 240 of the Criminal Justice Act for the time spent in custody. 56. MR JUSTICE MAURICE KAY: Certainly. 57. MISS WHITEHOUSE: May I make a minor correction to your Lordship's judgment. Your Lordship suggested that in the case of Buike he had been given a consecutive sentence of 9 months' imprisonment, in fact it was one of 6 months' imprisonment, so his total sentence is therefore one of 6 years, in my submission. Would your Lordship specify the time by which Mr Brattley should surrender. 58. MR JUSTICE MAURICE KAY: What is the usual order? 59. MISS WHITEHOUSE: 24 hours. 60. MR JUSTICE MAURICE KAY: 24 hours. He is on home detention curfew and there is no difficult in his attending. 61. MR BATISTE: I cannot argue with the time period. The police station he would surrender to would be Killingbeck police station, in Leeds. 62. MR JUSTICE MAURICE KAY: Thank you very much. 63. MR STUBBS: Can I come back to Buike and correct a direction of my learned friend. His sentence was two-and-a-half years with 3 months consecutive. 64. MR JUSTICE MAURICE KAY: Three months. 65. MR STUBBS: The sentencing remarks at page 5 "the consequence in your case Buike aggravating vehicle taking, driving whilst disqualified, 23 years old, your sentence I think will be the same as others, two-and-a-half years conspiracy for the aggravated vehicle take short extra sentence of the 3 months driving while disqualified 3 months disqualified from driving 2 years and 9 months so two-and-a-half years with 3 months consecutive." 66. MISS WHITEHOUSE: That is entirely right. 67. MR JUSTICE MAURICE KAY: We make the correction. Thank you very much.

```yaml citation: '[2007] EWCA Crim 3383' date: '2007-07-11' judges: - LORD JUSTICE MAURICE KAY - MR JUSTICE TUGENDHAT - SIR RICHARD CURTIS ```

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 3063 Case No: 2008/0444/B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Gloucester Crown Court His Honour Judge Tabor QC T20057163 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 December 2008 Before : LORD JUSTICE MOSES MR JUSTICE BURNETT and HIS HONOUR JUDGE MORRIS QC - - - - - - - - - - - - - - - - - - - - - Between : David Richard Tucker Appellant - and - The Crown Prosecution Service Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss A Brown (instructed by E B R Attridge ) for the Appellant Mr M I Worsley (instructed by Gloucestershire CPS ) for the Respondent Hearing dates : Tuesday 4 th November, 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moses : 1. On 4 November 2008 we announced our decision to allow this appellant’s appeal. We quashed his conviction for robbery and ordered his release. This judgment sets out our reasons for reaching this conclusion. 2. The appellant was convicted of robbery on 28 November 2005 at Gloucester Crown Court and sentenced to seven years’ imprisonment. The hearing before us consisted of an application for permission to appeal against conviction, for an extension of time in which to do so, and an application to call fresh evidence. The essential basis of the appeal related to a failure by the prosecution to disclose relevant evidence. Before considering whether to grant any of the applications or to allow the appeal, we heard evidence from the appellant’s partner, Jenny Moore, and Joanne Thomas. We heard, in response, evidence from three police officers, Sergeant Fletcher (at the time a Detective Constable), Detective Constable Whittaker (whose evidence was read) and Detective Constable Edgell, the officer in the case. 3. There are few relevant facts. Sometime shortly after 4.35 p.m. on 16 July 2005 it was alleged that this appellant, with a man called Milsom, his co-accused, robbed the complainant Miles in his own home. Milsom had in the past supplied Miles with cannabis. It was alleged that he entered through a window and opened the door to allow the appellant to enter. On entry, the appellant was alleged to have punched the complainant so hard on the face that he broke his cheekbone. All that was at stake was the sum of £10, said to be owed to Milsom for cannabis, a sum which the men took in coins from Miles’s house. 4. Although there was some identification evidence which suggested that the appellant was one of the attackers, the significant feature of this case for the purposes of the appeal is that the main evidence came from the appellant’s co-accused, Milsom. Seven days before the trial he pleaded guilty to the lesser offence of theft. After the trial he was sentenced to six months’ imprisonment. He said that he had met the appellant early in the day and that they had gone to Somerfield supermarket together to buy some cookies. Somerfield was but a few minutes’ walk from the address of the attack. He said that it was the appellant who was with him. 5. The complainant described one of his attackers but did not identify the appellant at a formal identification parade. Just before the attack, another witness, Laura Triggs, living in the same block of flats as the complainant, described the man with Milsom as having a Somerfield carrier bag. 6. An Inspector McFarlane examined CCTV footage from Somerfield and saw the images of two men between 4.28 and 4.35. He recognised one of them as the appellant. 7. This led to a ground for application which, in the light of our conclusion, we can deal with shortly. It was argued that the evidence of Inspector McFarlane, should not have been admitted. He had been told that it was thought that the appellant could be seen on the CCTV and he was expecting to see him. When questioned he was unable to answer what it was about the image of the person on the CCTV which led him to conclude that it was the appellant. A mark was visible on the chest of the man seen but it was not clear what it was. The officer knew that the appellant had a tattoo on his chest and it was the mark he saw on the CCTV which convinced him that his recognition was correct. But he had not seen the appellant for at least 2-2½ years and accepted that the footage showed a heavier build than that which he associated with the appellant. 8. Reliance was placed on Code D of PACE, although it was accepted that that had no application in the instant case. Inspector MacFarlane was not asked to look at the film for the purposes of giving identification evidence. The applicant argued that none of the safeguards to which this court drew attention in R v Dean Smith and Others [2008] EWCA Crim 1342 between paragraphs 63 and 73 were adopted in this case. In particular there was no record of what the officer’s reaction was as soon as he saw the CCTV or what it was about the appellant which had triggered his recognition. 9. In our judgement none of the safeguards to which Dean Smith refers has any application in this case. The officer was merely asked to see if he could recognise the appellant at a time when it was not proposed to call him to give any evidence at trial. When he did give evidence at trial the judge gave a clear reminder and warning, in his directions to the jury, that Inspector McFarlane was expecting to see the appellant when he looked at the CCTV. The jury was entitled to look at the footage to make its own assessment as to the clarity of the image which could be seen and, once it reached the conclusion that the image was sufficiently clear, entitled to see whether the defendant bore resemblance to the man seen on the CCTV. Had it been necessary, we would have refused permission to appeal on this ground. 10. But we turn to the fresh evidence and the emergence of material which was not disclosed to the defence at the time. 11. The appellant and Milsom were arrested at Milsom’s address after the attack, on 17 July 2005. Milsom had initially given “no comment” answers but later implicated the appellant as “the second male” and admitted his own involvement. The appellant denied being present, when interviewed, and gave details of alibi. In a subsequent interview, when confronted with Milsom’s account, he maintained his denials and stated:- “I can’t account for what or even why Terry [Milsom] has implicated me like that. I am not aware of any grievances that he has against me but I do know he is on a hell of a lot of prescribed medication. I also know he takes illegal drugs. The only thing I can think of is he knows I’m walking out of here and he’s not because he’s guilty of a whole host of things and I’m not and he’s bad-minded in trying to drag me down.” 12. Counsel on this appeal was not counsel at trial. Counsel at trial saw the appellant in conference in prison on 7 November 2005. At that conference the appellant told his barrister and solicitor that before the alleged robbery he had been providing the police with information about Milsom’s drug-dealing activities. He suspected that Milsom had found out the source of that information and suggested that Milsom had named the appellant as a means of seeking revenge. The appellant named DC Fletcher as the person to whom he provided information. Counsel advised his instructing solicitor to obtain a statement from that officer, DC Fletcher, in relation to those matters. He accepts his advice was, because of what he believed to be “sensitive” material, phrased in oblique terms. It is important to note that the appellant’s defence statement made no reference to these matters. 13. The trial was listed on 21 November 2005. On that day the appellant’s solicitor told counsel in the robing room that a member of the solicitor’s firm had contacted DC Fletcher but that she had denied having a “handler/informant” relationship with a Mr Tucker and had refused to make a statement. The solicitor and counsel visited the appellant in his cells and passed on this information. The appellant’s initial reaction was that DC Fletcher should nevertheless be called and cross-examined. Counsel explained that it was not be possible to call a witness and then to cross-examine him. Counsel recalls the appellant expressing his disappointment and frustration that the officer was not prepared to support his case. 14. It was this denial which appears to have led counsel not to pursue the line of defence that the reason Milsom, the accomplice, was giving evidence against the appellant was out of revenge once he had learned that the appellant had informed against him. Counsel remarks:- “As far as I was concerned at the time, the line of enquiry raised by Mr Tucker had been fully pursued and had not yielded fruit.” 15. This decision is criticised, particularly by the prosecution. In fact the defence had available evidence which would have supported the appellant’s case as to the motive the accomplice, Milsom, had for falsely accusing him. The appellant’s partner, Jenny Moore had told the appellant’s solicitors that she had reason to believe Milsom had a motive to blame the appellant. But, she says, she was told not to mention this because the police had denied that any information had been given to them by the appellant against Terry Milsom. Her friend, Joanne Thomas, says that she too was available to give evidence of Milsom’s motive but also says she was told not to mention this at trial for the same reason. 16. After the conviction, the appellant’s partner and Joanne Thomas sought to rectify the absence of any evidence of Milsom’s motive to lie. In a written statement dated 12 December 2007 Joanne Thomas said that in July 2005 in the Crown Public House in Tetbury Terry Milsom told her that he had:- “…stitched up Tucker for something he didn’t do (was) ( sic ) because that copper Edgell had told him that Tucker had given information to another copper about his heroin dealing.” Joanne Thomas, in a statement dated 12 December 2007 gave similar evidence which she repeated in a further statement dated 4 November 2008. Both gave oral evidence to this court of the incident in the public house at which Milsom allegedly confessed to “stitching up” the appellant. 17. In a written statement made to the police, dated 16 July 2008, Jenny Moore records her contact with the police. That statement makes it clear that the officers visiting her did not wish to discuss what is described as “a previous statement I made in respect of an incident at the Crown Inn Public House in 2005”. But the written statement goes on to say that Jenny Moore confirms that she attended at Stroud police station on 18 July 2005. This was while the appellant was still in custody. The statement records that she spoke to D.C. Fletcher and provided an alibi for the appellant and detail of another person who might have been with Milsom at the time of the robbery. She also confirms that she spoke to the appellant in custody. She says D.C. Fletcher made notes but she never made a statement. She confirms that she did not speak to D.C. Edgell on that date. 18. In a recent written statement signed on the date of the hearing, 4 th November 2008, Jenny Moore gives further evidence which had not emerged earlier. She now says that the contents of the statement she made to the police dated 16 July 2008 are true but adds:- “Mr Tucker contacted me whilst I was at the police station and told me that he had overheard a telephone conversation between Milsom and his sister Ali where Milsom had told her to get ready to pick him up from the station because he had blamed everything on Tucker because Mr Tucker had been providing information to the police about Milsom’s drug dealing. I understand that Mr Tucker overheard this conversation in the custody area of the police station.” This was the first time Jenny Moore had mentioned this conversation. She confirmed it in her oral evidence to us. 19. We turn then to the police evidence about this matter. The prosecution do not deny that the message, received by the defendant’s solicitors, was a denial that the appellant had been an informant. They cannot do otherwise. On Monday 21 November 2005, when the trial started at Gloucester Crown Court, D.C. Fletcher was off duty. She received a phone call from D.C. Whittaker, not the officer in the case, whilst she was at home. She was told that the defence barrister for the appellant:- “…wanted to know if I’d tasked Tucker to go undercover and provide information on Terry Milsom. I advised ‘no’ and was available to go to court if required.” She says she was so shocked by this question that she phoned D.C. Edgell, who, as the officer in the case, was at court. According to her statement, D.C. Edgell advised her that it was possible that the appellant might use that defence as “mitigation”. She had no direct contact with the defence team and went to work for the afternoon shift at 2.00 p.m. expecting to be called to court. But she was not. She gave evidence before us and we accept her evidence. D.C. Whittaker’s written statement recalls her shocked reaction at the suggestion. 20. We are not surprised that D.C. Fletcher, as she then was, should be shocked at the suggestion that this appellant was an informant. Anyone less suitable, without the most rigorous safeguards, would be hard to imagine. D.C. Fletcher would not have had the authority to make him an official informant, let alone to ask him to go “underground”. 21. Unfortunately the categorical denial concealed an important and significant truth. It is now apparent that D.C. Fletcher did have conversations with the appellant. Their contact derived from the admirable system, adopted in Gloucestershire and elsewhere, by which contact between released prisoners and the police is maintained for the purposes of preventing what had hitherto been prolific offending. The appellant had recently been released from prison and saw D.C. Fletcher on 20 June, 22 June, 24 June and 28 June 2005. On 28 June the appellant provided information to D.C. Fletcher on the telephone that Milsom was involved in drug-dealing. 22. Thus, when D.C. Fletcher was asked whether the appellant had been tasked to go undercover and provide information on Terry Milsom, although the answer “no” was correct, it was not the whole story. He had given some limited information about Milsom’s drug-dealing. But that message never got back to the defence with the consequence that the defence determined not to pursue a line by which they might suggest Milsom’s motive to lie. Of course, the defence would have had the great difficulty of suggesting on a more than fanciful basis that someone had told Milsom that the appellant had given information about his drug-dealing. 23. At the time this appeal was launched it was D.C. Edgell, the officer in the case, who was the prime suspect. He has always denied passing any information on to Milsom. D.C. Fletcher had told D.C. Edgell of the information she said she had received from the appellant’s partner, Jenny Moore. D.C. Edgell had no note of this and no recollection. He does not dispute that he spoke to D.C. Fletcher but, again in oral evidence before us, he could not recollect doing so. But there were records to show that he had at least looked on what are known as “Unity” records in relation both to Milsom and to the appellant. These records, as we have now seen, contain intelligence information but do not contain the source of that information. Those records are of the greatest significance in this case. 24. The information D.C. Fletcher received from Jenny Moore was recorded in an intelligence report. Initially we saw only a version, most of which was deleted. But we were, eventually, trusted to see the unexpurgated version. This reads:- “At 9.30 a.m. on 18 July 2005 I spoke to Jenny Moore…at Stroud Police station. She stated that she has heard second hand from…that Dave Tucker…is being set up by Terry Milsom and his two sisters…and …( our deletions ). They think that Tucker is going to try and take over Terry’s drug-dealing business. She also said Terry has been using Tucker’s name to collect his drugs money.” The raw intelligence also records Jenny Moore’s information about the alibi, namely that on Saturday 16 July 2005, the date of the attack, the appellant took her three dogs for a walk at about 3.30 p.m. and that he returned at about 4.45 p.m. The dogs were out of breath. Tucker had a wash and changed his top and went out at about 4.55 p.m., stating that he was going to the pub. 25. As we have said, this information was not put on the Unity system in full but it does record the assertion that the appellant was being set up by Terry Milsom and his two sisters on the grounds that he was going to try and take over Milsom’s drug-dealing business. 26. The prosecution and D.C. Edgell now accept that that material should have been disclosed. It was not disclosed at trial. It was not disclosed at this appeal, until we asked for it. Whilst it is true that it is not consistent with the evidence which we heard from the appellant’s partner or the friend Joanne Thomas, it provides powerful evidence of a motive. Whether it be true or not, it was material which the defence were entitled to see and which they could have deployed to suggest that the accomplice was giving false evidence because he feared that his drug-dealing business was going to be taken over. We acknowledge that such a line of defence was risky but at least the defence were entitled to know what the police had been told. 27. Furthermore, the defence were entitled to be told that the appellant had given information although on a more limited basis than, no doubt, the appellant wished his legal advisers and the jury to believe. But had D.C. Fletcher’s record of the information she was given been shown to the defence, together with the information that Jenny Moore was recorded as giving to the police, we have little doubt that the defence would not have so readily decided not to pursue this line of defence. 28. The prosecution have a number of trenchant criticisms of this fresh evidence. There are two particular features of the evidence on which they are entitled to rely. Firstly, the evidence which Jenny Moore now gives that the appellant had contacted her and told her what he had overheard in the conversation between the accomplice Milsom and his sister, was alleged to have been overheard before 9.30 a.m. on Monday 18 July 2005 when Jenny Moore spoke to D.C. Fletcher. But Milsom had only blamed Tucker later on the same morning, between 10.56 and 11.39. Secondly, if in truth the source of the information as to Milsom’s motive was the appellant himself as a result of what he had overheard, it is odd that when interviewed at his second interview on 18 July he made no reference to it, but merely suggested that Milsom did not want him to walk out free while he remained inside. 29. We do not need reach any concluded view as to the credibility of the witnesses called on behalf of the appellant. Two facts cannot be denied. Firstly, contrary to what the defence were told at the time of trial, the appellant had given information to D.C. Fletcher. Secondly, the prosecution never revealed to the defence the record containing important information as to a possible motive for Milsom to lie about the appellant. It is now accepted that that information should have been disclosed. 30. Mr Mark Worsley, on behalf of the prosecution, rightly points out that the material on which the defence could rely to suggest a motive for Milsom to lie was in their hands. There was nothing to stop either Jenny Moore or Joanne Thomas from giving the evidence they give now as to the incident in the Crown Public House. Nor, if Jenny Moore’s evidence now as to what she was told by the appellant is true, was there any reason why the appellant himself should not both at the time and subsequently speak of the telephone call he was alleged to have overheard. The prosecution fairly suggests that there was no good reason why this defence should not have been proffered at trial and asserts that defence counsel should not have been diverted by the misleading information he obtained from D.C. Fletcher. 31. Moreover, as prosecuting counsel points out, the process by which the information was obtained from D.C. Fletcher was incorrect and fraught with danger. There was no good reason why the defence statement did not properly set out the alleged motive. On the basis of that defence a request for particular discovery to support the allegation that the appellant was giving information to the police could have been sought. If there were inhibitions about broadcasting that information the application could have been made to the judge without the full glare of publicity. But since it was essential to the defence that Milsom had learnt that the appellant had given information about him it is difficult to see why secrecy needed to be maintained. In any event, it was wrong of the defence team to seek that information by so indirect a method. 32. Since the information was sought from D.C. Fletcher at home and since she properly communicated her answer to D.C. Edgell we can quite understand how it was that the full truth did not emerge. But it ought to have done. Moreover, D.C. Edgell ought, as he now fairly acknowledges, have kept a note of what he was told and communicated what he learnt from the records he investigated on Unity to the defence. It is not for this court to investigate why that did not happen. We need only record that D.C. Edgell did not strike us as being an officer who would deliberately seek to distort a trial by concealing disclosable information. Failure to reveal that which ought to have been disclosed seems as much a failure of communication as a deliberate attempt to pervert the proper course of the defence. But we need reach no concluded view as to what lay behind the lamentable failure of disclosure. 33. For lamentable it was. Significant material, important to the defence, was never revealed until the very last minute during this appeal. We still do not know why it was not revealed earlier during the preparation of the appeal. It is difficult to see that the details of those records required any secrecy whatever. It is absurd to think that the fact that the Gloucestershire Constabulary keep such records as those contained on Unity is a matter for secrecy. Surely everybody knows, not least the criminal fraternity in Gloucestershire, that records of intelligence are kept and disseminated. If a particular source needs to be concealed then it could be. But in this case the source even appeared on Unity. 34. The failure of disclosure was a significant irregularity. It is not possible to say precisely what impact it would have had on the jury. But it is likely that the information would have provided powerful support for the suggestion that the accomplice had reasons of his own for giving false evidence against the appellant. 35. There is one further aspect of non-disclosure which troubles us. We were told at the hearing of the appeal, without any advance notice, that one of the exhibits seized at the address of Milsom was a blue shirt. It was acknowledged by the prosecution that that shirt did not belong to Milsom. It was suggested that it belonged to the second man, the appellant. But there was evidence, which was never disclosed, that the shirt was subjected to DNA examination because there were spots of blood on it. The DNA examination established that the blood could not have come from the appellant. That evidence ought to have been disclosed. It never was. Indeed, it never became part of the grounds of the appeal. We allowed the applicant to amend the grounds of appeal. We regard this as another significant incident of non-disclosure. We do not know why the evidence was not disclosed but it ought to have been. Again, it was likely to have had a significant impact on the jury’s view of the appellant’s defence that he was not involved. 36. For these reasons, we granted an extension of time (764 days) for leave to appeal. We granted permission to appeal and, having heard the fresh evidence which we admit, and full argument, we allowed the appeal. The appellant has served most of his sentence and in those circumstances it would not have been right to order a fresh trial.

```yaml citation: '[2008] EWCA Crim 3063' date: '2008-12-19' judges: - LORD JUSTICE MOSES - HIS HONOUR JUDGE MORRIS QC ```

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Neutral Citation Number: [2018] EWCA Crim 756 No: 201704020/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 23 March 2018 B e f o r e : LORD JUSTICE BEAN MR JUSTICE SWEENEY HIS HONOUR JUDGE LEONARD QC (Sitting as a Judge of the CACD) R E G I N A v MARK RICHARD MORGAN 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 Bailey appeared on behalf of the Applicant Mr S Foster 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 application for an extension of time of 8 days for leave to appeal against conviction has been referred to the Full Court by the Registrar. 2. In July 2017 in the Crown Court at Portsmouth the applicant, who is now aged 45 and was on bail at the time, was tried before Mr Recorder Haggan QC and a jury for an offence of attempting to meet a child following sexual grooming. The venue arranged for the meeting was alleged to be Petersfield railway station. 3. At the outset of the trial, on Monday 24 July 2017, the Recorder directed the jury as to their duties, including directing them that if anything arose during the trial that caused concern they should immediately notify a court official so that the Recorder and counsel could try to resolve the concern. 4. The jury retired to consider their verdict on Thursday 27 July 2017. They were looked after in retirement by three jury bailiffs, Ms Smith, Ms De Luca and Ms Martin. There is some variation in recollection as to what happened. We proceed upon the version most favourable to the applicant. 5. Shortly before the jury were to deliver their verdicts they informed Ms Smith that they were concerned about the applicant and how he would react when they returned their verdict as he had been on the same train as them on a previous day, had followed a female juror on the platform, and had sat opposite her. When asked by Ms Smith why they had not said anything before, the jury said that they had mentioned it to a female (we presume a member of the court staff) but that nothing had been done. The jury then went into court and returned a unanimous guilty verdict. By that stage the Recorder had received a short note (which was not kept) from Ms Smith, saying that the jury were concerned as to how the applicant would react when the verdict was given. In the result, the Recorder understood that the jury had concerns about how the applicant might react to the verdict, but did not believe that anything untoward had happened. Therefore, he said nothing to the parties but adjourned sentence for a pre-sentence report and simply ordered the applicant to stay in the building until 4.00 pm - clearly so that the jury would be able to get away before him. Nevertheless, at least three female jurors waited for a male juror to accompany them to the railway station. 6. Later the Recorder returned to the courtroom to collect his laptop, at which point he spoke with Ms Smith, who gave him a more detailed account. The Recorder was concerned as to why what had happened at the station had not been brought to his attention, given that the jury had said that they had previously informed a female about it. However, neither Ms Smith nor Ms De Luca, who was also present by that stage, could help. The Recorder concluded that it was now too late for him to do anything about it, taking the view that he was functus officio. 7. However, on Monday 31 July 2017, by chance, the Recorder encountered the applicant's counsel and informed him of what had happened. In early August 2017 the Recorder telephoned the court manager at the Crown Court and asked her to make enquires of the jury bailiffs. Ms Smith provided her recollections in an e-mail dated 4 August 2017. In an e-mail dated the previous day Ms Martin explained that she was unable to provide any further information. 8. The sentencing hearing duly took place on 8 September 2017, by which time the applicant had lodged his application for leave to appeal. Nevertheless, and rightly, the Recorder proceeded to sentence, imposing a sentence of 18 months' imprisonment suspended for 24 months with a 40-day rehabilitation activity requirement. 9. We have been provided with transcripts of the Recorder's directions to the jury at the outset of the trial, and of the summing-up and verdict. In addition we have a copy of the court log for the whole of the trial, Ms Martin's e-mail dated 3 August 2017, Miss Smith's e-mail dated 4 August 2017, a letter from the Recorder dated 19 September 2017, setting out his recollections and witness statements from Ms De Luca dated 19 February 2018 and 5 March 2018 and a witness statement from Ms Smith dated 6 March 2017, in which she recollected, in contrast to her e-mail much closer to the time, that the jury had only mentioned the incident at the station after returning their verdict. 10. No complaint is or could be made as to any other aspect of the trial. In particular, the evidence (which largely consisted of e-mails, over a period of 2 days, between the applicant and a person who he believed was a female but was in fact a male who had created a fake profile and the fact that the applicant travelled twice to the station to meet a female) was strong, and the summing-up was clear and fair. Equally what happened in relation to the jury is, in our view, now sufficiently clear and no further evidence is required. 11. We must therefore decide whether to grant leave to appeal, which involves consideration of whether it is arguable that what happened made the applicant's conviction unsafe. 12. On behalf the applicant Mr Bailey points out that, on occasion during the trial, the applicant made comment from the dock in response to the evidence, albeit not directed to the jury, Against that background, Mr Bailey argues that what should have happened was that the matter should have been brought to the attention of the Recorder, that he should then have investigated it, and that he should have put any jurors who were concerned at ease by taking any appropriate steps. 13. Mr Bailey indicated that he had taken instructions from the applicant on the issue, that the applicant is short sighted, and that his instructions were that the applicant was wholly unaware, if he did, of having either followed or sat close to a juror. Nevertheless, and although accepting that if the applicant did not appreciate that he was sitting near to a juror, he had made no sort of approach to the juror, Mr Bailey submits that an irregularity occurred which makes the conviction arguably unsafe. 14. We disagree. It seems to us that it was entirely understandable and natural for the jury, who had realised that they (or some of them) were using the same public transport as the defendant, to be concerned about the possible reaction by him (given his conduct in court during the trial) to their guilty verdict. Accordingly, it was, in our judgment, equally understandable that they should have raised the concern. Thus, although it was unfortunate that their original concern was not communicated to the Recorder, what happened causes no arguable doubt whatsoever to be cast upon the safety of the conviction which, we repeat, was returned against the background of a strong case on essentially indisputable evidence. 15. In those circumstances this 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

```yaml citation: '[2018] EWCA Crim 756' date: '2018-03-23' judges: - LORD JUSTICE BEAN - MR JUSTICE SWEENEY - HIS HONOUR JUDGE LEONARD 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: 200306002/D2 Neutral Citation Number: [2005] EWCA Crim 1021 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 12th April 2005 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE TUGENDHAT SIR DOUGLAS BROWN - - - - - - - R E G I N A -v- NICHOLAS FARNELL - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR T OWEN QC & MR R TROWLER appeared on behalf of the APPELLANT MR G BEBB QC appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: On 22nd March 1996 in the Crown Court at Winchester, before Ognall J and a jury, the appellant was convicted of murder. Subsequently Thomas J refused leave to appeal against conviction and the application was not renewed. 2. The grounds before Thomas J contained no reference to either the trial judge's direction on provocation or to the trial counsel's decision not to rely on the defence of provocation which forms the basis of the appeal before this Court now. 3. An application was made to the Criminal Cases Review Commission in June 1997. Thereafter the commission declined, on two occasions, to refer the conviction to the Court of Appeal. 4. The appellant sought a judicial review of this decision. On 15th April 2003 Mitchell J and Kay J sitting in the Divisional Court quashed the Commission's decision not to refer the appellant's conviction and remitted the case back for reconsideration. Mitchell J gave a substantial judgment explaining why, in his view, the Criminal Cases Review Commission had erred Kay J agreed. Thereafter the Commission referred the matter back to this Court. 5. In Part 1 of the Statement of Reasons the Commission helpfully summarises the facts and evidence in the case. For our purposes it is sufficient if we merely set out paragraphs 1.1 of the Statement through to 1.11: "At about 10 am on 6th May 1995, Mr Farnell was driving to buy a newspaper when he saw his nextdoor-but-one neighbours, Mr and Mrs Pottage, drive past. Mr Farnell turned round and followed them back to their house in order to confront them about the noise caused by their puppy barking. He drew up behind their car, blocking them in. An argument ensued during which Mr Pottage said "I'm losing my temper now just fuck off." Mr Farnell replied: "I am not worried about you losing your temper," walked back to the passenger side of his car and returned carrying a crowbar. Evidence was given that Mr Farnell said to Mr Pottage "You want some do yah?" before striking him with the crowbar once on the side of the head, knocking him unconscious. Mr Pottage's head struck the pavement, resulting in the jury that subsequently caused his death. A number of people arrived at the scene. One of the neighbours asked Mr Farnell why he had done it and he replied "Because I lost my fucking temper." When the police arrived, he told them "We're neighbours and it was all over a dog. We had a huge argument, I was already uptight and I just flipped and hit him over the head." Mr Pottage went into a comma and died on 10th May 1995 after a decision was taken that no further treatment would assist his condition and that the ventilator should be removed. During his interviews with the police, Mr Farnell indicated that he had wanted to have a conversation with Pottage about the dog but that he was told to "F... off." Mr Farnell claim: "...I felt that Bill was about to do something, I thought he was going to hit me, okay? I went, my heart was beating ten to the dozen, I was, I was very stressed and very nervous because I am not used to confrontations with people anyway. So I walked round to my car and got a crow bar... they both started jeering at me and saying 'Oh you're not going to use that' and laughing... and I just pick[ed] it up and hit him in the neck with the end of it. Don't know why, and I, from the start I never intend to cause him any harm. I wanted to have it out with him, and have a man to man talk about it, and I just ended up doing that, I don't know why." When the police asked Mr Farnell why he had gone to get a crowbar he said: "I wanted Bill and Christine to pay attention to what I was saying, but all they did was laugh and taunt me... I was frustrated. All the anger and frustration that had built up in me over a period of weeks, months, over various things, came to a head at that point." He said that he had no intention of using the crowbar: "No definitely not. I couldn't. I've never been a person of [sic] fighting or confrontations. I couldn't imagine myself hitting somebody or something like that causing injury" (Summing-up, page 23B-E). "I intended to show it to Bill and Christine so they would take me seriously. I was not angry, just frustrated. I did not intend to hit anybody. I had not lost my temper." (page 29B-C) Mr Farnell pleaded not guilty to murder but guilty to manslaughter on the grounds of diminished responsibility. At a trial in December 1995, the jury was unable to glee a verdict and was discharged. Mr Farnell was re-tried in March 1996. At the re-trial, the defence case was one of diminished responsibility due to depression. Four psychiatrists gave evidence at the trial: Dr Mendelson and Dr Gordon for the defence; Dr Stone and Dr Callinan for the Crown. Dr Mendelson considered that "this was a man with minor personal difficulty, but those problems occasion by his personality have never been serious. He was bullied and the subject of some deration at school. He was normally on what I know far from aggressive, and I would deduce that his temper, from the history I had, had never led him to significant violence before. He was becoming increasingly depressed over the preceding two years to May 1996. He was miserable, irritable, sleepless, lacking in energy, and evincing a progressive social withdrawal; and so far as his professed intolerance of noise is concerned that is a significant characteristic of depression. He felt that Mr Pottage was being aggressive, insulting and derisive to him and that that behaviour, coloured by his depression, led him to feel that he was being particularly belittled because one of the effects of depression is that it tends to make the person who suffers from it magnify and distort insults or perceived insults" (Summing-up page 40B-41A). Dr Gordon testified that Mr Farnell had had a depressive illness for perhaps as long as five years. This "was of a severity to amount to an abnormality of mind and such as substantially to impair his mental responsibility for his actions." He considered that Mr Farnell had been suffering from moderate depression "which severely restricted his capacity to control his action." Dr Gordon conceded that Mr Farnell's GP had not given him any treatment when he had complained of feeling depressed previously. (Summing-uping up, page 43F-45A). Mr Callinan took the view that Mr Farnell had a condition akin to, but less severe than, depression called dysthymia. "These symptoms did not constitute a mental illness. Simply put, I did not feel that his symptoms ever reached a level which would interfere with his functioning; that is, his ability to manage his everyday affairs... [T]hese symptoms occur commonly in the general population and did not require psychiatric intervention... I found no evidence of clinical depression." (Summing-up page 35D- 36A). The question of abnormality of mind did not even reach "first base." (page 11F). Dr Stone was "prepared to concede... that in the light of his description of his state of mind for the last month preceding the 6th May, his state may arguably be regarded as 'an abnormality of mind'." He concluded, however, "it was not in my opinion severe enough substantially...to diminish his mental responsibility for his actions. It was too mild a depression...to account for or to explain what he did on the 6th May." (Summing-up, page 37G to 39G)" 6. When summing-up the case to the jury Ognall J gave the jury directions on the issue of provocation. He directed the jury to consider whether the allegedly provoking conduct in fact caused the defendant to lose his self-control. He had told the jury that the burden was upon the prosecution to disprove provocation. 7. Before us Mr Bebb accepted that there was evidence upon which a reasonable jury could properly find that the appellant had been provoked, whether by things done or by things said or by both together, to lose his self-control. That concession, which, in our view, was rightly made, is important when considering what happened thereafter in the summing-up. 8. The judge set out a second question, which it is not necessary for us to repeat, and then moved to a third question: "Might that conduct have caused a reasonable person who had lost his self-control to react and do as this defendant did in striking Mr Pottage with the crowbar?" The judge then went on to say: "...before I read further you will remember that the defence in this case in their closing address explicitly accepted that no reasonable person even if provoked by the Pottages' demeanour or response -- you remember the taunting, the disparaging of him, the making little of him, the question: 'What are you going do with that?' when he appeared with the crowbar -- the defence explicably accept that whatever your view as to the nature of the Pottages' response, no reasonable person would or might have reacted to it as this accused did in the circumstances; that is, by taking this crowbar and striking Mr Pottage as he did. In those circumstances, whilst of course as I have told you already it is my clear duty to leave the matter for you, the jury, to decide, you perhaps will not be troubled by consideration of it very long." The judge then resumed his reading from his written test and reminded them of the third question. 9. In the course of submissions before us the prosecution made two other important concessions, again, in our view, rightly. The prosecution conceded that the summing-up was defective in the light of section 3 of the Homicide Act of 1967. By virtue of that section the question whether the provocation was enough to make a reasonable man to do as the did, must be left to be determined by the jury. In treating the matter in the way which he did, it is accepted that Ognall J did not give a direction that complied with section 3 (see for example, R v Whitfield (1976) 63 Cr App R(S) 39). If that were the only defect, then the result of this appeal might well have been different. 10. However, the prosecution also rightly accept that on the law, as it now stands, following the decision in R v Smith (Morgan) [2001] 1 AC 146 , the jury should have been invited to consider the reasonable man test against the background of the medical evidence about the condition of the appellant. 11. It is not necessary for us to decide whether or not had counsel was right to make the concession having, regard to the state of the law as it was in 1996. Nor is it necessary for us to conduct an examination of that law to see whether or not the learned judge should have put the reasonable man question in a different form. What is clear is that this Court must approach that summing-up, having regard to the decision in Smith. That is made clear, for example, in the decision of this Court in R v Josephine Smith [2002] EWCA Crim 261 . 12. There was before us an application to call fresh evidence relating to the mental condition of the defendant at the time of the killing. It has not been necessary for us to hear that evidence. We take the view that there was sufficient evidence before the jury, from the experts, particularly those called on behalf of the defendant, that if Morgan Smith had been decided before 1996, then a more elaborate summing-up would have to have been given to the jury. 13. In the light of those two defects, and in the light of the decision in Josephine Smith , we have to ask ourselves whether or not the conviction is nonetheless safe. 14. The test that we have to apply is well-known. It can be found set out for example in paragraph 41 of Josephine Smith . As Rose LJ said in that case: "The jury's verdict might still have been the same if the jury, in that case, had had the evidence of Professor Eastman before them.But we cannot be sure this would have been so. It might reasonably have been different...." That test is taken from the decision of the House of Lords in Pendleton [2002] 1 WLR 72 . So absent those two defects, and in particular the second of the two defects, might the jury's verdict reasonably have been different? 15. Mr Bebb submits that the jury's verdict would have been the same because counsel would have made the same concession even if Morgan Smith had been decided before the hearing of the trial in 1996. 16. We do not accept that submission. In our view, it is quite clear that a verdict "might reasonably have been different" about the two defects. In those circumstances, as we have already announced, we quash the conviction for murder. 17. Having announced our decision, we asked Mr Bebb whether he sought a new trial. He told us that he did not. The appellant always admitted an unlawful killing and, in the circumstances of this case, the result of the quashing of the conviction is that a verdict of manslaughter, by reason of provocation, is substituted for that of murder. (Submissions re: sentence) 18. LORD JUSTICE HOOPER: We now turn to the issue of sentence. The appellant in 1996 had previous convictions for offences of dishonesty and had been sentenced to imprisonment. 19. Mr Owen refers us to a decision of this Court, Attorney-General's Reference No 19 of 1999 ( R v Marvin Wayne Kitchener ) [2000] 1 Cr App R(S) 287. With all respect to Mr Owen, the only relevant similarity between that case and the present one is that the dispute was over a barking dog. In that case, the offender had returned to his home with his family and was confronted by a group of neighbours who had gathered outside his house to protest over the continuous barking of his dog. Subsequently a fight broke out after he had armed himself with a knife. This is quite different. There was no confrontation of that kind. We have to be loyal to a notional jury verdict of manslaughter by reason of provocation. But nonetheless, sentencing the appellant on that basis, we take the view that the provocation was at very much the lower end of the scale. What the appellant did that day was appalling. 20. We take the view that the proper sentence would have been one of 8 years' imprisonment. We substitute for the sentence of life imprisonment, a sentence of 8 years' imprisonment. 21. MR OWEN: I am obliged. Could I raise one question of costs which often arises in Criminal Cases Review Commission cases? There was a quite considerable amount of work in preparing and presenting the application before the grant of legal aid in for the appeal itself. Clearly the costs of the Divisional Court have already been dealt with. Could I ask that you make a defendant's costs order to be taxed on the usual basis, in relation to the pre legal aid costs? 22. LORD JUSTICE HOOPER: Yes. Unless you have submissions, that is the normal order. It is a matter for the assessment officer to decide what are the proper costs to bring in to this case. 23. MR JUSTICE OWEN: I am obliged. 24. LORD JUSTICE HOOPER: Thank you both for your help.

```yaml citation: '[2005] EWCA Crim 1021' date: '2005-04-12' judges: - LORD JUSTICE HOOPER - MR JUSTICE TUGENDHAT - SIR DOUGLAS BROWN ```

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Neutral Citation Number: [2015] EWCA Crim 538 Case No: 201405678, 201405691, 201405692, 201405693, 201405695 & 201405696 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE BIRMINGHAM CROWN COURT HIS HONOUR JUDGE SIMON DREW QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 25/03/2015 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE HENDERSON and MR JUSTICE EDIS - - - - - - - - - - - - - - - - - - - - - Between : The Crown Appellant - and - Gary Quillan Christopher Hoole Peter Garrett Gregory Garrett Andrew Edmonson Neal Thompson Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Richard Sutton QC & Emma King (instructed by the Crown Prosecution Service ) for the Appellant Dafydd Enoch QC & Andrew Jebb (instructed by Quinn Melville ) for the 1st Respondent David Howker QC & James Tilbury (instructed by Farleys Solicitors LLP ) for the 2nd Respondent Jonathan Duffy (instructed by Frisby & Co Solicitors ) for the 3rd Respondent Martin Liddiard (instructed by Frisby & Co Solicitors ) for the 4th Respondent Ian Harris (instructed by Mark Jones & Partners ) for the 5th Respondent Keith Mitchell (instructed by Garstangs Burrows Bussin LLP ) for the 6th Respondent Hearing date : 11 December 2014 - - - - - - - - - - - - - - - - - - - - - Judgment This is the judgment of the court to which each of us has contributed Introduction 1. On 11 December 2014 we heard argument on this appeal by the prosecution against a ruling handed down on 5 December 2014 when His Honour Judge Simon Drew QC, sitting at the Birmingham Crown Court, upheld submissions of no case made by all nine defendants indicted in this case on all nine counts contained in the indictment. We announced our decision that the appeal would be dismissed and that reasons would be given in writing. These are those reasons. 2. The appeal is brought by the prosecution, by leave of the trial judge, under s.58 of the Criminal Justice Act 2003 ( CJA 2003 ). It relates only to the six defendants Gary Quillan, Christopher Hoole, Peter Garrett, Gregory Garrett, Andrew Edmondson, and Neal Thompson; they are the respondents to this application, but for convenience we shall refer to them as the defendants. The prosecution does not appeal against fact specific decisions that there was no case to answer in respect of three other defendants who were tried with the six with whom we are concerned. If the appeal had succeeded in respect of any defendant and any count, it was intended that the trial would continue before the same jury. 3. The rulings are dealt with in more detail at paragraphs 44 and following below, but involved one pure point of law in relation to counts 2 and 8, and a rather more mixed question of fact and law on counts 1 and 7. The trial started on 1 September but did not involve the jury until the end of September. The jury therefore spent two months hearing evidence on which it was not ultimately required to make a decision. 4. This judgment contains: i) General procedural guidance about the management of legal issues in complex cases; ii) Our reasons for deciding that the court had jurisdiction to hear this appeal, given the events on the day when the ruling was given in the Crown Court; iii) Our reasons for dismissing the appeal on the substantive issues. I PROCEDURAL GUIDANCE FOR COMPLEX CASES 5. The procedure under s.58 of the CJA 2003 requires this court, in circumstances of this kind, to reach decisions on issues in complex cases very quickly. Inevitably, the appeal court knows far less about the facts of the case than the trial judge who has listened to evidence over many weeks and who has had an opportunity throughout that time to reflect on the indictment and the sufficiency of the evidence which is said to support it. (a) The regime for preparatory hearings and determining issues before a trial starts 6. The regime for serious fraud cases allows for preparatory hearings under s.7 of the Criminal Justice Act 1987 . There is a similar regime for other long complex or serious cases under Part III ( ss.28 -38) of the Criminal Procedure and Investigations Act 1996 ( the 1996 Act ). Each of these regimes allows the trial judge to make a ruling as to any question of law relating to the case (among other things), and provides for a right of appeal against such rulings with leave to this court. 7. One of the purposes of making an order for a preparatory hearing is to assist the judge’s management of the trial. Deciding issues such as those which arise on this appeal in advance of the trial, using this procedure, is often better than the course which has been adopted in this case. It allows the trial to proceed uninterrupted, if that is the result of the determination of the legal issue. If there is an appeal, it allows this court to determine issues without the pressure of time created by the need to ensure that the jury which has spent weeks dealing with the case is not further inconvenienced. Even more importantly, if the decision is that the judge was right to stop the case, then no trial is required at all and enormous public expenditure is saved. 8. Criminal proceedings are burdensome for all involved, particularly witnesses, jurors and other members of the public who become embroiled in them. In addition such prosecutions are a very considerable burden on public finances; a misconceived prosecution is therefore a very serious matter. If counts in the indictment are misconceived in law it is essential that this is determined at the earliest stage. It is sometimes the case that submissions of the kind made by the defendants in this case are made as late as possible in the hope that by the time the prosecution appreciates its difficulties it will be too late to amend the indictment or to take other steps to remedy them. 9. This court has given guidance in a number of cases particularly in R v I [2010] 1 WLR 1125 , [2010] 1 Cr App R 10 as to the circumstances in which a preparatory hearing under Part III of the 1996 Act should be conducted. In giving the judgment of the court in R v I , the then Vice-President, Hughes LJ, said at paragraph 21: “Virtually the only reason for directing such a hearing nowadays is if the judge is going to have to give a ruling which ought to be the subject of an interlocutory appeal. Such rulings are few and far between and do not extend to most rulings of law.” 10. Whilst that is almost invariably the position, there may be special circumstances where a trial will be very long and very costly and where a ruling on a point of law in relation to the legal basis on which a count in the indictment is founded may determine whether or not a trial is required at all. In such a case such a point of law should be determined well before any trial starts. That is not the same thing as saying that it must be resolved in a preparatory hearing. There is a power in any case under s.40 of the 1996 Act to hold a pre-trial hearing and to decide any question of law relating to the case concerned. This procedure does not involve any of the technicalities which have caused some difficulty in relation to preparatory hearings and there is no interlocutory right of appeal (except where the prosecution treats any ruling as a terminating ruling). 11. A further benefit of the preparatory hearing procedure is that the prosecution is not required to undertake that a defendant is entitled to be acquitted if an appeal it brings against a ruling in a preparatory hearing fails. Cases of real complexity are crucially affected by the charges the prosecution chooses to prefer and the way in which it formulates its case. In this case, it is most important to emphasise our decision does not mean that there is no offence disclosed by the conduct of the defendants as alleged by the prosecution. That is not an issue which this court can or should decide. It simply means that the conduct as set out in the indictment does not disclose the offences charged. It is obviously of benefit for such issues to be determined in advance of the trial so that, if it can be fairly done, the prosecution has an opportunity to reflect on any adverse ruling and to consider whether an amendment to the indictment should be sought. (b) The conduct of such a hearing 12. In a case of complexity where such issues arise, the trial judge should first consider what rulings to make and when, and then decide whether to do so in a preparatory hearing. It is axiomatic that important rulings should be made as early as they properly can be. The early identification of such issues will require vigorous case management by the judge and the assistance of the parties. It is important to stress that those representing defendants in criminal proceedings owe a duty to the court which has always existed as a matter of law, and which is now to be found in Crim PR 1 and the corresponding provisions of the Consolidated Criminal Practice Direction. It is unnecessary for us to set those provisions out as: i) The proper performance of the duties under Crim PR 1 is a matter of professional conduct. ii) No advocate should be regarded as competent to conduct a criminal trial unless he is aware of those duties and of the other main provisions of the Rules and Consolidated Criminal Practice Direction. 13. In general, as the court observed at paragraph 37 of R v C [2010] EWCA Crim 2578 , [2011] 3 All E.R. 509 , [2011] Crim. L.R. 396, the court should make an order for a preparatory hearing well in advance of the anticipated hearing in accordance with Crim PR 15 so that the advocates’ minds are concentrated on the issues. Nonetheless, the judge can always, subject to the constraints set out in R v C and R v YDG [2013] 1 WLR 2014 , exceptionally at any stage during that hearing, decide to designate some or all of it as a preparatory hearing and give a ruling within that regime which can come to this court at the suit of the losing party. (c) The position in the present case 14. Those representing the defendants invited the judge to hold a preparatory hearing to consider, among other things, the form of the indictment and “Whether the pension scheme operated by Redswan fell within the terms of section 150(1) of the Finance Act 2004 ”. That is quite close to the point of law which the judge held on 5 December 2014, some months after the trial had begun, was fatal to counts 2 and 8, as will appear from our decision at paragraph 44 and following. 15. It is unnecessary to examine the way in which the case was being advanced at the date when the judge decided not to have a preparatory hearing. It is clear from the ruling which he gave when he decided not to do so that he was rightly concerned about the lack of a clear explanation of the indictment from the prosecution. He said “In my view the prosecution should reflect further upon the contents of the indictment but I do not think that it requires any ruling at this stage, let alone one made at a preparatory hearing.” 16. As events were to prove, this invitation most regrettably did not force the prosecution to identify its final case and thereby to identify the real legal issues before a great deal of public money had been expended on the trial. We sympathise with the judge, who was grappling with a case which rightly troubled him. The two rulings which we have seen, namely that on the application for a preparatory hearing and that on the submissions of no case, are both conspicuously clear and very carefully reasoned. It was not in any way the fault of the judge that this case turned out as it did. 17. Nonetheless it is our view that the argument which took place at the conclusion of the prosecution case should have been conducted within a preparatory hearing under Part III of the 1996 Act . It is clear that the judge was unfortunately faced with a regrettable and avoidable lack of precision as to the way in which the prosecution case was being put. It was not put at the outset in the same way as it was by the conclusion of its case at trial. This lack of precision by the prosecution team made the early definition of the crucial issue difficult; it is something that should not have happened and it would be desirable for lessons to be learnt. Despite the position in which the prosecution had put the judge, we nevertheless consider that the judge should have held a pre-trial hearing to require the prosecution to set out its case in law and to hear argument about whether it was well founded in law. It would therefore probably have served a valuable purpose and saved a considerable amount of public money. (d) The unnecessary representation by advocates on the appeal 18. Finally on matters of general significance we would observe that on the hearing of this appeal each defendant appeared by counsel. Mr Enoch QC and Mr Jebb appeared for Quillan, but made the necessary submissions on behalf of all defendants. The points were common to all and no possible conflict of interest arose. In these circumstances the court expects that counsel who do not wish to address the court will not attend. Arrangements must for the future in such cases be made for the appeal to be conducted by the preparation and presentation of one single set of submissions by one counsel, or, if the complexity of the case justifies it, by a team of two. II THE PRELIMINARY POINT: APPEALS AGAINST TERMINATING RULINGS (a) The contention of the defendants 19. Decisions of this court have established that in an appeal under s.58 of the CJA 2003 strict compliance with the requirements of that section by the prosecution is necessary before this court has jurisdiction to hear it. 20. In this case it is contended that the prosecution did not comply with those requirements because they did not, immediately after the ruling was made, either apply for an adjournment or inform the court that they intended to appeal under s.58(4) of the CJA 2003 . It is not suggested that they failed to give what has become known as the “acquittal undertaking” at or before the time when they informed the court that they intended to appeal as required by s.58(8) . It is therefore necessary to examine what happened. (b) The events at the Crown Court after the handing down of the ruling 21. After hearing submissions and taking some time to consider his ruling, the judge sent a draft to the parties by email on 4 December 2014. This was not subject to any embargo expressly, but was accompanied by a message from him which said that he might correct typographical errors and insert further citations from the Finance Act 2004 overnight, but the substance would not change. 22. The prosecution quite properly treated it as a draft and distributed it between counsel and the CPS lawyer with conduct of the case, but no further. The next morning a further corrected version was sent out by the judge. The prosecution properly decided not to give a copy of either draft to the representatives of Her Majesty’s Revenue and Customs (HMRC) before the hearing, in accordance with the way in which the court usually expects draft judgments to be treated. HMRC were not the prosecuting authority but had investigated this case and were initially interested in it. The effect of the ruling was to bring the case to an end. 23. When the court convened at about 10:44 the recording equipment did not work, but we have the benefit of an agreed note of what happened. It is as follows:- “ 10:44 Judge: I emailed out a draft judgment last night. I emailed a perfected version this morning, which differs only in that I have corrected some typos and also inserted relevant sections of the Finance Act. I formally hand down the perfected version. RS QC [Mr. Richard Sutton QC, Leading Counsel for the prosecution]: We did not forward the draft judgment emailed to counsel on to HMRC, as we took the view that was not appropriate to do so. HMRC have therefore not seen it. Now that Your Honour has handed it down, can I ask for 45 minutes to give HMRC an opportunity to read the judgment and consider it. I am not asking for an adjournment under section 58(4) , simply for time. [One Defence Counsel suggests one hour sotto voce ] RSQC: I hear an hour being suggested. I hope there will be a resolution by the end of the morning and that I will not be applying to adjourn. [Judge granted one hour]” 24. By the time the court next sat, the recording equipment had started to work; we have a transcript of what followed. The prosecution informed the court that it intended to appeal against the dismissal of counts 1, 2, 3, 7, 8 and 9 against the present six defendants but not against the ruling in the respect of the other three defendants in the trial and not in respect of counts 4, 5 and 6. After argument, the judge granted leave and ordered that the appeal be expedited. 25. Nothing at all happened between the first hearing and the second except that the prosecution team consulted with the HMRC lawyer and came to its decision. Mr Sutton told us that his team and the CPS lawyer had already decided what they were going to do. They needed only to acquaint HMRC with the terms of the ruling and to explain what they proposed to do about it. As HMRC was the investigating body in respect of this case, it stood in relation to the CPS and counsel in part in much the same position as the police do in other cases and in part as a complainant or victim as it was the body that had been the subject of the alleged fraud. 26. It is necessary only to quote the first part of the transcript. “ TRANSCRIPT FROM 11:41:58 – Court session begins at 11:49:00 HHJ Yes RSQC Your Honour has made…three rulings in relation to three of the defendants specifically on the sufficiency of evidence. So far as those rulings are concerned in relation to whether there is a sufficiency of evidence in relation Mr. Barlow, Mr. Andrews and Luke Thompson, the Crown is not wishing to appeal those. Insofar as the remainder of Your Honour’s ruling and insofar as it is based upon the ruling on count 1, count 2, count 3 including count 3 because, although we’ve taken a view on count 3 as to how that should be dealt with, we were not going to offer no evidence so we’re including that as well. In relation to Mr. Quillan, Mr. Hoole, Mr. Peter Garrett, Mr. Gregory Garrett, Mr. Andrew Edmondson we would wish to appeal, in relation to Your Honour’s ruling in relation count 7, 8 and 9, in relation to Mr. Hoole and Mr. Neal Thompson we would wish to appeal. We have…in the process of drafting a notice which will be served upon the court during the course of this morning I hope but of course today, in accordance with the Criminal Justice Act 2003 . HHJ Yes. RSQC It seemed to us that the first matter we had to deal with is informing court, we have now done that.” (c) The statutory provisions 27. Section 58(4) provides: “The prosecution may not appeal in respect of the ruling unless—” (a) following the making of the ruling, it— (i) informs the court that it intends to appeal, or (ii) requests an adjournment to consider whether to appeal, and (b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.” 28. This provision is supplemented by Part 67 of Crim PR (Crim PR 67):- “67.2. Decision to appeal (1) An appellant must tell the Crown Court judge of any decision to appeal— (a) immediately after the ruling against which the appellant wants to appeal; or (b) on the expiry of the time to decide whether to appeal allowed under paragraph (2). (2) If an appellant wants time to decide whether to appeal— (a) the appellant must ask the Crown Court judge immediately after the ruling; and (b) the general rule is that the judge must not require the appellant to decide there and then but instead must allow until the next business day.” (d) The case law 29. Crim PR 67 which governs the process, subject to the terms of the Act , reflects the way in which s.58(4) had been construed by this court on a number of occasions. In R. v T(N) [2010] EWCA Crim 711 ; [2010] 2 Cr App R 12 (p.84) Lord Judge CJ presiding over a 5 judge court, said (at [13]): “ Section 58(4) does not expressly require that this information should be made ‘immediately’ after the questioned ruling. … [The provisions of Crim PR 67] plainly represent a correct interpretation of legislation which requires that the court be informed of the intention to appeal, or, alternatively, that an adjournment should be requested for the question to be considered. Postponement of both these alternatives is not an option. In other words, unless the prosecution informs the court of its intention to appeal immediately following the making of the ruling, or immediately requests an adjournment to consider whether to appeal, this first pre-condition to an appeal is not fulfilled.” 30. In R v Mian [2010] 1 WLR 2655 , [2012] EWCA 792, [2012] 2 Cr App R 9 , the court gave further consideration to the application of the provision in the CJA 2003 and Crim PR 67 to the particular facts in that case. There had been a delay of 10 minutes between the giving of the ruling and the prosecutor complying with s.58(4) . During that time the judge had informed the defendant that as soon as the jury could be brought back into court he would be acquitted. 31. The court decided on the particular facts of the case that this was too long. Rix LJ referred at paragraph 9 to the decision of Lord Judge CJ in R v T(N) and to his own previous decision in R v C, M and H [2009] EWCA Crim 2614 about the need for an “acquittal agreement” to be given at the time that notice of intention to appeal was given. At paragraph 29, he went on to consider what the term “immediately after the ruling” meant. He said at paragraphs 28 and 30: “In our judgment it means there and then and in any event before anything important has happened. We think that it would be going too far to say that it means simultaneously with the conclusion of the ruling, and s.58(3) suggests that the requirement has functional rather than merely temporal bite. Otherwise there would be no need for any provision to stop the clock (in the absence of an adjournment). But plainly there is no room whatsoever for temporising. We are content to apply what was said in C, M and H at [43], while emphasising the plain need for urgency: If the alternative is an adjournment, there is plainly not much room for delay in the absence of an adjournment. Even so, it may be that the concept of immediacy cannot be reduced to split-second timing: however, it is only for as long as ‘the prosecution is able to take any steps under subsection (4)’ (see subsection (3)) that the clock is stopped: and there is plainly an argument that where something significant has first occurred, such as an acquittal, it becomes too late for the prosecution to inform the court of its intention to appeal or to seek an adjournment to prolong the time for it to make its decision. … 30. We would not over-emphasise in itself the way in which the judge was thus permitted to address the defendant, because it might be said that it was inherent in the judge's decision (of no case to answer) that the defendant would be entitled to be acquitted—at any rate barring an appeal. Even so, it is plainly going a stage further to tell a defendant that he will be acquitted as soon as the jury can be assembled, rather than to have to tell him that he would have been acquitted there and then but for the Crown's right to appeal. Perhaps there would be wisdom in judges being cautious not to jump the gun and anticipate even the most keyed up of prosecutors. It would be unfortunate if counsel were put in the position of having to interrupt the judge, where courtesy would naturally encourage counsel to defer to the judge's conduct of the proceedings, because the judge allowed no real opportunity to the prosecutor to gather his thoughts upon receiving the ruling. However, we emphasise: counsel can always ask for an adjournment to consider the impact of a ruling, and its validity, and to discuss such matters with those instructing him, and it takes very little to ask for an adjournment, even of a short while, for an initial consideration of the position; even if thereafter it is decided to ask for an adjournment until the following day.” (e) The Guidance given by the CPS 32. Unsurprisingly the Crown Prosecution Service has published guidance about the use of this right of appeal on its website. It explains the requirements very clearly and says under “Points to Consider”, the following:- “ Who is to exercise the right of appeal? Part 9 of the [ CJA 2003 ] provides the Crown Prosecution Service with formidable power to test the correctness of a judge's ruling. An appeal against a judge's ruling is a decision of such significance (generating a testing of the ruling to the Court of Appeal) that it should only be taken at an appropriate Area level by those with sufficient experience, responsibility and ownership of the consequences. It is the responsibility of the CCP or DCCP, to decide whether the right of appeal should be exercised, after consultation with the prosecution advocate and any other appropriate person such as the reviewing lawyer and the officer in the case. The CCP or DCCP may seek advice, if necessary, from the Principal Legal Advisor and, if appropriate, from the DPP. ……. It is important that prosecutors anticipate the possibility of adverse rulings in particularly important cases. Instructions to the prosecution advocate should identify or should request the prosecution advocate to identify possible adverse rulings. This will allow the CCP or DCCP to be notified in advance of a particular case and for the prosecution advocate to seek their preliminary view so that they are not consulted unexpectedly about a possible appeal on all occasions……. In the unlikely event that a judge refuses an adjournment and the prosecution advocate is unable to consult with the CCP or DCCP, the prosecution advocate must make the decision, following these guidelines, whether or not to appeal. The decision of the prosecution advocate should be reviewed by the CCP or DCCP as soon as possible to determine whether to proceed with or abandon the appeal. …….. How should the prosecution exercise the right of appeal? By giving the prosecution this right of appeal it is hoped that this in itself will deter a judge from giving an unreasonable ruling and as a result mean that there are very few appeals. Before launching an appeal, the prosecution will have to concede that should the appeal be lost, whether by refusal of leave or abandonment of the appeal, or if the Court of Appeal confirms the ruling, the accused will be acquitted. Even where the prosecution wins the appeal, it will be open to the Court of Appeal not to allow the case to resume or continue if it considers that the defendant could not receive a fair trial. The effect of the provisions will confine appeals to more serious cases where the prosecution have a very significant ground of complaint against the judge's findings. If it is not such a case leave to appeal is unlikely to be granted….. The right of appeal should not be exercised automatically where the ruling is wrong or the judge's discretion is incorrect. The right of appeal is to be exercised sparingly and judiciously in order to prevent unmeritorious appeals. In deciding whether or not to appeal a ruling the CCP or DCCP must be satisfied that the following criteria are met: That the ruling meets the statutory requirements set out in Crim PR 67. That there is a likelihood of the Court of Appeal reversing the ruling, and regardless of whether the Court of Appeal will find that the ruling is wrong or unreasonable that the public interest requires the prosecution to continue and that the court is likely to grant leave.” (f) Our conclusion 33. It is clear, in our view, that what constitutes immediate notice under s.58 and Crim PR 67 will depend upon the circumstances. The day after the ruling was sufficient compliance in O [2008] EWCA Crim 463 , because of the extraordinary events of the previous day. Ten minutes was, however, too long in Mian. Three observations about Mian are necessary. i) It was a case where the acquittal undertaking was not given at or before the time when the court was informed by the Crown that it intended to appeal. S.58(8) is quite specific in requiring compliance with that provision as to timing. That is not a failure which occurred in this case. ii) The court was not making new law in Mian , but applying the terms of s.58 and Crim PR 67 and previous decisions to the particular facts of the case . iii) The court in Mian made it clear that the issue did not turn on “split second timing.” The court in Mian noted that s.58(3) prevents the ruling from having effect while the prosecution is able to take any steps under s.58(4) and would be unnecessary if no such interval could ever occur. 34. Furthermore, it must be recalled that, although the prosecutor ultimately has to take the decision, a criminal trial also involves complainants or alleged victims whose interests and views are material. In such circumstances it is necessary to allow time for the prosecutor to carry out the necessary consultation before the decision is made. In R v Killick [2011] EWCA Crim 1608 the court held at paragraph 41 that in determining whether to prosecute, the prosecutor had to take into account three interests – that of the state, that of the defendant and that of the alleged victim. As the decision not to appeal is a decision which is final for the complainant or alleged victim, the prosecutor should consult and must be afforded a proper opportunity of doing so. 35. In each case therefore a careful examination of the facts is required to determine whether the prosecution has acted “immediately” in the context of the case under consideration. Much will depend on the complexity of the case, whether the ruling is oral or handed down and whether the prosecutor has had an opportunity of discussing the position with the alleged victim or other interested parties. In simple cases, such a discussion can well be had, as the CPS guidance suggests, before the ruling. In other cases, where the issues are complex and the ruling complex, time must be afforded for proper consultation; the word “immediately” must therefore allow time for such consultation. A sensible allowance for the requirements of justice and the practicalities of criminal trials must therefore be made. What the prosecution must not do is to “temporise” and cause delay except in accordance with s.58(4) and the provisions of Crim PR 67. 36. In this case the judge’s ruling was handed down in writing. It was 56 pages long. It contained important rulings of law and also decisions on questions of fact. It would have taken a long time to read in open court, which is the traditional way of ensuring that all relevant parties, as well as the public, are aware of the decision of the court. The prosecution agreed that it did not need to be read. As a consequence HMRC did not know what had happened or why. The prosecutor told us he wanted to tell them. That was not simply his desire; it was his duty to tell them and consult them before he was in a position to give the court notice of his intention to appeal. 37. We therefore agree with the submission made by the prosecution that where this means of promulgating a ruling is chosen, the court should allow time for it to be read by those interested who had not seen the draft and the views of those interested ascertained. In the present case this required at least an hour, if not significantly longer. The hearing should then be resumed as soon as possible after that proper and reasonable time has elapsed and it is at that time that the prosecution becomes under an obligation under s.58(4) and Crim PR 67 either to inform the court or seek an adjournment. It follows that Mr Sutton did comply with s.58(4) . 38. A good deal of court time would have been saved before us if the prosecution had simply asked for time under s.58(4) and Crim PR 67 to consider the position. A reasonable time would have been until the next business day – the default period set out in Crim PR 67. If they had, such a time would have been granted and no argument such as the present could have been mounted. The decision of Mr Sutton QC to say that he was not applying under s.58(4) has given rise to this argument. It appears likely that he had in mind that he wanted to tell the judge that it would not be necessary to adjourn under s.58(4) with the consequence under Crim PR 67(2)(b) that the judge must in general not require the appellant to decide there and then, but instead must generally allow until the next business day. Mr Sutton was saying, instead, that he could decide “there and then” but needed a short time to explain the ruling to the investigating body, which was also, after all, the alleged victim of counts 1 and 7 on the prosecution case and had to be consulted. 39. In our judgment the application for “time” which Mr Sutton made during the first hearing could, if necessary, be regarded in substance and effect, as an application under s.58(4) even though he said it was not. The obligation on the prosecution is either to inform the court that it intends to appeal or to request an adjournment to consider whether to appeal. It would be possible to view Mr Sutton QC’s statement as a request for an adjournment to enable a proposed appeal to be discussed with HMRC which had a legitimate interest in being consulted about it. His choice of words was plainly maladroit, but his intention entirely commendable. He was simply saying that he did not need the usual 24 hours but believed he could complete the matter before lunch. On the assumption, contrary to what we have already decided, that there was an obligation under s.58(4) and Crim PR 67 to inform the court before there had been a reasonable opportunity to read the judgment and consult HMRC, we consider that he did make an application to adjourn as required by the CJA 2003 during the first hearing. He set in motion a two stage process involving a short adjournment followed, only if necessary, by the longer adjournment envisaged by the Crim PR 67. That is what he meant when he said “I hope there will be a resolution by the end of the morning and that I will not be applying to adjourn.” 40. The third ground of our decision is that even if Mr Sutton failed to comply with s.58(4) during the first hearing at 10:44 and even if that was the time the obligation arose under s.58(4) , we are in no doubt that his compliance during the second hearing at 11:49 was “immediate”. In those circumstances we consider the whole course of conduct of Mr Sutton QC did amount to immediate compliance with the requirement to inform the court that he was intending to appeal or to seek an adjournment under s.58(4) . He did not temporise, rather the reverse. Had he wanted a 24 hour period to take a decision, this would have been available to him. Nothing that the court wished to do was in any way delayed by his chosen course. 41. The very strict approach to the word “immediate” was prompted by a concern that the prosecution might misuse its new right of appeal and flood this court with work which could not sensibly be accommodated. Trials might routinely be delayed while decisions were taken. In the experience of this court this has not happened. We have set out above the CPS Guidance on the subject. Prosecuting authorities are expected to use this power with restraint and discrimination. Where they do so, the court should be slow to decline to hear appeals by implying into the word “immediate” a wholly unrealistic approach in a complex case. This does not undermine the importance of compliance with the s.58 procedure, but does suggest that an approach which gives effect to the overriding objective of dealing with a case justly should be followed. 42. In the present case, the prosecution announced its concluded decision in a complex case within 1 hour of the handing down of the judgment which the judge had taken many days to write. As this case shows, careful compliance with the section and Crim PR 67(2) is not difficult to achieve and prevents this kind of problem from arising. It should be achievable and achieved. Any failure which causes any significant difficulty in the proceedings may well result in this court declining to entertain the appeal. 43. For these reasons we hold that this court did have jurisdiction to hear this appeal. We now move on to determine its merits. III: THE APPEAL ON THE MERITS (1) The nature of the case and evidence against the defendants (a) The structure of the indictment 44. As the indictment in this case was a complex document, we must at the outset encapsulate the allegations it made as briefly as we can in order to simplify what follows. Essentially the allegations against the defendants were that two schemes were set up (one following the other) with the dishonest intention of securing the payment of Income Tax relief at source (RAS) from HMRC by paying the same sum of money into pension schemes over and over again, each time causing the payment of tax relief from HMRC to the scheme. The circular nature of the transactions was set out in a chart which was shown to the jury as Figure 3.1 to the Report of Daniel Ryan of Berkeley Research Group as part of the prosecution case. 45. The indictment contained 9 counts. Counts 1-3 relate to Scheme 1 and counts 7-9 relate to Scheme 2. Counts 1 and 7 are allegations of Conspiracy to Defraud, count 1 in relation to Scheme 1 and count 7 in relation to Scheme 2. Counts 2 and 8 charge Conspiracy to Cheat, count 2 in relation to Scheme 1 and count 8 in relation to Scheme 2. Counts 3 and 9 are counts of Conspiracy to Launder Money, one in relation to each scheme. Counts 4-6 are charges of False Accounting; which were charged as alternatives to counts 1-3 and related specifically to the Pension Administrators of Scheme 1. 46. This appeal concerned only counts 1 and 7, and 2 and 8. That is because it was agreed that counts 3 and 9 depend upon the outcome of the submission on these counts, and because the judge ruled that there was no case to answer on counts 4, 5 and 6 on evidential grounds and there is no appeal against that part of his ruling. (b) The emergence of the prosecution case 47. After what appears to have been a great deal of debate at trial, the prosecution case eventually became clear during the submissions of no case. It was that the conspiracy to cheat counts (2 and 8) alleged that the schemes were fraudulent from the outset because the sums paid as RAS were never lawfully due. The conspiracy to defraud counts (1 and 7) were intended to cover the possibility that the RAS may have been paid lawfully, and then diverted because it was extracted from the pension schemes and not used to make any investment or provide any benefit to the supposed member of the scheme, but instead paid out to, among others, the defendants who had set up the schemes. The judge set out the history of the way in which the prosecution case achieved this degree of clarity in his ruling, but it is not necessary for us to rehearse it. (c) Counts 1 and 7; Counts 2 and 8 48. Counts 1 and 7 were in the following terms: “ Count One Statement of Offence CONSPIRACY TO DEFRAUD contrary to Common Law Particulars of Offence Gary Quillan, Christopher Hoole, Peter Garrett, Gregory Garrett, Andrew Edmondson, Mark Andrews and Richard Barlow between the 1 st . day of October 2006 and the 30 th . day of June 2009 conspired together and with others to defraud Her Majesty’s Commissioners of Revenue and Customs and such other persons as might be persuaded to provide monies or monies’ worth towards the provision of pensions by dishonestly diverting monies or monies’ worth that had been obtained to invest in pensions schemes to their own use. Count Seven Statement of Offence CONSPIRACY TO DEFRAUD contrary to Common Law Particulars of Offence Christopher Hoole, Neil Thompson and Luke Thompson, between the 1 st day of January 2008 and the 30 th . day of June 2009 conspired together and with others to defraud Her Majesty’s Commissioners of Revenue and Customs and such other persons as might be persuaded to provide monies towards the provision of pensions by dishonestly diverting monies or monies’ worth that had been obtained to invest in pensions schemes to their own use. 49. Counts 2 and 8 were in the following terms: “ Count Two Statement of Offence CONSPIRACY TO CHEAT contrary to s. 1 Criminal Law Act 1977 Particulars of Offence Gary Quillan, Christopher Hoole, Peter Garrett, Gregory Garrett, Andrew Edmondson, Mark Andrews and Richard Barlow between the 1 st . day of October 2006 and the 30 th . day of June 2009 fraudulently and to the prejudice of Her Majesty the Queen and the Commissioners of Revenue and Customs conspired together and with others to cheat Her Majesty the Queen and the Commissioners of Revenue and Customs of such monies or monies’ worth as might be obtained from the said Commissioners as tax relief on relievable pension contributions in respect of what purported to be pension schemes which, had the true nature of such schemes been disclosed, would not have been provided by the said Commissioners. Count Eight Statement of Offence CONSPIRACY TO CHEAT Contrary to s. 1 Criminal Law Act 1977 Particulars of Offence Christopher Hoole, Neil Thompson and Luke Thompson between the 1 st day of January 2008 and the 30 th . day of June 2009 fraudulently and to the prejudice of Her Majesty the Queen and the Commissioners of Revenue and Customs conspired together and with others to cheat Her Majesty the Queen and the Commissioners of Revenue and Customs of such monies or monies’ worth as could be obtained from the said Commissioners by way of tax relief in respect of what purported to be pension schemes which, had the true nature of such schemes been disclosed, would not have been provided by the said Commissioners. (d) The evidence as to how the schemes were set up and operated 50. We are indebted to the judge for his clear and careful analysis of the evidence which we can summarise as follows. 51. This case centred on the activities of Gary Quillan (“GQ”) and Christopher Hoole (“CH”). They were both Independent Financial Advisers (“IFAs”). They came together towards the latter part of 2006 in order to market a Self Invested Personal Pension scheme (“SIPP”), which had originally been devised by GQ. The original scheme, Scheme 1, which used a registered pension scheme latterly called Redswan, resulted in counts 1 and 2. That activity continued until June 2009. During the latter part of that period, CH established a second scheme, Scheme 2, which was the subject of counts 7 and 8. This scheme used a registered pension scheme called MW Pensions. The indictment period is a little under 3 years. 52. The schemes operated in what appears to have been a novel way. They involved borrowing and lending money in a more or less circular manner. The essential structure of the schemes appears to have been as follows: i) In order to establish a SIPP an investor borrowed money from an off-shore loan company recommended by the IFA. ii) That loan money was used by the investor as his contribution into the SIPP. iii) The administrators of the SIPP then claimed RAS, which was also paid into the SIPP. iv) The investment strategy was delegated to the IFA, who recommended that all the funds should be invested in purchasing shares in certain unquoted UK companies. v) The unquoted UK companies then used the capital generated by the sale of shares to lend to the off-shore loan companies recommended by the IFAs. vi) That then enabled the cycle to start again. 53. The role played by the defendants in the schemes was: i) GQ and CH promoted the scheme to potential investors through their IFA businesses. ii) The off-shore loan companies were owned and controlled by associates of GQ and CH, in particular Peter Garrett (“PG”) who was the director of ANZ Direct Ltd, Smoothrock Investments Ltd and BAC Investments Ltd. iii) The unquoted UK companies were also owned and controlled by associates of GQ and CH, in particular Andrew Edmondson (“AE”) who was the director of Jav Investments Ltd, Pyra Investments Ltd, Squared Associates Ltd, IPPP Ltd and ACP. iv) The SIPP administrators for Scheme 1 were Purplecircle Consulting Ltd, which became Redswan, whose director was Mark Andrews (“MA”) and employee was Richard Barlow (“RB”); both were trustees of the Redswan pension scheme. MA and RB were indicted on counts 1-6 but as we have said above, the case against them was properly stopped by the judge on the ground that even if those counts disclosed offences there was no evidence against them that they had knowingly participated in any criminal conduct. 54. Between October 2006 and February 2007 a firm of IFAs, Clear Blue Finance, introduced 22 SIPP clients to Zurich Financial Services Ltd. Their SIPP contributions were funded by the taking out of loans either directly from the defendants or from companies that they controlled, plus what RAS claimed from HMRC. An examination of their gross contributions reveals that most contributed at or near to their declared yearly earnings. By February 2008 all 22 had transferred their funds away from Zurich to another pension provider, The Purplecircle Private Pension Plan. In total some £557,881 of investments was transferred to Purplecircle, which later changed its name to Redswan. 55. In order to get the scheme going the defendants needed capital with which they could make the initial loans to the SIPP clients. The SIPP funds transferred to Redswan from Zurich were used as that capital. Although the prosecution have only been able to trace what happened to £427,187 of those funds, all of that sum was invested in buying shares in Jav, one of the unquoted companies. The capital generated by the sale of shares was then distributed as follows: £15,000 was paid to AE; £33,000 was paid to Bright Ltd, a company controlled by GQ and CH and which had provided some of the original funding to make loans to the Zurich SIPP clients; £375,000 was lent to the off-shore loan company Smoothrock. Smoothrock then lent that money to new SIPP clients of GQ and CH who then used the funds to contribute to new SIPP schemes administered by Redswan. Redswan then claimed RAS and then both the initial contribution and RAS was invested in the unquoted UK companies controlled by the defendants. And so the cycle went on. 56. Once the scheme was up and running other off-shore loan companies were used to lend money to new clients. New unquoted UK companies were invested in by the SIPP. The common theme was that all of the companies were controlled by the defendants. (e) The “curious” features of the schemes 57. The purpose of a SIPP is to invest the clients’ contributions, including the RAS, in such a way so as to generate a fund which can then be used to finance a pension. One of the most obvious “curiosities” of the GQ scheme was that it did not obviously do that. This was because the SIPP clients borrowed money to make their contributions at a rate of interest that was higher than the rate of interest at which the unquoted UK companies, into which they had invested, lent. Thus, on the face of it, they were never going to generate enough money to repay their initial loans plus interest let alone generate a fund for a pension. 58. According to what GQ said in interview, that was to be overcome by investing the RAS in land/property developments and bridging finance, both of which he expected to yield high returns. Whether or not that was really his intention, and if so whether or not the return on those investments was ever likely to generate sufficient funds to repay the loans, plus interest, and generate a pension fund, were factual issues in the case. There was evidence from an actuary who gave expert evidence as to the likely pension outcome from the scheme that the projected rates of return (15-18%) involved “a brave assumption” but were not impossible. However, it would need a rate of return of this order over many years if there was ever to be a fund sufficient to provide a pension. 59. There were several other “curious” features of the scheme: i) Not only did the clients invest close to their annual income in the scheme (which was the maximum permissible), but they did so for two and sometimes three years running. That involved heavy borrowing for people who were, in the main, not particularly high earners. ii) The loans they took out from the off-shore companies were unsecured. iii) The loans made by the unquoted UK companies to the off-shore loan companies, into which the SIPP clients had invested their large pension contributions, were also unsecured. The scheme therefore appeared to be a very high risk strategy so far as the SIPP holders were concerned. 60. However, their positions were protected by a further “curious” feature of the scheme. The SIPP holders were informed that they would never have to put any money into the scheme, whatever happened to the investments. In essence it was risk free. 61. The loans taken out by the SIPP holders were renewable annually. When they entered into the initial loan agreements, and when they renewed those agreements, they were also given what was called a “conversion option”. That was the option to enter into a further agreement with the loan company. That agreement allowed the SIPP holder, at the expense of paying a higher rate of interest, to cap the amount he had to repay on the loan. That cap, another “curious” feature of the scheme was, in essence, the value of the SIPP fund on maturity. 62. Therefore the effect of entering into the conversion option agreement was to extinguish the SIPP holder’s liability to repay any sum by which the amount of the unpaid loan and any unpaid interest exceeded the value of the fund. Thus he was absolved from making any contribution to the SIPP at any time. If the conversion option was exercised, as it always was, the chance of a pension ultimately being paid was reduced still further by the higher rate of interest now charged. 63. A final “curious” feature of the scheme was that, as a further inducement to enter into the scheme, the clients were offered the payment of “cashback”, ranging from a few hundred to a few thousand pounds, for entering into the scheme. As a result about 100 people entered into the Redswan scheme. Some of them gave evidence. They had various degrees of knowledge and understanding of the scheme and financial matters in general. The common theme was that they all said they thought that the scheme was legitimate. (f) The establishment of Scheme 2 64. Towards the end of 2007 GQ and CH appear to have had a difference of opinion as to how the scheme should be operated. As a result CH set up his own scheme, using MW Pensions, although he appears to have paid GQ some sort of commission or franchise payment in order to base his scheme on the scheme GQ had devised. The Redswan scheme was referred to at trial as Scheme 1 and the MW Pensions scheme as Scheme 2. 65. Scheme 2 operated in essentially the same way as Scheme 1. Over the first four months of Scheme 2 £322,750 was introduced into the scheme from various sources: £156,000 from SPO, a company CH owned; £26,500 from CH himself; £90,000 from Andrew Sweeney’s business Premier Financial; and £50,000 from Andrew Sweeney himself. CH promoted the scheme to potential clients, and he received some help in doing so in the North East of England from Luke Thompson. His principal assistant was Neal Thompson. He was the director of the off-shore loan company Prospect Investments, and indeed prior to Prospect setting up a bank account he allowed his First Reserve bank account to be used in order to provide investors with loans using the money that came in from SPO etc, on what he called an agency basis. He was also the director of the unquoted UK companies Atrium Investments Ltd and Axiom Investments Ltd. The same recycling of funds took place in Scheme 2 as in Scheme 1, and the same extracting of RAS. As a result all of the money that had originally been introduced into the scheme was then repaid over time from the RAS. There were however two differences between the schemes. The Pension Administrators were MW Pensions; and the only use to which the share sale proceeds was put was in lending to new SIPP holders, thus there was no investing in any other enterprise. 66. Scheme 2 also attracted clients, in excess of thirty, and some of them gave evidence. They too had varying levels of understanding of the scheme, but once again they all said that they had thought that the scheme was a legitimate one. (g) The FSA investigation 67. In 2008 the FSA started an investigation into the operation of both schemes. On 22 June 2009 these defendants were all arrested. Their homes and business premises were searched and a large quantity of documents and computers was seized. They were bailed and then re-interviewed in January and February 2010. In interview all denied any wrong doing. (2) The law relating to SIPPS 68. During the indictment period the operation of SIPPs was principally governed by Part 4 of the Finance Act 2004 . The key features of the legislation as it applied to SIPPs were as follows: i) In any tax year an individual could invest a sum up to the equivalent of 100% of his annual income (subject to a cap) in a personal pension scheme (which included a SIPP). The funds could come from any source, including his income, his savings, or a loan. ii) That money was held by the scheme in a trust and it was administered by HMRC registered Pension Administrators, who were independent of the IFAs or other financial advisers who promoted the scheme. iii) Provided the pension scheme was registered with HMRC the investor was entitled to claim basic rate tax relief on his investment “at source” (“RAS”). What that meant was that the investor need only pay in 78/80% of his proposed contribution, depending on the level of the basic rate of tax. The balance was then claimed from HMRC by the Pension Administrators as RAS. HMRC paid those claims directly to the Pension Administrators who then paid the funds into the individual SIPP holder’s account. iv) From 2006 onwards SIPP funds could be invested in very many different ways and, provided the investor chose to invest his funds in a permitted (“authorised”) way, he was free to invest all of the funds in whichever way he chose. In practice it was often the IFA who directed the investment strategy, for a fee, and the SIPP clients often delegated their investment powers to them. Any income derived from those investments was not subject to income tax, and any increase in the value of an investment was not the subject of capital gains tax. v) The role of the Pension Administrator was to oversee the administration of the SIPP; in particular claiming RAS and ensuring that the funds were invested in permitted investments. However, the Pension Administrator was not permitted to give financial advice to the SIPP holder. vi) If SIPP funds were invested in investments that were not permitted then they were likely to be subject to tax charges and to tax penalties. vii) Payments out of the scheme could only be made in certain limited circumstances. They included the payment of a pension, transferring to another SIPP, and administration and management fees. However, it should be noted that there were strict rules preventing the making of payments to the SIPP holders themselves, including by way of loan or benefit in kind. 69. On retirement, death, reaching a particular age or on the onset of serious ill health or incapacity the SIPP holder or his estate was then entitled to draw on the pension fund. 70. The parts of the Finance Act 2004 which are central to the argument are as follows: “ 150 Meaning of “pension scheme” (1) In this Part “pension scheme” means a scheme or other arrangements, comprised in one or more instruments or agreements, having or capable of having effect so as to provide benefits to or in respect of persons— (a) on retirement, (b) on death, (c) on having reached a particular age, (d) on the onset of serious ill-health or incapacity, or (e) in similar circumstances. (2) A pension scheme is a registered pension scheme for the purposes of this Part at any time if it is at that time registered under Chapter 2. 151 Meaning of “member” (1) In this Part “member” in relation to a pension scheme, means any active member, pensioner member, deferred member or pension credit member of the pension scheme. (2) For the purposes of this Part a person is an active member of a pension scheme if there are presently arrangements made under the pension scheme for the accrual of benefits to or in respect of the person. 152 Meaning of “arrangement” (1) In this Part “arrangement”, in relation to a member of a pension scheme, means an arrangement relating to the member under the pension scheme. (2) For the purposes of this Part an arrangement is a “money purchase arrangement” at any time if, at that time, all the benefits that may be provided to or in respect of the member under the arrangement are cash balance benefits or other money purchase benefits. (3) For the purposes of this Part a money purchase arrangement is a “cash balance arrangement” at any time if, at that time, all the benefits that may be provided to or in respect of the member under the arrangement are cash balance benefits. (4) In this Part “money purchase benefits”, in relation to a member of a pension scheme, means benefits the rate or amount of which is calculated by reference to an amount available for the provision of benefits to or in respect of the member (whether the amount so available is calculated by reference to payments made under the pension scheme by the member or any other person in respect of the member or any other factor). (5) In this Part “cash balance benefits” means benefits the rate or amount of which is calculated by reference to an amount available for the provision of benefits to or in respect of the member calculated otherwise than wholly by reference to payments made under the arrangement by the member or by any other person in respect of the member (or transfers or other credits). (6) For the purposes of this Part an arrangement is a “defined benefits arrangement” at any time if, at that time, all the benefits that may be provided to or in respect of the member under the arrangement are defined benefits. (7) In this Part “defined benefits”, in relation to a member of a pension scheme, means benefits which are not money purchase benefits (but which are calculated by reference to earnings or service of the member or any other factor other than an amount available for their provision). (8) For the purposes of this Part an arrangement is a “hybrid arrangement” at any time if, at that time, all of the benefits that may be provided to or in respect of the member under the arrangement are, depending on the circumstances, to be of one of any two or three of the following varieties— (a) cash balance benefits, (b) other money purchase benefits, and (c) defined benefits. (9) Where not all of the benefits that may be provided under an arrangement to or in respect of the member are of the same one of those varieties of benefits, the arrangement is to be treated for the purposes of this Part as being two or three separate arrangements one of which relates to each of the two or three varieties of benefits that may be so provided. 188 Relief for contributions (1) An individual who is an active member of a registered pension scheme is entitled to relief under this section in respect of relievable pension contributions paid during a tax year if the individual is a relevant UK individual for that year. (2) In this Part “relievable pension contributions”, in relation to an individual and a pension scheme, means contributions by or on behalf of the individual under the pension scheme other than contributions to which subsection (3) applies. [subsection (3) is not material]. 192 Relief at source (1) Where an individual is entitled to be given relief in accordance with this section in respect of the payment of a contribution under a pension scheme, the individual or other person by whom the contribution is paid is entitled, on making the payment, to deduct and retain out of it a sum equal to income tax on the contribution at the basic rate for the tax year in which the payment is made. (2) If a sum is deducted from the payment of the contribution— (a) the scheme administrator must allow the deduction on receipt of the residue, (b) the individual or other person is acquitted and discharged of so much money as is represented by the deduction as if the sum had actually been paid, and (c) the sum deducted is to be treated as income tax paid by the scheme administrator. (3)When the payment of the contribution is received— (a) the scheme administrator is entitled to recover from the Board of Inland Revenue the amount which is treated as income tax paid by the scheme administrator in relation to the contribution, and (b) any amount so recovered is to be treated for the purposes of the Tax Acts in the same manner as the payment of the contribution.” (3) The prosecution case as finally advanced 71. The judge had to grapple with a number of different documents which contained somewhat different explanations of how the prosecution put its case. We are not concerned with that history, because we are only concerned to determine whether he was right to say that the case which the prosecution wished to advance at the conclusion of its case was a case which disclosed the offences alleged in counts 1 and 7 and 2 and 8 on the indictment. 72. It was the prosecution case that both schemes were a sham. i) The defendants knew full well that the schemes would never generate a fund large enough to pay off both the loan and interest, and then also have sufficient left over to provide a pension. ii) Such investments as there were were small scale, and took place only towards the end of the running of the schemes, primarily when they were under investigation. iii) The defendants’ aim was to establish schemes which recycled the same capital and which generated large amounts of RAS. iv) The defendants were principally after the RAS money, which once the initial funding was repaid, was the only real money in the scheme. v) Almost all of the RAS was extracted from the scheme by way of payments to the defendants disguised as administration fees, costs and other payments or through repayments to all of those who had provided the initial funding for the scheme. vi) That this was taking place was of no concern to the SIPP holders. That was because they had not provided any capital investment themselves and, by reason of the conversion option, they took no risk. They were essentially unconcerned whether or not the scheme actually provided them with a pension or not. In essence, they received payment for lending their names to a scheme designed to extract RAS for the defendants and were not likely to obtain any other benefit. 73. Whatever may have been the position at other stages of the case, by the close of the prosecution case, the prosecution firmly told the judge that counts 1 and 7 related to the extraction of RAS after it had been legitimately paid to the schemes, if that was the finding of the jury. He proceeded on that basis, as do we. 74. This means that the logical order in which to consider the submissions is first to decide whether there was evidence on which a jury could properly conclude that the RAS was obtained unlawfully in the first place (counts 2 and 8) and then whether there was evidence that, even if it was lawfully obtained, the extraction of the money from the pension schemes constituted a fraud on either HMRC or the SIPP investors (counts 1 and 7). (4) Was there a case on Counts 2 and 8? (a) The prosecution case 75. By the time of the argument before the judge, the prosecution put its case on the lawfulness of the obtaining of RAS (counts 2 and 8) in two ways: i) No contribution If the client contributions were a sham then there were no real contributions and there was no entitlement to RAS. ii) Contribution – but non compliance with the Act Provision for tax relief on contributions is made by s.188. In order to be entitled to tax relief an individual must be an ‘active member’ of a pension scheme. If, as is alleged in (i) and (ii) above, there was no pension scheme and the clients were not active members of any pension scheme, then there was no entitlement to RAS. The judge observed that the submission at ii) was consistent with the way the prosecution had put their case throughout; but that the submission at i) was new at the close of the prosecution case. He dealt with both submissions without deciding whether the prosecution was entitled at that late stage to introduce a new way of putting its case. (b) Defence submissions before the judge 76. The general defence submission that the claims for RAS were lawful can be summarised as follows: i) Pension schemes, and SIPPs in particular, were at the relevant time governed by the provisions of the Finance Act 2004 . ii) Prior to the commencement of either Scheme 1 or 2, Redswan and MW Pensions established “pension schemes” within the meaning of s.150(1) of the 2004 Act . They then registered those schemes in accordance with s.150(2) and Chapter 2 of the Act . Those were agreed facts. iii) The Scheme 1 and Scheme 2 SIPP holders became members of the Redswan and MW Pensions registered pension schemes when their applications were accepted by the pension schemes. They had entered into an arrangement, or agreement, with those pension schemes pursuant to ss.151(1) and (2) and s.152 of the Act . iv) Their membership status was that each was “an active member of a pension scheme”: see s.151(2) . That was because there was an arrangement in place under the pension scheme “for the accrual of benefits to or in respect of the person”. v) As a result they were entitled to the benefits set out in Chapter 4 of the Act . In particular when the money they had borrowed from the off-shore companies in order to fund their pension was paid into the SIPP account that was a “relievable pension contribution” pursuant to s.188(2) of the Act , and as an active member of a registered pension scheme they were entitled to tax relief pursuant to s.188(1) . vi) Accordingly they were entitled to make the deduction set out at s.192(1), that is they were entitled “to deduct and retain a sum equal to income tax on the contribution at the basic rate for the tax year in which the payment is made”. Furthermore the scheme administrators had to allow that deduction in accordance with s.192(2), and they were entitled to recover the amount deducted from HMRC in accordance with s.192(3). vii) That was what was intended to happen in relation to the members of each of these two pension schemes and it was in fact what did happen on each occasion. viii) Thus the RAS payments were all lawfully obtained from HMRC. ix) Accordingly there was no evidence from which it could be inferred that the defendants conspired to cheat HMRC. (c) The judge’s decision: were there contributions ? 77. “Relievable pension contributions” are defined in s.188(2) of the Act as “contributions by or on behalf of the individual under the pension scheme other than contributions to which subsection (3) applies”. It was not suggested that subsection (3) applied here. The judge decided that the word “contribution” simply means a payment. Thus in order to satisfy s.188(2) of the Act there must be: i) a payment (which could be money or money’s worth) ii) by or on behalf of the individual (who must be an active member of a pension scheme; see s.188(1) ) iii) under (into) the pension scheme. 78. The judge said that it was not in dispute that all of the SIPP holders were enrolled as members of a registered SIPP. It was also not in dispute that payments were made into the SIPP clients’ pension scheme accounts from the loan companies via the SIPP schemes’ bank accounts, by or on the SIPP clients’ behalf. The judge held that whatever the underlying value of the investments in the pension scheme were, those transfers or payments were of real money. The Bath Building Society bank statements showed those transfers. 79. The second prosecution submission concerned the correct interpretation of “active member” in s.151(2) . The prosecution submitted that according to s.188(1) before an individual can claim RAS he must be an active member of a registered SIPP scheme. The prosecution’s argument is that the requirement that “there are presently arrangements made under the pension scheme for the accrual of benefits to or in respect of the person” in s.151(2) was a requirement that there should be an examination of the particular arrangements that were in place between the SIPP holder and the pension scheme to see if benefits were in fact accruing under the SIPP scheme at the time when the contribution was made. Only if there were could the claimant be “an active member” of the pension scheme. On this appeal, the prosecution disavow that formulation of its case, contending that the prosecution argument is that the entitlement to tax relief has to be examined on an individual basis and by reference to the nature of the pension scheme to which he makes his contribution. Whether or not the method by which tax relief (where appropriate) is given is efficient or costly is not to the point. The point is whether, on a proper construction of the individual’s position, he is entitled to the relief. If he is not entitled to the relief and he has been given it either in error or as a result of fraud, the method by which he obtained it is immaterial. 80. The judge decided that the term “arrangement” in s.151(2) means agreement. He relied on the Explanatory Notes to the Finance Bill 2004 (as it then was). This contains the following:- “DETAILS OF THE CLAUSE 3. Sub section (1 ) defines “arrangement”. An arrangement is the agreement between the member and the registered pension scheme. Arrangements give formal recognition of membership of a scheme.” 81. Thus the judge held that a person will be an active member of a pension scheme if there is an agreement in place between the SIPP holder and the pension scheme which is for the accrual of benefits. He found that there were such agreements in place in this case. In relation to Scheme 1 the terms of those agreements are contained within and evidenced by such documents as the SIPP Application forms, the letters of acceptance, the Appointment of a non-regulated Intermediary forms, and the instructions given to the trustees as to where to invest the funds. In relation to Scheme 2 the terms of the agreements are contained within and evidenced by such documents as the SIPP Application forms, the CHF SIPP proposal letters and forms, and the Unquoted Investments Purchase Application forms. 82. The judge also held that s.152(2) did not impose a requirement that the current investment activity under the pension scheme needs to be examined on an individual basis each time a person seeks to claim RAS, as he held must be the case if the prosecution submission were correct. Accordingly he found that the RAS payments were all lawfully obtained from HMRC and therefore that there is no evidence from which it could be inferred that the defendants conspired to cheat HMRC and that there is no case for any of the defendants to answer on counts 2 and 8. (d) Our conclusion 83. The fundamental problem faced by the prosecution in relation to these two counts may be simply stated. The claims for RAS were made, in accordance with the specified statutory procedure, by the duly appointed scheme administrators of the registered pension schemes (Redswan and MW Pensions) of which the clients of Scheme 1 and Scheme 2 were admittedly members. The claims were made in respect of contributions paid into the registered pension schemes by the clients, funded by the loans which they had taken out with the relevant offshore loan companies. The movements of the money can be traced in the documentation, and are reflected (for example) in the bank statements of the accounts held by Bath Building Society with the NatWest Bank, which the scheme administrators of the Redswan SIPP had specified to HMRC as the bank account to which payments of RAS should be made. How, then, could it plausibly be argued that the RAS was not in fact due in respect of the contributions thus made by the clients to the registered pension schemes of which they were at all material times members? 84. The fact that the contributions were made with borrowed money cannot in itself be an objection, because everybody agrees that an individual active member of a registered pension scheme may fund his relievable pension contributions (up to the yearly ceiling laid down in the legislation) by borrowing for the purpose. Nor, on the face of it, are the terms on which the money was borrowed of any relevance, because that is a matter between the lender and the client, outside the purview of the pension scheme. Once the money was paid into the pension scheme, the purposes for which it could then be paid or applied were in many respects closely regulated, although the whole point of a SIPP was that it allowed a wide degree of freedom in how the member’s fund was invested. But again, none of that appears to have any obvious bearing on the entitlement of the member to tax relief on his contribution under s.188 of the Act , or on the right of the scheme administrators to claim RAS pursuant to s.192. 85. The first way in which the prosecution sought to confront these difficulties was by arguing that the arrangements made under Scheme 1 and Scheme 2 were sham. Unfortunately, however, this contention was throughout advanced at a very high level of generality, without any attempt being made to analyse the precise respects in which it is alleged that the arrangements were sham, or to identify the real underlying transaction which it is said that the parties were in fact undertaking. 86. The concept of sham has a well-established legal meaning, the classic statement of which is to be found in the judgment of Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802: “As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a “sham”, it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between parties the legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Co v Maclure (1882) 21 Ch.D. 309 and Stoneleigh Finance Ltd v Phillips [1965] 2 QB 537 ), that for acts or documents to be a “sham”, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a “shammer” affect the rights of a party whom he deceived.” 87. This definition has been repeatedly applied by courts and tribunals in the context of tax cases: see, for example, the judgment of the Court of Appeal (which was not cited to us, but is well known to practitioners in the field) in Hitch v Stone [2001] EWCA Civ 63 , [2001] STC 214 . Delivering the only reasoned judgment (with which Sir Martin Nourse and Kay LJ agreed), Arden LJ encapsulated the relevant law as follows: “63. The particular type of sham transaction with which we are concerned is that described by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 . It is of the essence of this type of sham transaction that the parties to a transaction intend to create one set of rights and obligations but do acts or enter into documents which they intend should give third parties, in this case the Revenue, or the court, the appearance of creating different rights and obligations. The passage from Diplock LJ’s judgment set out above has been applied in many subsequent decisions and treated as encapsulating the legal concept of this type of sham … 64. An enquiry as to whether an act or document is a sham requires careful analysis of the facts and the following points emerge from the authorities. 65. First, in the case of a document, the court is not restricted to examining the four corners of the document. It may examine external evidence. This will include the parties’ explanations and circumstantial evidence, such as evidence of the subsequent conduct of the parties. 66. Second, as the passage from Snook makes clear, the test of intention is subjective. The parties must have intended to create different rights and obligations from those appearing from (say) the relevant document, and in addition they must have intended to give a false impression of those rights and obligations to third parties. 67. Third, the fact that the act or document is uncommercial, or even artificial, does not mean that it is a sham. A distinction is to be drawn between the situation where parties make an agreement which is unfavourable to one of them, or artificial, and a situation where they intend some other arrangement to bind them. In the former situation, they intend the agreement to take effect according to its tenor. In the latter situation, the agreement is not to bind their relationship. 68. Fourth, the fact that parties subsequently depart from an agreement does not necessarily mean that they never intended the agreement to be effective and binding. The proper conclusion to draw may be that they agree to vary their agreement and that they have become bound by the agreement as varied … 69. Fifth, the intention must be a common intention (see Snook ).” 88. In the light of these principles, it is in our judgment clear that a high-level and unparticularised invocation by the prosecution of the concept of sham is not good enough, and could never have provided safe grounds for a conviction on counts 2 or 8. If the prosecution wished to establish that the arrangements which the promoters of Schemes 1 and 2 made with the clients did not generate relievable pension contributions, it would have been necessary for them to satisfy the jury, to the criminal standard of proof, that the contributions lacked any true legal substance, notwithstanding their payment into the registered pension schemes of which the clients were members. 89. In our judgment it would have been impossible to make good any contention of this nature without also establishing that the clients were conscious participators in the sham transactions, with the intention (for example) that their apparent contributions should be no more than movements of money in a fraudulent plan designed to extract RAS from the Revenue. If there is one thing which the authorities insist upon, it is that a sham must reflect the common intention of all the parties to the impugned transaction. Yet the prosecution had throughout studiously refrained from alleging that the clients were necessarily implicated in the alleged fraud. As the judge aptly remarked in paragraph 64 of his ruling, albeit in the context of counts 1 and 7, the prosecution’s stance in relation to the SIPP clients “has remained throughout this trial as one of studied neutrality if not masterly inactivity”. For this reason, if no other, the sham allegation is in our judgment a hopeless one which could never have been permitted to go before the jury. For the purposes of counts 2 and 8 the prosecution, in our judgment, needed to show that the clients were knowing parties to a sham transaction, but as will appear below for the purposes of counts 1 and 7 they sought to show that the clients were the victims of the fraud. This illustrates, in a nutshell, a central difficulty in this case. 90. The prosecution’s second argument focused on the definition of “active member” in s.151(2) of the Act . If the client was not an active member of the registered pension scheme which he joined, he could not have been entitled to tax relief for his contributions under s.188(1) because relief is granted only to “[a]n individual who is an active member of a registered pension scheme”. So much, as the judge said, was common ground. But since each client was admittedly a member of the pension scheme in question, what basis could there be for denying that he was an active member? S.151(1) defines “member”, in relation to a pension scheme, as meaning “any active member, pensioner member, deferred member or pension credit member of the pension scheme”. It is clear that the clients did not fall into the second, third or fourth of these categories, so by a process of elimination alone it would seem to follow that their membership must have been as active members. 91. S.151(2) says that for the purposes of Part 4 of the Act : “a person is an active member of a pension scheme if there are presently arrangements made under the pension scheme for the accrual of benefits to or in respect of the person.” It is important to stress that this definition, like those of the other three categories of member, is of general application to pension schemes of all kinds. It seems clear to us, as it did to the judge, that the question whether there were arrangements in existence under the scheme for the accrual of benefits to or in respect of each client can only be answered by examining the terms of the pension scheme. Rather to our surprise, the full trust deeds and rules of the two registered schemes were not contained anywhere in the voluminous jury bundles, presumably on the basis that nothing was thought to turn on the small print of the arrangements. But there can be no doubt, in our judgment, that the terms of each pension scheme provided for the accrual of benefits in respect of each member’s individual SIPP held under the scheme. As Mr Enoch QC reminded us, HMRC never sought to challenge the validity of the registered schemes themselves; they continue in existence today, with many members other than those who were introduced by the present defendants. 92. A sufficient indication of the relevant contractual arrangements can, we think, be gained from the application forms filled in by the clients, several of which were included in the bundle. Thus, the application form for membership of the Purplecircle/Redswan private pension plan contained the following declarations to be made by the applicant: “(i) I hereby apply for membership of the Plan and agree to be bound by its trust deed and rules … … (iv) I understand that there is a single Plan within which are held separate, segregated assets for my benefit forming my “membership” (v) I request the Plan Trustees to provide such benefits in line with my funds as may be required from time to time in accordance with HMRC requirements (vi) In return for the services to be provided, I agree and authorise the payment of the charges as detailed in the Fee Agreement & Terms of Business document current at the date of this application and any superseding it … ” It appears, therefore, that the contributions made by each member were held separately by the pension scheme trustees, and were held by the trustees to provide the member with benefits in accordance with HMRC requirements. Arrangements of this nature were in our view clearly arrangements made under the scheme for the accrual of benefits to or in respect of the member within the meaning of s.151(2) . Accordingly, the conclusion that the clients were active members is reached not only by a process of elimination, but (more positively) by application of the test laid down in s.151(2) itself. 93. We would add that, in reaching this conclusion, we do not consider it necessary to have regard to the Explanatory Notes to clause 142 of the Finance Bill 2004, which was enacted as s.152 of the Act . On the other hand, the terms of s.152 itself make it clear that the “arrangement” in relation to a member of the scheme means “an arrangement relating to the member under the pension scheme”. This therefore reinforces the point that one has to look at the terms of the pension scheme itself in order to identify the relevant arrangements. Although nothing turns on the point, we think that the arrangements relating to the client members must have been “money purchase arrangements” as defined in ss.152(2) , (4) and (5). 94. For these reasons, which are essentially the same as those given by the judge, we consider that he was clearly correct to uphold the submissions of no case to answer on counts 2 and 8. (5) Was there a case to answer on counts 1 and 7? (a) The way the prosecution case was put 95. Counts 1 and 7 allege that the fraudulent agreement was to divert the RAS money away from the pension scheme once it had been lawfully obtained . The only point of counts 1 and 7 was to seek to set up that case if necessary. 96. The judge dealt with the diversion of RAS first. He decided that on the evidence as it currently stood it was open to the jury to infer that there was an agreement that the defendants could put the RAS, or at least some of it, “to their own use”. He also decided that it was open to the jury to conclude that the agreement to divert funds in this way was dishonest. 97. He then turned to the question of who the victim of this conspiracy was. The prosecution, by that stage, was contending that it was both HMRC and the SIPP clients. The defence submitted that neither HMRC nor the SIPP clients could have been defrauded and thus there was no case to answer on these counts. 98. The judge was referred to the analysis of the offence of conspiracy to defraud by Hickinbottom J in the case of R v Evans and others [2014] 1 WLR 2817 . At paragraphs 28-48 of that judgment there is an examination of the scope of the offence of conspiracy to defraud in the light of the analysis of the late Professor Sir John Smith, in his Law of Theft 2007 Edition at paragraph 5.12: “There are two versions of the offence of conspiracy to defraud:” (i) agreeing dishonestly to prejudice another’s economic interest; or (ii) agreeing to mislead a person with intent to cause him to act contrary to his duty.” It was on the basis of the first version that the prosecution put their case. They said that both HMRC and the clients had an economic interest in the RAS and that any agreement to divert it would have been to prejudice their economic interests. The second version, which might otherwise be appropriate, requires a deception and requires the person who is deceived to act otherwise than in accordance with their duty. Given the judge’s ruling on counts 2 and 8, HMRC had no alternative but to pay the RAS and were not deceived. (b) Were HMRC “victims”? 99. The defence submitted that once RAS was paid into the SIPP holder’s bank account HMRC ceased to have any proprietary or economic interest in it. Thus a conspiracy to divert RAS from the pension was not one to defraud HMRC. 100. The prosecution submitted that HMRC retained an economic interest in the RAS after it was paid to the SIPP holder. They submitted that there was an obligation to invest the RAS for the purpose of a pension and that if it was not so invested and was used for some other purpose then HMRC’s economic interests were or might be put at risk. They did not contend that HMRC had a proprietary interest in the RAS (which they obviously did not). Instead they submitted that HMRC had an economic interest in the RAS which was analogous to those deemed to exist pursuant to s.5(3) of the Theft Act 1968 and section 4 of the Fraud Act 2006 . 101. The prosecution cited a number of authorities both to the judge and to us which they submitted supported this contention. They were R v Hall (1972) 56 Cr App R 547 , Wakeman v Farrar [1974] CLR 136, R v Meech & Ors (1974) 58 Cr App R74, R v McHugh [1993] 97 Cr App R 335 , R v Wain [1995] 2 Cr App R 660 , Klineberg v Marsden [1999] 1 Cr App R 427 , R v Floyd (2000) CLR 411, and Re Holmes [2005] 1 Cr App R 16 . It is unnecessary to burden this judgment with an analysis of these decisions. None of them comes close to establishing any principle of the kind contended for. 102. S.5 of the Theft Act 1968 provides “5. “ Belonging to another” . (1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest). (2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right. (3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other. 103. Section 4 of the Fraud Act 2006 provides: “4. Fraud by abuse of position (1) A person is in breach of this section if he– (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, (b) dishonestly abuses that position, and (c) intends, by means of the abuse of that position– (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.” 104. The judge rejected the suggestion that these provisions were capable of establishing that HMRC had any economic interest in the destination of RAS which they had lawfully paid into a registered pension scheme, as do we. Those are provisions which create or define an element of statutory offences which were not charged in this case. They are simply irrelevant to the definition of the kind of economic interest which must exist before the offence of conspiracy to defraud can be committed. 105. Accordingly the judge was right to hold that they were of no value in the current exercise. HMRC were under an obligation in this respect to make a payment of RAS in circumstances where it was due. Thereafter HMRC had no further continuing interest in that money at all. In those circumstances it follows that in this case any agreement to extract RAS from the SIPP clients’ pension schemes was not one to prejudice the economic interests of HMRC and could not, as a matter of law, be a conspiracy to defraud HMRC. (c) Were the SIPP clients victims? 106. The prosecution conceded that the jury might find that all of the SIPP clients were parties to the conspiracy. A number of the clients of both schemes were called by the prosecution to give evidence. They all said that so far as they were concerned they were involved in a genuine scheme. The judge remarked that “they would say that, wouldn’t they”. He said that the jury might accept what they said, but they would be equally entitled to conclude that the SIPP clients knew full well what was going on, that they joined in the conspiracy willingly and that the “cashback” payments amounted to their “cut”. If that was so, the judge held that the jury could not be sure that some or all of the SIPP clients were victims and not co-conspirators. We have referred to this passage of the judge’s reasoning at paragraph 89 above. 107. In reality, the jury could not exclude the possibility that the SIPP clients had simply received a payment for doing nothing. They never invested any money in any pension and were not exposed to any financial risk because of the “conversion option”. It is highly likely that none of them will ever receive a pension because the money has been diverted and not invested on their behalf. The jury may have found that there were some who thought that a scheme in which they had never invested a penny would provide them with a pension. The prosecution could not, however, prove that. If they were conspirators, knowing exactly what was going on, it cannot be said that their economic interests were injured or put at risk in any way. Similarly, if they thought that the schemes were legitimate methods of enriching the promoters of the schemes at the taxpayers’ expense but did not expect to get anything except their initial cashback payment out of it, then they could not be described as “victims” in that sense. Conspiracy to defraud of the first variety cannot be committed without a victim with, in this case, an interest in the money which was diverted. CONCLUSION 108. It is not for us, as we have said at paragraph 11, to determine anything more than whether the case as eventually put by the prosecution gave rise to a case to answer. We are not concerned in any way with any other issue about the schemes nor with any regulatory matter arising from the schemes. We have concluded simply that the judge was correct in his ruling and that the way in which the prosecution eventually put their case was misconceived. Although that is the narrow ambit of our decision, it followed that the appeal was dismissed and the undertaking given by the prosecution (which was required in this form of appeal) took effect. The prosecution were not entitled to amend their case or put it any other way.

```yaml citation: '[2015] EWCA Crim 538' date: '2015-03-25' judges: - MR JUSTICE EDIS ```

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Neutral Citation Number: [2009] EWCA Crim 2291 Case No: 2008/4939/B2 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE INNER LONDON CROWN COURT His Honour Judge Smith QC T20057431 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10 November 2009 Before: LORD JUSTICE MOSES MR JUSTICE OPENSHAW and SIR GEOFFREY GRIGSON - - - - - - - - - - - - - - - - - - - - - Between: Omar Bryan Appellant - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mrs M Smullen (instructed by Crystal Partners Solicitors ) for the Appellant Miss J Knight (instructed by The Crown Prosecution Service ) for the Respondent Hearing date: 13 October 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moses : 1. On 13 October 2009 we allowed the appellant’s appeal and quashed his conviction of rape. The conviction was quashed after a period of just over three years and two months during which this appellant had been detained in a young offender institution following his sentence of six years’ detention. He appealed against conviction upon a reference by the Criminal Cases Review Commission pursuant to s.9, Criminal Appeal Act 1995 , following a refusal by this court of leave to appeal against the conviction on 17 January 2007. Following that refusal the appellant submitted his application to the Criminal Cases Review Commission on 20 April 2007 and his case was referred by them on 4 September 2008. We announced our decision immediately following oral argument in an attempt to rectify, in a limited way, the disservice the criminal justice system has done to this young appellant. He is now 21 and was only 16 at the time of the alleged offence of rape. 2. The complainant was a young 15 year-old schoolgirl, L. She alleged that she had been raped on 1 February 2005 by two boys, neither of whom was known to her. Her movements prior to the rape are of importance in this appeal. In her video interview, which stood as her evidence-in-chief, she said she had left school early with her friend, S, whose mother had collected them and taken them to her friend’s grandmother’s flat. In her interview she explained that the reason she was able to leave early was because there was a supply teacher. 3. She said she left her friend’s address alone at about 4.00 p.m. and was walking through an area called Angel Town to visit her grandmother when she saw two boys, one of whom called to her, then approached her and pulled her towards a block of flats. The boys managed to take her inside where one of them, who had a Jamaican accent, pulled down her trousers, pressed her against the wall and then inserted his penis. She said she had shouted and fought back but had been told to keep silent. The other boy had an English accent. 4. There was a noise outside, the boys ran off and she ran back to her friend’s house where she made a complaint of rape. Her mother arrived, took her home and called the police. 5. Her friend S, who described L’s distress when she returned to her house following the attack, said she was not a close friend and was not in the same class. She confirmed that they had left the school together when collected by S’s mother. 6. There are two important features of this evidence: firstly, that the rape was committed by a stranger with the assistance of another stranger and secondly, that it occurred after the complainant had left school with her friend. 7. Medical evidence suggested that abrasions in the genital area could be consistent with either recent consensual or non-consensual penetration but in a supplementary report and evidence-in-chief the ultimate conclusion of the doctor was that the multiple injuries seen were more likely to support the complainant’s account. Semen on the knickers of the complainant revealed DNA which came from the appellant. 8. The appellant was invited to Brixton police station and attended without an appropriate adult or solicitor on 26 April 2005. He denied rape or any sexual encounter with either the complainant or anyone else. Once the DNA had been analysed he was asked to return on 16 June 2005. Again, he chose to have neither solicitor nor an appropriate adult. When he was told that a DNA match had been confirmed, initially he maintained his account that he had not had a sexual encounter with anyone at the time of the alleged offence but then told the interviewing officers that on or around 1 February he had met a girl who called herself “Shanice” and told him she was 16. He said she had taken his mobile telephone number. She then telephoned him later the same afternoon and they met. He had taken her back to his house, which was in the same block as S’s grandmother’s flat. There they had consensual sexual intercourse and he ejaculated over the top of her leg. He added that a few days later the girl had telephoned him again. It is important to note that from the time of the second interview the police knew that the defendant was contending that the girl had his telephone number. By the time he gave evidence he said that he did not have a telephone at the time and said he explained this to the complainant and had given her his friend’s telephone number. 9. Both before and during the trial the defence concentrated on contending that the appellant’s mental vulnerability was such that he could not have a fair trial. He should have had a legal representative or appropriate adult at his police interviews and was not capable of understanding the trial process or giving evidence in his own defence. To that end the defence relied upon a clinical psychologist; the prosecution responded with evidence from a consultant forensic psychiatrist. On the basis of the dispute between those experts the judge ruled that the defendant could receive a fair trial and that the evidence of the interviews should not be excluded. We mention this issue, not because it is relevant to this appeal, but because it seems to have diverted the attention of the defence away from the central issue whether the complainant was telling the truth when she said that she had been raped by a stranger or the defendant was telling the truth when he said that they had met and he had given her a telephone number, prior to a second meeting and consensual sexual intercourse. 10. At trial the issue of the defendant’s mental vulnerability was raised again. For the purpose of this appeal it is necessary to recall the evidence given in relation to the issue of the mobile telephone number. Both prosecution and defence laboured under significant difficulty. The officer in the case had not taken possession of the complainant’s phone for examination because he thought “it would be bad form and might jeopardise her case”. His approach, in which he sought not to undermine the complainant’s trust in him, was criticised both by the judge during the course of his summing-up and by the Court of Appeal, when considering the defendant’s application for permission to appeal. The trial judge and the Court of Appeal’s criticism might have been more trenchant had they been aware, as the CCRC learned, that prosecuting counsel had herself advised that in the light of the defendant’s second interview a check should be carried out and itemised bills, for the defendant’s mobile and “if necessary” records be obtained for the complainant’s mobile and landline a few days before and after the attack. Counsel continued:- “It would significantly undermine the defendant’s account and assist ours if we can show that there were no calls made by the complainant to his phone.” We might add that the records would significantly have supported the defendant’s account and undermined the prosecution if there was evidence that the complainant had a number stored on her mobile under the name of Omar which, it later emerged, was the mobile telephone number of the defendant’s friend, Ricardo Johnson, ‘Ricky’. 11. As we have indicated, in his proof the defendant said that the mobile phone number he gave to the complainant was not the number of his own mobile but rather that of his friend Ricky, whose mobile he was using that day. At the trial, at some stage he instructed his counsel that the complainant’s father had telephoned Ricky’s number and asked to speak to Omar about his daughter. It is not clear when he gave those instructions but they must have been last-minute since they were added to the proof in defence counsel’s handwriting. But those instructions must have been given before defence counsel cross-examined the complainant, L, on 2 June 2006. The police had, in accordance with counsel’s advice, obtained the mobile telephone in the defendant’s possession at the time of his first interview but since the police had no knowledge of the relevance of Ricky’s mobile telephone and the defendant himself had not acquired the telephone he had handed to the police until about a month after the complaint, the police searches were useless. 12. The cross-examination of the complainant L is of significance. During the course of her cross-examination defence counsel put to the complainant that she had been talking to a boy she had met near Loughborough Junction station on the afternoon of 1 February and asked him for his mobile telephone number. She replied that she did not think so but that she did not remember. She denied that she had telephoned that number again and arranged to meet the boy she had met. She denied she had ever met a boy called Omar. 13. Later in the cross-examination she was asked whether at some time between 1st and 3rd or 4th February 2005 her father had come across a boy’s number on her mobile telephone. She agreed and thought he had phoned “somebody”. Defence counsel asked whether her father had phoned Omar and she said she could not remember. She said her telephone was “pay as you go” and she did not have it any longer. 14. But in re-examination the complainant was more forthcoming. In re-examination, the complainant repeated that her mobile telephone had only been working for a little while but had then cut out because her battery had died. Counsel then said:- “During this particular day you were at school; do you know what time you left school on 1st February? I know it was early”. The complainant answered that she did not know what time she had left and that the times were not necessarily accurate. That there was no direct question as to whether she was at school that particular day has turned out to be unfortunate for reasons to which we shall turn later. Prosecuting counsel then asked whether she had phoned any boy or taken a telephone number from any boy on the day that she alleged she had been raped. The complainant said no. She was then reminded that she had agreed that her father had found a boy’s number on her mobile and counsel asked whether she remembered the boy’s name. She replied: “It was Omar”. The answer must have come as a surprise to prosecuting counsel who told the Commission that she did not know what the complainant’s answers would be. The matter was then probed. 15. The complainant said that she had had Omar’s telephone number for a long time before the rape and had obtained it when she was with her cousin in Brixton. She said her cousin had spoken to him. This was a long time before the alleged rape. She said she had spoken to the boy called Omar on the phone but had not met him. At this stage it appears that the jury asked whether the Omar was the same person as the person in the dock and why her father had looked for a number on the phone. The judge himself, at this stage, asked whether Omar was the same Omar and prosecuting counsel indicated that she would come to that point later. 16. The complainant said that she had spoken to the person she referred to as Omar on two occasions and when he asked whether he could see her she had declined because she was busy and had to go to school and “that was it”. She was then asked a series of questions as to how her father had found the number of the person named Omar and accepted that it was in her “address book” on her mobile phone. She then said that this had occurred two months before the alleged rape. She said that the boy Omar whom she had met a ‘couple of months’ before and whose number she had programmed into her mobile phone was a different person from the person who raped her. She said he was short, black and 17. She said he looked nothing like the boy who had raped her. She had seen the boy, whose number she had entered on her mobile under the name of Omar, once again on the bus but that was before the rape. 17. It is important to underline contradictions in the complainant’s evidence which are emphasised by the Commission. The complainant told defence counsel in cross-examination that she had never met a boy called Omar, a denial she made twice, first to defence counsel, then the judge. In re-examination she admitted that she had met a boy called Omar, whilst denying that it was the same Omar who had raped her. In re-examination at first she said that although she had given Omar her mobile telephone number he had not given her his number, but that she had programmed it in when he had telephoned on another day. Later she said “he wrote it in and I saved it”. At the end of the re-examination the judge took up more of the jury’s questions, in particular as to how it came about that her father was looking for a number on her phone. She replied:- “He was just asking me who did I speak to on that day, or what boys do I talk to or something and he start looking through my phone and calling different numbers.” Judge: “Which day are you talking about when you say who I was speaking to that day which day was he referring to?” Answer: “The day when the incident happened.” (Our emphasis). 18. This appeal does not raise any criticisms of the judge’s summing-up. But it is relevant to observe, like the Commission, that the judge did not refer to these contradictions and discrepancies in the complainant’s evidence. It is possible that the jury missed the significance of the fact that the father’s focus had been on those boys to whom she had been speaking on the day of what she described as the incident. Her evidence had been that she had been speaking to a boy, also called Omar, but sometime before the alleged rape. But it could not be disputed, in the light of her re-examination, that she had stored on her mobile a number under the name of Omar. 19. By the time the defendant gave evidence it had emerged, as we have said, that his account was that the mobile telephone number on the complainant’s telephone was that of his friend whose telephone he had been using on that day. His evidence accorded with his proof. He told the jury that his friend had received a phone call from the girl’s father, asking to speak to Omar. He said he did not speak to her father. He then reiterated that he had a call from the girl who he knew as Shanice saying that she was going to “bunk off school and come and see me”. He then appreciated that she was not 16 and did not want to see her anymore. The judge summarised this issue to the jury:- “The evidence that [L] came to give in her evidence before you in her cross-examination and re-examination about the name Omar being on her mobile phone diary, the defence submit that the evidence of L that emerged in the evidence before you, that she had a boy’s name, Omar, on her phone, strongly undermines her evidence that she was raped by Omar Bryan on 1 st February 2005. The submission is being made to you ‘look, she has the name of the chap on her mobile diary, her mobile phone diary. That indicates that she is a downright liar.’ The Crown say that you should accept her explanation about this piece of evidence. So those are the rival submissions about that.” 20. The judge then drew attention to her agreement that her father had found a boy’s name, Omar, on her mobile phone on that day. He reminded them that that was a different boy who did not look anything like the boy who had raped her. He reminded the jury of the defendant’s account that his friend had received a call from her father. In doing so, the judge stressed on three occasions in one passage that there was no independent evidence to support the defendant’s evidence that his friend, Ricky Johnson, had received a phone call from the girl’s father:- “Now it was the defendant’s evidence - - and members of the jury it does depend entirely on his word alone - - that his friend, probably Ricky, although it was not quite clear, had received a call from dad, wanting to speak to him, Omar Bryan, because something had happened to his daughter, but the defendant said he did not speak to that person. But, you see, that piece of evidence, that call apparently made by L’s father was actually one that got through to the defendant’s friend, that is entirely based on the defendant’s account. There is no independent evidence at all, other than the defendant’s own account, that that is what took place.” 21. We emphasise again that this appeal is not an occasion to revisit any criticisms of the judge’s summing-up, a summing-up approved and commended when this court considered the application for permission to appeal. But with hindsight, the stress on the absence of any supporting evidence is of considerable significance in the light of evidence which the Commission has now obtained. Moreover, it serves to underline the fact that the prosecution was suggesting throughout that the defendant’s account was untrue and that he had never given her any phone number, let alone Ricky’s phone number, and thus her father could never have found it on his daughter’s telephone and never have phoned Omar, the defendant, or his friend Ricky. 22. But the essential basis of this appeal is that evidence has now been obtained which not only confirms that her father did telephone a number stored under the name of Omar, but also that he telephoned this defendant’s friend, Ricky Johnson. Before considering the significance of that evidence we should shortly outline the course of this defendant’s application for permission to appeal which came before the full Court of Appeal on 17 January 2007, the application having been referred by Mitting J. The grounds of application focussed upon the defendant’s vulnerability. They suggested that the interviews were obtained in breach of the code under PACE and that the case had not been properly investigated. The defendant relied both upon the failure of the police to recover the complainant’s mobile telephone and the further failure, irrelevant to this appeal, to obtain closed circuit television footage in relation to the evidence of a caretaker, called by the defence, whose evidence tended to suggest that the offence could not have occurred in the place identified by the complainant. The Court of Appeal dismissed these points as unarguable. Of more relevance to this appeal is the way it dealt with the issue of Omar’s name being stored on the complainant’s mobile telephone. Rafferty J emphasised that the complainant’s evidence was that the Omar to whom she had spoken was not the perpetrator of the rape. The court observed that the cross-examination which elicited the evidence that the complainant’s father had made a telephone call to a number of men including Omar must have been derived from the instructions of the defendant. Rafferty J continued:- “The jury must have known that the basis for that (from the defence point of view) useful line of questioning came from the dock.” [2007] EWCA Crim 63 paragraph 19 23. It is of note that the Crown sought, apparently both at the trial and on the application, to suggest alternative explanations as to how it was the appellant could have learned that the complainant’s father had telephoned a boy called Omar whose number was stored on his daughter’s mobile telephone. The Crown continued to deny that the complainant had the number the defendant had been using stored in her mobile and to assert that her father had telephoned a different Omar. Its suggestion was quoted, without demur, by the court:- “As to timing, the Crown suggested alternative explanations, and alternative explanations for the provision of Omar’s telephone number. Youngsters mix, word gets round. Perhaps information had passed by that or other means. It was before the jury from the applicant’s own mouth that he had seen L a few times post alleged offence.” (19) 24. The criticisms of the police investigation, both in relation to the mobile telephone evidence and closed circuit television, met with this response from the court:- “What is important in the submission of the Crown is that all these matters were squarely in front of the jury in detail and everyone clearly and unimpeachably reviewed in a summing-up of which there is no criticism. True it is that some investigation was made of the existence of closed circuit television footage, but, nothing such as could assist either party the matter went no further ( sic ). That is not sufficient to lay the groundwork for a criticism that the police were negligent or even lackadaisical in their investigation of the case.” Had the court been aware of the evidence subsequently obtained by the Commission it is unlikely it would have rejected the defence criticism of the investigation. 25. Following this court’s refusal of leave to appeal, the appellant submitted an application to the Criminal Cases Review Commission on 20 April 2007. In a thorough and clear statement of reasons for a reference to this court the Commission enclosed statements that had not previously been obtained from, amongst others, the appellant’s friend, the complainant’s father and from Lambeth Borough Council, the school register for the week beginning 31 January 2005, in respect of both the complainant and her friend with whom, she said, she left school on 1 February 2005. They also obtained evidence from other witnesses and interviewed counsel for both sides. 26. Johnson’s statement was taken on 30 January 2008. He states that before the allegation was made he had lent his mobile phone to Omar. He continues:- “After Omar had returned the phone I received some calls intended for him. One was from a man asking for Omar, who wasn’t there. The man said he wanted to speak to Omar about his daughter. I said Omar wasn’t there. The man didn’t give his name or his daughter’s name. He said he would call back and he did about a day later. On this occasion Omar was there and I handed the phone to Omar. I knew it was the same man as the day before. I didn’t hear any of the conversation and don’t know how long it lasted.” 27. The Commission interviewed the appellant on 10 March 2008. He gave an account of the mobile calls but, as the Commission point out, added extra details, which, the Commission notes, were to an extent inconsistent with what Johnson says. 28. The Commission interviewed the complainant’s father and took a statement on 18 March 2008. He was asked what steps he had taken after being told about the rape of his daughter. He said he remembered his wife telling him that his daughter had been receiving phone calls from boys and that she did not know who they were. He asked his daughter about this:- “She said she believed her friends were giving out her telephone number. [Her mother] showed me a number recorded on her mobile phone. I dialled that number either on her phone or my own. A woman answered. She had a very strong Jamaican accent. I said ‘this number keeps phoning my daughter’s phone and she doesn’t know who is calling, I want to know who is calling her’. The woman said it could be any of her boys. Then she called out ‘Omi’. I told her my daughter had had her phone confiscated because of these calls. I have been asked when this call took place, and I am sure it took place before the rape, several months earlier in late 2004. I know that the name Omar is often pronounced ‘Omi’ in Jamaican patois. When I got to the trial I saw the defendant’s name on the board. When I saw the name Omar I remembered the incident of the phone call. I attended the trial but did not hear all of the case. I cannot remember L being asked about a phone call I had made. But I do remember someone asking me about the phone call outside the courtroom. This person was saying the defendant had spoken to L’s dad. I replied I’d never spoken to Omar, I’d only spoken to his mother.” 29. The Commission report their view that the complainant’s father was being evasive as to the timing of the telephone call. They interviewed L and she was, apparently, adamant that her father had made the telephone call after the rape incident, as she had said at trial, and added that she still retained an independent memory of the call being made at that stage. Certainly, her evidence at trial is wholly inconsistent with her father’s evidence of a phone call taking place several months earlier. Indeed, the context in which he places the phone call powerfully suggests that he is in error about its timing, quite apart from what his own daughter says. 30. For the purposes of this appeal, it is of the utmost significance that the Crown’s written submission drafted by counsel who did not appear at trial was as follows:- “If the court is minded to receive fresh evidence then the respondent’s view as to what form the evidence should take is as follows. Statements taken from Lincoln Campbell and Ricardo Johnson by the CCRC could probably be read by the court. They add little to the evidence at the original trial and the respondent would not require these witnesses to be called .” (paragraph 9, our emphasis) 31. This response demonstrates that the prosecution do not dispute the evidence of this appellant’s friend, Ricardo Johnson. The Crown’s only argument was that the fresh evidence did not add anything significant to what the jury already knew and thus did not render the conviction unsafe. Counsel for the prosecution loyally repeated that submission and did not resile from the Crown’s stance that it would not cross-examine Ricardo Johnson. The Crown said that the jury already knew that L had stored the number of someone she said was a different Omar on her phone, that her father had called that number two days after the rape, and that the appellant had said his friend Ricky had received a call from the complainant’s father two days after the rape. 32. Of course it is true that the jury knew those facts. But the submissions of the Crown, in writing and before this court, demonstrate a striking change of approach. During the trial the Crown clearly disputed that the defendant had ever met the complainant and given her a number. The dispute was emphasised, possibly over-emphasised, by the trial judge’s continuing reference to the fact that the defendant’s account was unsupported. 33. The Crown continued to suggest that the name of Omar on the complainant’s phone was not a reference to this appellant on the application for permission to appeal. That is why this court was driven to speculate as to how the appellant might have learned of the phone call from the complainant’s father to someone who happened also to be called Omar. 34. Now it seems that the Crown do not even dispute Ricardo Johnson’s confirmation of the evidence of this appellant. This court must, therefore, proceed on the basis that it is proved that this complainant’s father did call the number of Ricardo Johnson’s phone. That has fundamental consequences in this appeal. It shows, as the Commission point out, that this appellant must be telling the truth when he says he met the complainant. There is no other sensible explanation as to how Ricky Johnson’s number came to be stored on the complainant’s mobile under the name of Omar. Any other explanation is merely fanciful. It involves a suggestion that although the appellant and the complainant had never met (other than when he attacked L) his friend’s number came to be stored on the complainant’s mobile under the name of some other person with the same first name as this appellant. The suggestion is absurd. To say that the evidence of Ricardo Johnson adds little to the evidence of the original trial is an inadequate response and, whilst we make no criticism whatever of counsel who has been compelled to take over this case, it is not a suggestion that should ever have been made. 35. It is of note that the only ground on which the prosecution relied was s.23(2)(b) of the Criminal Appeal Act 1968 in pursuing its argument that the evidence did not afford any ground for allowing the appeal. It did not suggest that there was no reasonable explanation for failure to call Ricardo Johnson. But we should note, in agreement with the Commission, that whilst greater efforts ought to have been made to contact him, the failure to do so is partly attributable to the late instructions from the appellant that his friend had received a telephone call from the father and to the focus of the defence on seeking to demonstrate the mental vulnerability of the appellant. 36. The undisputed evidence that the appellant’s friend did receive a phone call from the complainant’s father which could have only arisen as a result of that number being stored on the complainant’s phone is sufficient, in our view, to dispose of this appeal. Had the jury known that this appellant’s friend’s number was stored on the complainant’s phone under the name of Omar, it would have destroyed any sensible suggestion that the complainant and the appellant had not met and that the appellant had not provided the telephone number stored on her phone. It was powerful evidence that from the second interview the appellant had been telling the truth. As the Commission put it in its report:- “If the number – or one of the numbers – [the father] telephoned was Ricky’s, it follows that L had spoken to the person who gave her Ricky’s telephone number on the day of the rape. According to Mr Bryan’s account at trial, that person was him. His claim of a call received by his friend, now corroborated by Ricky, has to be assessed in this context.” 37. It is inconceivable that the judge would have directed the jury in the way he did had he known of the evidence of the friend. On the contrary, the burden of his directions was that the jury had to decide whether the complainant or the appellant was lying and he was at pains to stress that the defendant’s account was unsupported. Nor could the Court of Appeal have dismissed the application in the terms it did had it known of the telephone call to the appellant’s friend. There would have been no basis for it to record the Crown’s speculation as to how the appellant might have learned of the father’s telephone call. 38. Fundamentally, the new evidence establishes that the complainant and the appellant were not strangers and the basis of the prosecution’s case that the complainant had been raped by a stranger was fatally undermined. 39. That is enough to dispose of this appeal but it is not, as we have indicated, the only new evidence that the Commission has managed to obtain. During the course of the interview with the complainant’s father he told the Commission that he had walked the route with his daughter and two police officers and that on that occasion he believed his daughter had told him that on the day of the incident she had either not gone to school or left early in order to attend a record-signing in either Victoria or Oxford Street. He believed that the singer was called “Mario”. 40. The Commission established that there was a singer called Mario who had visited a recording studio near Oxford Circus where he had given interviews between 11.30 a.m. and 2.00 p.m. Moreover, the school register showed the complainant absent as ill on both Monday 31 January and Tuesday 1 February. Whilst it is true that the prosecution, in the re-examination to which we have already referred [14], assumed, without asking a direct question, that the complainant had been in school all day, it is striking that the complainant herself suggested that she had been in school and had merely left early. Interviewed on 21 July 2009 she said that she did attend school and was not present at registration. She also said she was only in school about ten minutes before leaving to go and see “Mario” in the West End. She said she came back to school in the afternoon and was there for the only lesson she attended, the last lesson given by a supply teacher in maths. She explained that she was asked to write her name on a piece of paper rather than on the normal register. Her evidence that there was a supply teacher is consistent with what she said at trial. The Deputy Headmaster attended before us but the prosecution did not require him to be called. Counsel told us, on prompting by the Deputy Headmaster, that the supply teacher was a former permanent teacher who was well aware of a procedure which would not have allowed the register to be taken in that way. Furthermore, it provides no explanation as to how the register showed that she was absent due to illness. There is some suggestion that the register was inaccurate for the following two days since it shows the complainant to have been present when she denies that she attended school because of the rape. 41. We need not resolve any issue as to the precise accuracy of the register. What is important is that the complainant now accepts that she was away from school during a substantial part of the school day and that she never revealed this at trial. It provides further support to the appellant’s own account that he had met her earlier and that it was on that occasion he supplied her with his friend’s mobile telephone number. Any jury would have regarded that evidence as being of significance. Whilst it is important not to be unduly harsh to a young witness of 15 who would naturally wish to conceal her absence from school, that concealment led to a misleading picture being painted for the jury. The jury must have proceeded on the basis that she had attended school until the time she told the jury she had left. 42. Sir Geoffrey Grigson, in argument, suggested that this new evidence may well have undermined the evidence of the complainant. It was material to an issue of collusion. But we need not reach any conclusion: the two girls were not in the same class and it may be that the complainant’s friend was unaware of the trip to see the singer Mario. 43. The new evidence considered either in combination or separately leads us to the conclusion that the verdict was unsafe. There is no rational way in which the evidence of Ricardo Johnson’s telephone number being stored on the complainant’s mobile phone under the name of Omar can be explained other than that she and the appellant had indeed met. There is no rational basis for putting forward the allegation of a rape committed by a stranger whom the girl had never met. It is for those reasons that we announced our decision to allow the appeal and order the immediate release of the appellant. 44. We cannot leave this distressing case without further observations. It is truly fortunate that the Commission exercised such conscientious hard work in obtaining evidence which so significantly undermined the safety of the verdict. Their diligence serves only to underline defects in the conduct of this case. Firstly, this case demonstrates the importance of a defence statement as required by s.5 of the Criminal Procedure and Investigations Act 1996 . Such a statement, contrary to popular superstition, assists the defence as well as the prosecution. Had such a statement been served it would have alerted the police to the importance of investigating the complainant’s mobile and to the need to obtain her itemised billing to see if the name Omar and the number had been saved and whether the calls had been made. If the police failed, as they did, to make such enquiries the defence could have applied under s.8 of the 1996 Act for specific disclosure. It would have then been in an even better position to criticise the police and to focus the attention of the judge and of the jury on the significance of the evidence. It would have demonstrated that the defendant was aware of the father’s call long before the complainant’s admission in re-examination. It might have compelled the prosecution to call her father and thus reveal the discrepancy between his evidence and that of his daughter. 45. Once counsel learned that it was in fact Ricardo Johnson’s mobile telephone that the appellant had been using, a supplementary defence statement could have been prepared and served. Since the trial, there is a statutory obligation to serve such a statement but we have made these remarks as to the importance of detailed defence statements and the need to update them pursuant to s.6(A) of the 1996 Act so as to demonstrate the assistance not only for the court and the prosecution but also for the defence that such a statement can provide. 46. Secondly, we note with concern the slow progress this case made once the Commission had undertaken its careful and important work. The reference was received by this court’s office on 11 September 2008 and representation orders were issued seven days later requiring grounds by the 2 October 2008. The case was clearly urgent but on 6 October 2008 the appellant’s counsel asked for an extension of time to lodge grounds and the Crown asked for time to respond in 21 days. The grounds were received on 21 October 2009 but the prosecution failed to brief counsel and sought an extension of time on 13 November 2008 until January 2009, since counsel in the trial was away. This application was, if we may say so, rightly refused by the Registrar. The Crown’s response came only on 1 December 2008. Where the Registrar exercises his discretion to seek a Respondent’s Notice under Rule 68.6(1)(a), or does so as a matter of course under Rule 68.6(1)(b) because the court is concerned with the CCRC reference, it is essential that the prosecution give the matter high priority and respond fully and within the 14 days provided for by the Rule, or within such further time as the Registrar or the Court may allow. We have already remarked on the inadequacies of the Crown’s response and its failure to grapple with the significance of the newly obtained evidence. Of course, the Crown might have indicated that it did not accept the evidence of Ricardo Johnson. But it never took that approach but merely persisted in asserting that the evidence made no difference. 47. There was further delay which was the fault of no one. The appellant’s skeleton argument was received on 17 March 2009 and the prosecution’s response on 5 May 2009. By 23 June, the evidence of the school records had still not been agreed but by 20 July, with a date fixed for 29 July, both counsel confirmed that all fresh evidence had been agreed. There were then further problems about listing the case which led to the first available date being that on 13 October, 2009. 48. We mention these dates because they demonstrate unacceptable delay between 21 October and 13 November 2008 due to the failure of the prosecution to brief counsel; this led to a request for an extension of time which was refused. This delay ought not to have occurred in circumstances where it was plain that the Commission, at least, took the view that the evidence it had obtained undermined the safety of the verdict. It was of the utmost importance that the prosecution grappled, as a matter of urgency, with that new evidence and reached a speedy conclusion as to the approach it would adopt. Moreover, agreement as to the fresh evidence was reached far too late. Of course, the prosecution had to be given time to consider its position and to consider whether it would agree that evidence. But, even allowing for circumstances which led to delay in the early part of 2009 beyond anyone’s control, thereafter the prosecution should have reached a conclusion far earlier as to whether it was going to challenge that fresh evidence. 49. Further, once it had agreed the fresh evidence, it should have considered, in conference with counsel, whether it was really appropriate to continue to oppose this appeal. For the reasons we have given, once the prosecution had decided that it would not require the appellant’s friend to be called, in reality it had no sensible response to the appeal. If that conclusion had been reached, as it should have been, much earlier, then this court’s office could have been notified and the case would have been listed immediately and the appellant released from prison. But in the result it was only on 13 October 2009 that he could be released. We were informed that there had been no discussion with senior officials representing the Crown Prosecution Service. We repeat that there is no criticism of prosecuting counsel who was not present at trial and who was merely loyally following instructions. But the absence of urgent but careful consideration seems to us to have led to an inadequate response to the concerns of the Commission in the light of the fresh evidence it obtained. 50. We can do no more than reiterate that the new evidence leads us to the conclusion that the verdict is unsafe and should be quashed.

```yaml citation: '[2009] EWCA Crim 2291' date: '2009-11-10' judges: - LORD JUSTICE MOSES - SIR GEOFFREY GRIGSON ```

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

IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202300645/A4 Neutral Citation Number: [2023] EWCA Crim 807 Royal Courts of Justice Strand London WC2A 2LL Friday 9 June 2023 Before: LADY JUSTICE MACUR MR JUSTICE CHOUDHURY MR JUSTICE CONSTABLE REX V BUZZ SMITH __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR S ROUTLEDGE appeared on behalf of the Appellant. _________ J U D G M E N T MR JUSTICE CHOUDHURY: 1. On 29 November 2022, the appellant pleaded guilty to two counts of assault occasioning actual bodily harm and one count of theft. On 31 January 2023, the appellant was sentenced to 14 months' imprisonment for each of the assaults and 6 months concurrent for the theft. The total sentence was therefore 28 months' imprisonment. He now appeals against that sentence with the leave of the single judge. 2. The background to this matter was as follows. The appellant is now aged 31. He was aged 29 at the time of the offence. Complainant 1 was 17 years old at the time of the offence. Just after 9.00 pm on 8 April 2021, complainant 1 was walking along a cycle path close to the Brockley Whins Metro station. He was using his mobile phone when he was approached by the appellant. The appellant aggressively asked complainant 1 for a "fag". When complainant 1 said he did not have any cigarettes, the appellant punched him in the face, knocking him to the ground. The appellant demanded complainant 1's iPhone and bag. Complainant 1 handed his iPhone to the appellant who repeatedly asked what was in the bag. Before complainant 1 could hand it over the appellant ran off towards a nearby footbridge. Complainant 1 felt confused and for a while did not know what to do. He saw the appellant on the footbridge and decided he would walk back to the Metro station to seek help there. He pressed a “Help” button and reported the assault. Upon being told that it might take a while for the police to arrive, he decided to go home. He felt pain in his face and his mouth was bleeding. The punch had caused one of his front teeth to fall out and another one to become loose. This injury required frequent visits to the dentist and the complainant's missing front tooth has still not been replaced. 3. Complainant 2 was 14 years old at the time of the offence. He was travelling on the Metro on 8 April 2021 with a group of his friends. The appellant boarded the same train and sat next to complainant 2 and his friends. The appellant was friendly to begin with, but he then lit a cannabis joint, and his demeanour changed. The appellant's tone of voice became aggressive. Complainant 2 and his friends got off the train at the same station as the appellant, namely Brockley Whins. Complainant 2 walked with his friends across the footbridge when he heard that someone had been hit, this being a reference to the incident between the appellant and complainant 1. Complainant 2 turned round to see what had happened. The appellant walked up to complainant 2 and said: "Who the fuck are you talking to?" Complainant 2 replied that he had not been talking to the appellant, and that he had just been checking if the man who had been hit was all right. The appellant then punched complainant 2 on his left cheek and said: "Give me all your green". Complainant 2 covered his face with his hands to protect himself and he told the appellant he had no "green". An unknown man approached complainant 2 and asked if he was okay. The appellant then punched the unknown man, turned back to complainant 2 and punched him once more to the right side of his face. Complainant 2's glasses were knocked off by the punch and he could not see properly. He suffered from a headache and felt sick after the assault. He also sustained a bruise and graze to his right eye. 4. In sentencing the appellant, the judge categorised the assault on complainant 1 as a category B1 offence, that is to say medium culpability and high level of harm; the latter involving serious physical injury and/or substantial impact on the victim. A category B1 offence has a starting point of 18 months and a range of 36 weeks to 2½ years. The judge then categorised the assault on complainant 2 as a category 2A assault, that is to say high culpability because the victim was obviously vulnerable due to age and harm falling between category 1 and 3. A category 2A assault also has a starting point of 18 months and a range of 36 weeks to 2½ years in custody. The theft was categorised as medium culpability category 3 offence, for which the starting point is a high-level community order and a range of a low-level community order to 36 weeks. 5. The judge noted aggravating features including a number of offences of minor violence and public disorder, and the fact that the appellant was under the influence of cannabis at the time of the offence. He also noted the location of the offence and the fact that it was in a public place. The judge concluded that the sentence after trial would have been in the region of 3 years for all of the offending. Taking account of the discount of 15 per cent for the guilty pleas, the judge imposed the sentences described above. 6. Mr Routledge, in concise and helpful submissions on the appellant's behalf, submits that the categorisation of the offending was too high. He suggests that the assault on complainant 1 should be a category 2B offence rather than 1B, with a starting point of 36 weeks’ and for complainant 2, it should be 2B also with a starting point of 36 weeks. He further submits that if the sentence is reduced so as to be eligible for suspension, suspension should be ordered in this case. In those circumstances, he submits that the sentence of 28 months' imprisonment is manifestly excessive. 7. Dealing first with categorisation, we are unable to agree with Mr Routledge that the judge erred in this respect. The judge is entitled to conclude, based on the victim personal statement, that there had been a substantial impact upon complainant 1. That, in conjunction with the physical injury to his teeth, amply justified, in our view, a categorisation of 1B. 8. As for the assault on complainant 2, the judge was similarly entitled to conclude that this 14-year-old schoolboy was vulnerable due to age. However, we bear in mind that this is factor that covers a wide range of ages. Thus, although we do consider that although there is a degree of vulnerability, given the age of the victim in the present case, this would be such as to fall at the lower end of the bracket. As to harm, the victim personal statement indicates that the victim has had to change his behaviour, sleeping with a spanner to hand and changing his behaviour at school. Such evidence entitled the judge to conclude that there was more than just a limited impact on the victim so as to place the offending in category 2A. 9. Although we do not disagree with the categorisation, we consider that in respect of complainant 2 any vulnerability by reason of age would, as we have said, fall at the lower end of the category. For that reason, and taking into account totality, we consider that the sentence of 28 months for this offending overall was manifestly excessive and, in our judgment, a sentence of 22 months overall, comprising 12 months for the first assault and 10 months for the second assault would be just and proportionate having regard to the overall level of criminality involved. 10. Accordingly, the appeal is allowed to that extent. The sentence of 28 months is quashed and replaced with one of 22 months. Although that would render the sentence eligible for suspension, we do not consider this to be an appropriate case for a suspended sentence to be imposed. The offending in this case involved wholly unprovoked attacks on children. The appropriate punishment can only be achieved, in our view, by a sentence of immediate custody. 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 807' date: '2023-06-09' judges: - LADY JUSTICE MACUR - MR JUSTICE CHOUDHURY - MR JUSTICE CONSTABLE ```

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Neutral Citation Number: [2011] EWCA Crim 1143 Case Nos: 201006740 C4 201006739 B1 201006989 B2 201100114 B2 201100774 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOLVERHAMPTON CROWN COURT HARROW CROWN COURT LINCOLN CROWN COURT BIRMINGHAM CROWN COURT HIS HONOUR JUDGE WALSH HER HONOUR JUDGE MORRIS HIS HONOUR JUDGE MORRIS HIS HONOUR JUDGE TOMLINSON T20100532 & T20107370, T20100410, T20107057, T20097879 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/05/2011 Before : LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEALCRIMINAL DIVISION MR JUSTICE TREACY and MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - - - - - - - - - - Between : Twist & Others Appellant - and - The Queen Respondent Mr P Brunt (instructed by Central Law Ltd ) for the Appellant A T Twist Miss M Simpson (instructed by Lloyds PR ) for the Appellant L. Mr W Saunders (instructed by Cartwright King ) for the Appellant R Tomlinson. Mr W Saunders & Miss Z Van Den Bosch (instructed by Cartwright King) for the Appellant L. Kelly. Mr J Butterfield (instructed by Glaisyers for the Appellant R Boothman. Mr L Mably (instructed by Crown Prosecution Service ) for the Crown Hearing dates : Hearing date : 12 th April 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes : 1. These four cases, which we have heard together, raise questions connected with the way in which the comparatively new rules upon hearsay contained in the Criminal Justice Act 2003 apply to communications made to, or by, the defendant. These cases all happen to concern text messages sent by mobile telephone. No doubt messages of that kind are frequently encountered at the moment, because they are currently a very popular form of communication. The principles, however, apply equally to all forms of communication. The overhearing, deliberate or accidental, of one or both ends of a communication is by no means new. A text message is, in the end, significantly different neither from an E-mail nor from a letter, nor from an overheard remark made to a person with whom the speaker is in conversation whether together in the same place or via telephone or other remote device. Sometimes the evidence is of one end of the conversation only, sometimes it is of both, and sometimes the evidence of one end includes reaction to the other speaker from which it may be possible to infer what the other has said. 2. Of the four cases which we have to decide, three are concerned with messages received by the defendant. In Twist and Boothman the indictment required proof of an intent to supply drugs. The messages received by the defendant were – or were contended to be - requests that he supply drugs. In Tomlinson & Kelly the indictment charged robbery and a key issue was whether the defendants had had a gun in their possession at a time when the alleged victim said that they had. The message received by one of the defendants was a request for a gun to be delivered to the sender. The fourth case, Lowe , differs because the messages relied on were outgoing messages sent by the defendant himself. He faced a charge of rape of his young girlfriend. The issue was consent, and in particular whether he had forced himself upon her in the course of a row, or had had consensual sexual intercourse with her, followed by an unconnected row. The messages were sent by him to the complainant in the ensuing two days and were contended by the Crown to amount either to confessions of rape or at least to significant admissions against interest helping to prove that there had been rape. 3. Although it employs the word sparingly, the Criminal Justice Act 2003 contains a complete code for hearsay in those criminal proceedings to which the strict rules of evidence apply (s 134). As is well known, the statute followed in time a comprehensive report of the Law Commission on hearsay (LC 245, 1997). It largely adopts the draft bill provided by the Commission, although there are some differences (not material to the present issue) between the bill and the statute as enacted. What is undoubted is that the Act abolishes the common law of hearsay except where it is expressly preserved; this court so held in Singh [2006] EWCA Crim 660 ; 2 Cr App R 12 at 201. 4. It is not necessary to set out most of the provisions of the Act . The key ones for this purpose are the opening words of section 114(1) and the whole of section 115. Whatever may be the position elsewhere in the Act , neither of these departs by so much as a comma from the Law Commission’s draft bill. 5. Section 114(1) delineates the scope of the provisions which follow. Under the side-heading “Admissibility of hearsay evidence” it reads: “(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if —……..” and it then goes on to set out the well known four alternative bases of admission: statutory authorisation, preserved rule listed in section 118, the consent of all parties and the court’s decision that it is in the interests of justice to admit the evidence. Thus the default position is that hearsay is inadmissible, unless it qualifies for admission under one or more of these four bases. 6. These important opening words of section 114 “admissible as evidence of any matter stated ” demonstrate that the Act involves asking what it is that a party is seeking to prove. This is unsurprising. Most (but not all) communications will no doubt contain one or more matters stated, but it does not always follow that any is the matter which the party seeking to adduce the communication is setting out to try to prove, i.e. that the communication is proffered as evidence of that matter. He may sometimes be trying to prove simply that two people were in communication with each other, and not be concerned with the content at all. On other occasions he may be trying to prove the relationship between the parties to the communication but not be in the least concerned with the veracity of the content of it. And there may, of course, be occasions where what he seeks to prove is that a matter stated in the communications is indeed fact. The opening words of section 114 show that it is the last of these situations which engages the rules against hearsay. 7. Section 115 needs to be set out in full. It provides wholly new definitions of ‘statement’ and of ‘matter stated.’ It reads: “(1) In this Chapter references to a statement or to a matter stated are to be read as follows. (2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form. (3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been — (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated .” Section 115(3) thus imposes a crucial limitation on the otherwise general expression “matter stated”. It is not enough that the matter is stated. It is governed by the hearsay rules only if one of the purposes of the maker was as set out. 8. The Act does not use the expression “assertion”. Instead it speaks of a “statement” and the “matter stated” in it. That seems likely to have been because its framers wished to avoid the complex philosophical arguments which beset the common law, as explained in DPP v Kearley [1992] 2 AC 228 , as to when an utterance contains an implied assertion. That was a case of telephone calls to the home of the defendant, all seeking the supply of drugs, on which the Crown sought to rely as evidence that he was in the habit of supplying them. The House of Lords held, by a majority, that the calls amounted to “implied assertions” that the defendant was a drug dealer and that they were for that reason hearsay. It was accepted by counsel in R v Singh [2006] EWCA Crim 660 ; [2006] 2 CR App R 12 at 201, and held by the court at paragraph 14, that the evident intention of the Act was to reverse Kearley . That is also apparent from the Law Commission report, see in particular paragraphs 7.20-22, 7.26-27 and 7.41. There is no trace of any change of policy in the statute and the policy is unsurprising. The principal underlying reason why hearsay evidence is only admissible in limited circumstances lies in the danger of concoction and the difficulty of testing or contradicting it when the speaker is not in court to be examined upon it. But as the Law Commission put it at paragraph 7.20: “Where there is a substantial risk that an out-of-court assertion may have been deliberately fabricated, therefore, we think it right that the assertion should fall within the hearsay rule – whether it is express or implied. It follows that the rule should extend to any conduct which is intended to give the impression that a particular fact is true, and is adduced as evidence of that fact. But where that risk is not present – in other words, where the person from whose conduct a fact is to be inferred can safely be assumed to have believed that fact to be true – we do not think a court should be precluded from inferring that fact merely because that person may have been mistaken in believing it. And if that person did not intend anyone to infer it, it follows that that person cannot have been seeking to mislead.” In Kearley itself, at 248-249 Lord Bridge was one of those who felt that it was too late to modify judicially what he held to be the common law rule applying hearsay rules to implied assertions. He nevertheless recognised the same argument. He referred to the US federal rules of evidence which had abolished that rule and substituted one confining the concept of hearsay to express assertions and conduct intended to amount to assertion, which outcome was interpreted to mean that assertions had to be intended to persuade in order to be caught by the hearsay rule. He identified: “…the only rational ground for excluding from the scope of the hearsay rule assertions which are not express but implied by the words and conduct of persons not called as witnesses. Put shortly, the speakers’ words and conduct are motivated quite independently of any possible intention to mislead and are thus exempt from the suspicion attaching to express assertions and are, in that sense, self authenticating.” 9. It is therefore helpful, as it seems to us, that the Act avoids the use of the expression “assertion” altogether, and with it the difficult concept of the “implied assertion”. Instead, the Act concentrates the mind on the ‘matter stated’, which it is sought to prove. This is defined by reference to the purpose of the maker (ie usually the speaker or sender of the communication). The matter stated must be something which the maker intended someone (generally the recipient, since it is to him that the communication is addressed) to believe or to act upon: s 115(3). 10. The ‘matter stated’ will usually be a fact, but may also be an opinion: s 115(2). For convenience we shall refer hereafter to facts, but the same applies where the matter stated is an opinion. 11. There are therefore two questions which have to be addressed in most cases: i) what is the matter which it is sought to prove ? (it must of course be a relevant matter), and ii) did the maker of the communication have the purpose of causing the recipient to believe or to act upon that matter ? 12. In addressing these questions, and the application of the Act generally, it needs to be remembered that to say that a communication is evidence of a fact (ie tends to prove it) is not the same as saying that that fact is the matter stated in the communication for the purposes of the Act . 13. If a buyer for a large chain store telephones the sales director of a manufacturer, with whom he routinely does business, and orders a supply of breakfast cereal or fashion jeans he is generally not representing as a fact or matter either (a) that the sales director’s firm manufactures the flakes or the jeans or (b) that he the buyer works for the chain store. Crucially for the application of the Act , even if it be suggested that the order should be construed as an “implied assertion” of either fact (a) or fact (b), it will be beyond doubt in most cases that the caller does not have it as one of his purposes to cause the recipient to believe or act upon either of those facts. The recipient knows them very well. Those are simply the facts (or matters) which are common knowledge as between the parties to the call. Neither is, therefore, a matter stated in the call for the purpose of sections 114 and 115. The call is however evidence of both fact (a) and fact (b). It is not, no doubt, conclusive, at least if there is any realistic possibility of mistake, but it is undoubtedly evidence of those facts. Conversely, if the caller tells the recipient, perhaps in order to induce him to speed up the supply, that the buyers have already sold 5 tons of the goods, it is his purpose to induce the recipient to believe that fact. If that were the fact sought to be proved, the call would be hearsay evidence of that matter . 14. If there is a queue of young people outside a building at midnight, obviously waiting for an evening out, that is some evidence tending to prove that the building is being operated as a club, which may be the matter which it is sought to prove, perhaps in licensing proceedings. There is no statement of that matter for the purposes of the Act . If several of the queuers were heard to be telling others about last week’s ‘rave’, the only way that could possibly be regarded as a statement of the fact that this was a club would be by treating it, artificially as it seems to us, as an implied assertion of that fact. But it makes no difference whether it is so treated or not, because none of the speakers would have the purpose of inducing any listener to believe or to act upon the fact that the place is a club, since that is simply a common basis for conversation, and all of them know it. Conversely, if the issue is not whether the place was a club, but rather whether there was a large event the previous week, the statement of the fact/matter that there had been such an event would indeed be caught by the hearsay rule; those who spoke of it were doing so with the purpose of inducing their hearers who had not been there to believe it. The out of court statement would indeed be hearsay evidence of that matter. 15. Some communications may contain no statement at all. If, for example, the communication does no more than ask a question, it is difficult to see how it contains any statement. A text message to someone asking “Will you have any crack tomorrow ?” seems to us to contain no statement at all. But even if it be analysed as containing an “implied assertion” that the recipient is a drug dealer, that fact is still not a “matter stated” for the purposes of sections 114 and 115(3) because the sender does not have any purpose to cause the recipient to believe that fact or to act upon the basis that it is true. They both know it, and it is the common basis of their communication. 16. Similarly, it is important when applying the statute to distinguish between: i) the speaker wishing the hearer to act upon his message ; and ii) the speaker wishing the hearer to act upon the basis that a matter stated in the message is as stated (ie true). Only the second will bring into operation the hearsay rules. If the sender asks whether the recipient will have any crack tomorrow, he does indeed want the recipient to act on his message because he hopes to extract an answer to his question. Even more clearly he does so if he goes one step further and asks for crack to be sold to him tomorrow, because then he hopes to receive a supply. But in neither case does he have the purpose of causing the recipient of his message to believe that the recipient is a drug dealer, or to act on the basis that that is the truth. 17. Generally, therefore, it is likely to be helpful to approach the question whether the hearsay rules apply in this way: i) identify what relevant fact (matter) it is sought to prove; ii) ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication); iii) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true ? If yes, it is hearsay. If no, it is not. 18. The answers to these questions will be case-sensitive. The same communication may sometimes be hearsay and sometimes not, depending on the matter for which it is relied upon and the fact which it is sought to prove. 19. In addressing these questions, we would strongly recommend avoidance of the difficult concept of the “implied assertion”. That was described by the Law Commission, rightly in our view, as “a somewhat unfortunate expression” (paragraph 7.7). As the Commission went on to point out: “First, it begs the question of whether the words or conduct in question are an assertion of the fact that they are adduced to prove. It is at least arguable that they are not assertive at all, but directly probative – in which case it would follow that they should not be caught by the hearsay rule. 7.8 Second, the word “implied” is here used in an unusual sense. Normally it refers to a statement which is not expressly spoken or written but is intended to be understood from what is said or done. But where there is an assertion of the fact to be proved, it is immaterial whether that assertion is express or (in the ordinary sense) implied. An assertion of a fact is no less of an assertion because it is implicit in an express assertion of a different fact, or because it takes the form of nonverbal conduct such as a gesture. An assertion can therefore be implied (in the ordinary sense) without being what is described in the context of hearsay as an “implied assertion.” As we have sought to explain, it no longer matters whether a statement is analysed as containing an implicit (or “implied”) assertion if the speaker’s purpose does not include getting anyone else to accept it as true. 20. It is also important to remember that deciding whether one or more communications is or is not hearsay may not be the end of the issue of admissibility. Even if the communications are not relied upon for their hearsay content, as that is defined by the Act , that does not relieve the court of applying the usual tests for admissibility. The fact which it is sought to prove must be a relevant fact; otherwise the evidence is inadmissible on grounds of irrelevance. And secondly, it is necessary that that fact is indeed a legitimate conclusion to be drawn from the evidence. If, for example, the only thing which the communications are capable of proving is that the senders held an opinion that x was a fact, that would not generally be admissible as proof of fact x, though it would be admissible, if the issue were whether they believed x, to show that they did: see Kearley where this point was plainly made. If, on the other hand, it is a proper conclusion to draw from the evidence of a communication, or of a number of similar communications, not only that the sender held an opinion but also that there was an existing relationship between him and the recipient, for example of buyer and supplier, or otherwise that a relevant background fact plainly existed, then the evidence, assuming it is not within the Act ’s concept of hearsay, is admissible on that issue. What the evidence is capable of proving will depend on the facts of each case. It will be necessary, in some cases, for judges to focus the jury’s attention carefully on what it is that the evidence is and is not capable of proving. 21. Further, to say that a communication is not hearsay and that it is admissible evidence tending to prove a fact, is not to say that it is unanswerable or conclusive. To take an example, a single message requesting the supply of drugs, or for that matter a gun, might have been misdirected by mistake, or might be based on a mistaken belief that the recipient is likely to be able to supply what is asked for. No doubt, the more similar messages there are, sent independently of one another, the more likely it is that they do prove the fact alleged, but that will depend on what possible alternative explanations there might be for the evidence. Whether a communication which is not hearsay does or does not prove the fact alleged is always a matter of weight for the jury. 22. It ought not to be thought that it makes little difference whether the court is dealing with hearsay or not. True, there is a discretion to admit hearsay evidence if satisfied that the interests of justice require it (section 114(1)(d) and (2)). Sometimes the contents of a communication may be admissible by this route even though hearsay. But: i) admission under section 114(1)(d) is not routine, nor a matter of mere form; it requires careful thought, having due regard to (especially) reliability and the opportunity to test it: see for example R v Y [2008] 1 Cr App R 34 at 411, at paragraphs 56-62, and R v Z [2009] EWCA Crim 20 at paragraphs 20-24; ii) there are different rules applicable to hearsay; see for example section 121 where there is multiple hearsay, the power contained in section 125 to stop a case dependent on hearsay if the evidence is so unconvincing that a conviction would be unsafe and the general discretion under s 126 to refuse to admit a statement on grounds of undue waste of time; iii) if the maker(s) of the communication is or are unknown, that will be very relevant to whether their hearsay evidence ought to be admitted; we have not heard full argument upon this point and do not decide it; however, we draw attention to the fact that no anonymous witness order under ss 86 -89 of the Coroners and Justice Act 2009 can be made in a case of fear in relation to evidence which is hearsay, because of the existence of s 116(1) (c) of the 2003 Act which requires the fearful witness whose hearsay is adduced to be identified: R v Mayers [2008] EWCA Crim 2989 ; [2009] 1 Cr App R 30 ; whilst there may be some forms of anonymous hearsay which are nevertheless admissible, such as business records or the statement of an unidentified agent of the defendant, the hearsay testimony of an anonymous witness may well fail the interests of justice test of admissibility; an example is Fox [2010] EWCA Crim 1280 , where the contents of an anonymous 999 call were inadmissible as evidence that the facts reported were true; that case is a good example of a communication which certainly was relied upon for the accuracy of the matter stated in it and without, so it would appear, the limited circumstances of spontaneity which would permit admission under the principle of Andrews [1987] AC 281 , one of the rules preserved in section 118. 23. Our understanding of the Act , set out above, was foreshadowed by Rose LJ in Singh [2006] EWCA Crim 660 ; 2 Cr App R 12 at 201. The court was there not considering a communication at all, but rather the note for himself that a mobile telephone user makes when he enters in the memory of his telephone the number of a contact. This was in similar case to a private diary entry which is written for oneself and no-one else; the maker of the entry has no purpose to cause anyone else to believe or act upon the truth of the entry – it is entirely for his own use and for that reason is not hearsay. It was therefore admissible evidence to tend to prove that the telephone number in question was used by the defendant, the person to whom the entry was attributed. But the court expressly considered the impact of the 2003 Act on Kearley . At paragraph 14 it said: “What was said by the callers in Kearley would now be admissible as direct evidence of the fact that there was a ready market for the supply of drugs from the premises, from which could be inferred an intention by the occupier to supply drugs. The view of the majority in Kearley , in relation to hearsay, has been set aside by the Act .” 24. We were referred to R v Leonard [2009] EWCA Crim 1251 . That case concerned incoming text messages received on the defendant’s mobile telephone which commented upon the quality or quantity of drugs previously supplied. They were relied on by the Crown in a case in which the defendant was indicted for possession of drugs with intent to supply. The conclusion reached in the judgment (delivered by Aikens LJ) was that the messages were hearsay. But that case proceeded upon the basis, apparently accepted by the Crown, that (a) the quality/quantity of past supplies was a matter stated in the communications, and more importantly (b) that the Crown was seeking to prove that matter in order through that route to prove that the defendant was a dealer in drugs: see paragraph 36. Of course, if those two things were correct, it does indeed follow that the evidence is hearsay, because clearly the senders of the messages intended the defendant recipient to believe the comments about the goods. It would clearly have been different if the Crown had relied on the messages not to prove the quality of past supplies (and through this route that the defendant was a dealer) but merely to show that the relationship between the parties was one of drug customer and drug supplier, without any attempt to prove the quality of the past supplies. Some academic commentators have suggested that that was in reality what the Crown sought to do, but that was not the basis of the decision. We therefore do not think that Leonard compelled the reluctant assumption made in Bains [2010] EWCA Crim 873 that the text messages in that latter case were hearsay, but Bains in any event did not decide that point, referring simply to the concession made in Leonard . That it is crucial, as we have said above, to look carefully at what fact it is sought to prove, emerges clearly from considering Leonard alongside another decision of this court, not long afterwards, in which the judgment was also given by Aikens LJ: R v Chrysostomou [2010] EWCA Crim 1403 . There the relevant texts appeared to be orders for drugs. They were relied upon to prove bad character rather than directly to prove the offence charged, which was not a drugs offence, but that feature does not affect the question of whether the evidence was hearsay or not: it would of course be very relevant to the discretion to exclude evidence tendered as to bad character (see section 101(3) Criminal Justice Act 2003 ). The court held that the evidence was not hearsay. It relied specifically at paragraph 28 on what it was the Crown was setting out to prove: not the contents of the messages but the state of affairs which they revealed. That is consistent with the analysis of the Act which we have endeavoured to set out. In the terms of our analysis, the matter sought to be proved was the relationship between the sender of the messages and the defendant. The sender did not have the purpose of getting the defendant to believe or act upon that matter; it was simply the common knowledge revealed by the messages. 25. R v MK [2007] EWCA Crim 3150 is clear support for our approach to the application of the statute. The Crown sought to prove that the defendant was guilty of offences of drug trafficking. Part of its evidence was of a telephone call made to him, in which a person who was known to be wishing to make a subsale of drugs enquired the defendant’s price for amphetamine. This court allowed a Crown appeal against a ruling by the recorder that that conversation was inadmissible hearsay. It did so on the grounds that there was no representation in the call of the fact that the defendant was a supplier of drugs and that in any event the caller’s purpose did not include getting the defendant to believe or act upon the truth of that fact. Although in Leonard doubt was expressed about the second of those propositions, it is perfectly clear that it was part of the decision and it was, in our view, plainly correct. 26. R v Elliott [2010] EWCA Crim 2378 is a further illustration of the correct approach. It was relevant for the Crown to prove that the defendant was an adherent to a gang. It sought to rely (inter alia) on some letters sent to him in prison which contained references to membership of the gang and symbols signifying the same. This court held that this evidence was not hearsay, because the authors of the letters did not have the purpose of causing the defendant to believe any representation that there might be, nor to act upon its truth. Common membership of the gang was simply the shared basis of the communications. Twist 27. The defendant was arrested in possession of a large wrap of heroin weighing 9.18g and worth about £450, and also of a single small wrap of the same drug weighing 0.18g and worth about £10. He also had £232 in cash. Just before his arrest he had driven up in his car and had met and picked up another man, plainly and admittedly by arrangement. He had driven that man a short distance along the road and then set him down. The other man was a known heroin user. At his trial he admitted simple possession of the drugs found on him but he denied any intent to supply. He contended that his meeting with the other man was nothing to do with drugs but was because that man owed him money. Apart from the evidence thus far summarised, tending to demonstrate intent to supply by possession of bulk as well as a single deal and by a meeting wholly consistent with an act of supply, the Crown wished to adduce evidence of 24 text messages received on the two mobile phones he was using at the time and which were, in large measure, requests for the supply of drugs. They were received over a period of about five days up to the afternoon of the defendant’s arrest. 28. The judge ruled that the messages were not hearsay because any assertion was merely implied and the purpose for which they were relied upon was not to prove any fact or matter stated in them. He indicated that if he were wrong about that, he would admit the messages as hearsay in any event, on the grounds that it was in the interests of justice to do so. He referred to R v Chrysostomou . 29. In our view these messages were not hearsay. The matter sought to be proved was that the defendant was a supplier of drugs. That was a relevant matter, indeed the prime issue in the case was whether he was or was not. The messages did not amount to or contain any statement that he was. Even if they could be said to amount to an implied assertion that he was, the purpose of the senders did not include causing him or anyone else to believe that he was. Further the messages justified the conclusion that there was an existing relationship of buyer and seller between the senders and the defendant. Accordingly they were rightly admitted. It is unnecessary to consider the alternative basis of admissibility if they were hearsay. 30. We give leave but the appeal against conviction must be dismissed. Boothman 31. Boothman was one of three defendants charged with two counts of conspiracy to supply drugs, respectively cocaine and cannabis. He pleaded guilty to the cannabis count but denied the cocaine count. As well as adducing evidence of observation and of findings of drugs, cash and paraphernalia, the Crown relied on the retained contents of well over one hundred text messages, passing in both directions. It was apparent that many of the outgoing ones were advertisements sent by the defendant to potential drug purchasers, telling them that he had good stock available. There was, rightly, no objection taken to the admissibility of these outgoing messages, which were his own advertisements. The incoming messages were fairly clearly orders for drugs or comments on past supplies made to the senders. Some were in terms about cannabis, and so not in issue. But on his behalf, Mr Butterfield contends that incoming messages were hearsay and thus that those which, in particular, spoke of cocaine (for example by referring to the number of ‘lines’ derived from a recent supply) ought not to have been admitted. He contends that these messages could only go to prove cocaine dealing by relying on the express representations contained in them, such as the reference to ‘lines’, and that this is impermissible. 32. In our view these messages were not hearsay, for reasons largely the same as in the case of Twist . The fact sought to be proved was that the defendant was dealing in cocaine, as well as in cannabis. That was a highly relevant fact. There were representations (statements) to that effect in some of the messages, and others carried that meaning. But in none of the messages did the sender have it as one of his purposes to make the defendant believe that he was a supplier of cocaine, or to act on the basis that that representation was true. They no doubt wanted him to act on their orders, but that, for the reasons explained, is not the same thing as wanting him to accept the truth of their references to his cocaine dealing. The distinction drawn by Mr Butterfield between express representations and those which are not express was relevant under Kearley but is no longer so. There was scope for debate about the meaning of some of the messages, but evidence was called as to the import of the slang expressions used. Whilst the evidence was not perhaps conclusive it more than justified the conclusion that the defendant was dealing in cocaine. 33. We give leave, but the appeal against conviction must be dismissed. Tomlinson and Kelly 34. These two defendants were charged with robbing two girls with whom they had spent a weekend at the home of one of the girls. The other girl had been discovered to be in possession of £500 given to her by her mother as a 21 st birthday present. According to the girls, the defendants had forced their way into the room where the money was in a locked cupboard and had extracted it from them at gunpoint. The girls both said that they had seen the gun on earlier occasions. Both said they had then been given a spent cartridge as a memento, and one of them was able to produce it. The existence of the gun was in dispute, as indeed was nearly everything else, including the existence of the money. 35. On the mobile telephone of Tomlinson was a message which read: “Need dat gun today so can sell it and give you lot da tenner back. Does faws still want it ?” There was some evidence that the sender was known to the defendants because on Kelly's phone the number of the sender was in the list of recorded contacts and attributed to someone whom Kelly called 'Popy'. The message was sent and received on the morning of the alleged robbery and before it took place. 36. The defendants sought to exclude the evidence of the message on the basis that it was hearsay. The judge held that there were strong grounds for saying that it was not, but in case it was, he would admit it in any event under section 114(1)(d). 37. In our view, the message was not hearsay. The matter which it was sought to prove was that the defendants were in possession of a gun, as the girls said they were. That was a highly relevant issue. There was, maybe, a statement in the message that they were in possession of it; certainly if the terms of the message were expanded without altering its sense to “Need dat gun which you have….” that would be clear. But it was not one of the purposes of the sender to cause Tomlinson, or anyone else, to believe that Tomlinson had a gun in his possession. That was simply the common understanding of sender and recipient underlying the communication. Therefore the message was not within the Act ’s concept of hearsay. Further, the conclusion which could legitimately be drawn from it was not confined to the fact that the sender believed that the defendants had the gun, but extended to the conclusion that they did indeed have it. Accordingly the message was correctly admitted. There was an issue as to whether it might have been misdirected, but that was a decision of fact for the jury. 38. We give leave, but the appeals against conviction must accordingly be dismissed. Lowe 39. The defendant who was aged 15 was charged with two rapes of his girlfriend of the same age, allegedly committed on the same occasion, in a local park. The issue was consent. It was common ground that they had had consensual sexual relations in the past, including in the park. The Crown case, however, was that on the day in question they had met after school, were in the course of a row, and that the defendant had dragged the complainant into the park and forced himself upon her twice. His case was that the sexual intercourse was entirely consensual, although afterwards they had fallen into argument, in part about a secret from her past which she had confided to him. 40. In addition to evidence of reporting, distress and complaint, part of the evidence came from the Deputy Head of the school. She saw the complainant two mornings later in her capacity as child protection officer and, as well as being given an account of events by her, was shown her mobile phone. On it there were 47 messages sent by the defendant since the incident. The teacher copied them out and they were before the jury as secondary evidence, having by the time of the trial been deleted from the telephone itself. The Crown said that, although the content was not always consistent, some of them amounted to confessions to, and apologies for, the rape, and to admissions that the row had been before the sex. The defendant agreed that he had sent them but he contended that they were simply apologies for being unsympathetic in the argument which he said had only arisen after consensual sexual intercourse. 41. The Crown served a hearsay notice in respect of these messages. When objection was taken to them being admitted, the judge ruled that they were not hearsay (i) because they emanated from the defendant himself and (ii) because they were not produced by the teacher as evidence of the truth of their contents. Alternatively, she ruled that if they were hearsay, she would admit them under section 114(1) (d) Criminal Justice Act 2003 . 42. These messages were not hearsay. The fact sought to be proved was that there had been one or more rapes. That was a highly relevant fact. The messages contained statements, or representations of that fact. By her second proposition we think that the Judge meant that the teacher who recorded the messages was speaking to the accuracy of her note, not to the truth of the contents of the messages themselves, but the messages were nevertheless relied upon by the Crown for the truth of what was stated in them. However, the defendant, when sending them, did not have it as one of his purposes to cause the complainant to believe that she had been raped. On the contrary, if that is what the messages meant, they both knew that. Quite apart from that, these messages amounted to statements by the defendant himself, contrary to interest, and were admissible even if hearsay on those grounds under section 114(1) (b) and section 118 which preserve the pre-existing rules as to confessions and like statements. Confessions have always been admissible as exceptions to the rule against hearsay on the grounds that they are not affected by the same risks of untruthfulness or unreliability as third party assertions of fact. 43. Miss Simpson contended in the alternative that the messages ought to have been excluded by applying section 76 of the Police and Criminal Evidence Act 1984 . However, there was no basis for so doing. It was not the defendant’s case that he had said what he did in consequence of something said or done by another that would render his confession unreliable. 44. Alternatively Miss Simpson contended that the messages ought to have been excluded pursuant to section 78 of the 1984 Act on the grounds that it was unfair to admit them. Some of the messages suggested that there may have been some reciprocal texts sent by the complainant to the defendant, but her telephone had had its memory cleared or overwritten by the time the matter was reported, rather late, to the police. Miss Simpson’s submission is that without seeing the other end of the conversation it was unfair to rely on what the defendant had said. We accept that there may have been some reciprocal messages, although the defendant’s evidence at trial was that the complainant had, at least at the outset, refused to answer his repeated messages but rather had ‘blanked’ him, which evidence was consistent with some of the messages. But the defendant was perfectly free, if it was his case that what he had said was open to misunderstanding because it was a response to something which the complainant had said to him, to give evidence to that effect. True, if he had said that, he would have been able to point to the disadvantage of not having any extant record of her calls to him. But he did not say this. The issue which he raised was that he had indeed been apologising, but not for rape; rather, he said, for being unsympathetic when the girl had confided in him and they had got into a row after (as he said) the sexual intercourse was over. That issue, what he meant when he sent the messages he did, was one which the jury was well able to determine and the defendant was able to explain why he said that he sent them even in the absence of her replies. The judge’s conclusion, that there was no unfairness such as to call for exclusion of this evidence, was one that we consider was open to her and was not wrong in principle. 45. For these reasons Lowe’s appeal against conviction must be dismissed. Twist: sentence 46. Twist was sentenced to five years imprisonment for the drugs offence. There is, and could be, no complaint about that. Whilst on bail for these offences, he was arrested driving a car containing a shortened shotgun and a deactivated pump action shotgun, together with cartridges. He had attempted to evade the police, no doubt because of what he was carrying, and had driven dangerously and at high speed in a residential area as a result. He was sentenced on the basis which he asserted, namely that he was looking after the guns for a drug dealer. He had also been found in possession, on the occasion of his first arrest, of a stolen mountain bicycle. He was 29 years of age, with previous convictions for dishonesty, affray and the supply of drugs. The judge passed a concurrent sentence in respect of the cycle, but for the dangerous driving and firearm offences he passed sentences which, although concurrent to one another, were made consecutive to the drugs and cycle sentences. The firearms (and driving) sentence totalled three years and nine months, passed after late pleas of guilty. Thus the total was eight years and nine months. His application for leave to appeal his sentence is confined to the argument based on totality. It is said that the overall sentence was too long. 47. In our view the later offences amply merited consecutive sentences. They were committed on bail. They were of a quite different kind. The minding of firearms for a drug dealer is very serious. If the starting point was five years, that was not too long, and it may in fact have been a little lower, given the lateness of the plea. The offences between them demonstrated wide-ranging criminal behaviour. The overall sentence was not manifestly excessive. Nor do we think that a driving disqualification of four years was, in the circumstances, excessive. We refuse leave to appeal against sentence. Tomlinson and Kelly: sentence 48. The judge passed sentences of nine years detention in a young offenders’ institution. The defendants were aged one side or another of 19. Both had relevant previous convictions. Whilst their gravity did not approach armed robbery, there were clear indications of aggressive and anti-social behaviour. Kelly’s convictions included assault, theft from the person and the possession of a knife and he was conditionally discharged when he committed the present offence. Tomlinson had convictions for theft, assault, disorder and (twice) for threatening a witness. He had served a sentence of detention and training. The judge rightly reminded himself that the Sentencing Guidelines Council’s robbery guidelines do not apply to violent robberies within the home. Mr Saunders submits that nevertheless the upper levels of robbery dealt with by the guidelines ought to be regarded as of some assistance, and that this offence fell in any event into the upper reaches of the 2 to 7 year range. We agree that this was not the worst kind of robbery committed in the home; there was absent the element of violent invasion since these defendants were already present as invitees. But the worst kind of such offences will call for sentences significantly into double figures. This offence was enormously aggravated by the use of a gun, and one for which the girls had previously been shown spent ammunition, suggesting plainly that it might easily be loaded. It was put to the head of one of the girls. Its use must have been extremely frightening. As the judge rightly said, if the defendants wished to portray themselves as young gangsters and gunmen, as they plainly did, and to behave as such, they fell also to be sentenced as such. This sentence was severe, but we do not think that it was manifestly excessive. 49. Accordingly we refuse leave to appeal against sentence. Lowe: sentence 50. Lowe was 17 at the time of sentence. The judge passed a sentence of four and a half years detention in a young offenders’ institution. There is no complaint about the length of the sentence, but the defendant’s age was overlooked. The available sentence was not detention in a young offender’s institution but detention for a grave crime pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 . We quash the sentence passed and replace it with one of four and a half years’ detention under section 91 . Any time in custody or on curfew will count towards that sentence as it counted before towards the sentence imposed below. We give leave to appeal and to that extent the appeal against sentence is allowed.

```yaml citation: '[2011] EWCA Crim 1143' date: '2011-05-12' judges: - LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEALCRIMINAL DIVISION - MR JUSTICE EDWARDS-STUART ```

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

Neutral Citation Number: [2008] EWCA Crim 2562 Case Nos: 2007/02401, 02769 and 03198 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WORCESTER CROWN COURT His Honour Judge McCreath (Case No T20067092) Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/11/2008 Before : LORD JUSTICE RICHARDS MR JUSTICE STADLEN and HIS HONOUR JUDGE GORDON - - - - - - - - - - - - - - - - - - - - - Between : The Queen Respondent - and - (1) Bhovinder Singh Sangha (2) Brian Meehan (3) Gerard Martin McAllister Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Rex Tedd QC and Simon Taylor (instructed by Richard Nelson Business Defence Solicitors) for the Appellants Peter Finnigan and Tom Baker (instructed by HM Revenue & Customs ) for the Crown Hearing date : 30 October 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Richards giving the judgment of the court: 1. Bhovinder Singh Sangha, Brian John Meehan and Gerard Martin McAllister appeal with the leave of the full court against confiscation orders made against them by HHJ McCreath in the Worcester Crown Court on 4 April 2007. The orders followed their conviction in June 2006, after a trial before the same judge and a jury, on counts of cheating the public revenue. The offences related to their participation in a VAT carousel fraud of a kind now familiar to the courts (see, for example, R v May [2008] UKHL 28 , [2008] 2 WLR 1131 ). The confiscation proceedings took place within the framework of Part VI of the Criminal Justice Act 1988 as amended. The judge found that each appellant had benefited from his relevant criminal conduct. The amount of benefit was determined as follows: Sangha, £28,608,317.56; Meehan and McAllister, £23,893,424.53 each. The confiscation orders made against them were in substantially lower sums, reflecting the lower amount of their realisable property: Sangha, £4,729,006.14; Meehan, £970,796.78; and McAllister, £648,101.70; in each case with provision as to time for payment and period of imprisonment to be served in default. 2. The core submission made on behalf of the appellants is that, given the way the matter was left to the jury at the trial, they were each convicted on a narrow factual basis and could not be said to have benefited at all from the criminal conduct of which they were convicted. The judge was therefore wrong to make a confiscation order against any of them. The carousel fraud: an overview of the prosecution case 3. The essence of the alleged fraud was that a trader in the United Kingdom (“the missing trader”) would register for VAT. The missing trader would purchase mobile phones from a “foreign supplier” located outside the United Kingdom but inside the European Union. This meant that no VAT was payable on the purchases. The missing trader would then sell the phones on to another company within the United Kingdom (“the first buffer”), invoicing an amount for VAT. The VAT so invoiced should have been collected by the missing trader and accounted for to the Commissioners of Customs and Excise (as they then were). What happened in practice, however, was that the first buffer paid the VAT, together with the purchase price for the phones, not to the missing trader but to the foreign supplier; and neither the missing trader nor the foreign supplier ever accounted for the VAT to the Commissioners. The evasion of VAT in this way was referred to as the “front end” of the fraud. 4. The first buffer would sell the phones on to another buffer company within the United Kingdom, at a small mark up and again invoicing VAT. The first buffer would account for the VAT received on those sales but would offset the VAT paid on its purchases from the missing trader, so that it was liable to pay only a small net amount of VAT to the Commissioners. The process might be repeated several times, with onward sales to a succession of buffer companies. 5. The last buffer would then sell the phones to a company outside the United Kingdom but again inside the European Union (sometimes to the same company as had sold them to the missing trader in the first place). Those export sales did not attract a charge to VAT. Since the last buffer had paid input VAT on its purchase of the phones from the previous buffer in the chain but had no output VAT to account for, it was able to reclaim the input VAT from the Commissioners. This was referred to as the “back end” of the fraud. 6. The consequence was that the Commissioners were making large repayments of VAT to the company at the back end without receiving the VAT due from the company at the front end. 7. We have referred for convenience to sales and purchases, rather than to “purported” sales and purchases, without prejudice to the question whether they were genuine trading transactions. The transactions within the United Kingdom were evidenced by purchase orders and invoices which enabled the prosecution to produce, for the trial of the appellants, a detailed “master schedule” showing the trade in each relevant batch of phones, from missing trader to first buffer and onwards to last buffer. The trade in question took place between February 2000 and November 2001, and involved over a thousand batches of phones. The companies and individuals concerned 8. The foreign suppliers involved in the fraud were Handycom SA, Willcom SA and Midafon, all of which were controlled by an individual called Emanuel Hening who was based in Luxembourg. 9. The missing traders were Eurocoin (UK) Ltd (“Eurocoin”), MSCoten Ltd (“MSCoten”) and Jactrade Developments Ltd (“Jactrade”), all of which were also controlled by Emanuel Hening. 10. The relevant United Kingdom buffer traders were controlled by the appellants and other defendants as follows: (1) Meehan and McAllister controlled Bridge GSM Products Ltd (“Bridge”), which occupied the position of first buffer for the first part of the period but then slipped down to second buffer; (2) Sangha controlled B-Tel-Com Ltd (“B-Tel”), which took over from Bridge the position of first buffer; (3) an individual by the name of David Burch, who was convicted in the same trial but is not an appellant, traded as “Keep Talking” and took over the position of first buffer late in the relevant period; (4) an individual by the name of Jaswant Raykanda, who was convicted in a later trial relating to the same fraud, controlled Waves International Ltd (“Waves”), which was the buffer company to which many of Bridge’s onward sales were made. 11. It has been common ground throughout that in each case the corporate veil is to be torn away and the acts of the companies are to be treated as the acts of the individuals controlling them. The case against the appellants at trial 12. The indictment for the trial of the appellants contained three counts. Count 1 related to Meehan and McAllister, count 2 to Sangha and count 3 to Burch. Save for the necessary changes of name and related details, the counts were in materially identical form. It therefore suffices to quote from count 1, which charged Meehan and McAllister with “cheating Her Majesty the Queen and the Public Revenue” and gave the following particulars: “Brian John Meehan and Gerard McAllister, between the 23rd day of February 2000 and the 19th day of June 2001, together with Emmanuel Hening and other persons cheated Her Majesty the Queen and the Public Revenue, namely the Commissioners of Customs and Excise, by dishonestly orchestrating artificial trade in mobile telephones by (i) Purchasing mobile telephones from Handycom SA, Willcom SA and Midafon companies in other EU Member State upon which there was no requirement to pay Value Added Tax at the point of entry into the United Kingdom; (ii) Using Eurocoin (UK) Ltd and MSCoten Ltd (the ‘missing traders’) to conduct transactions in respect of the said mobile telephones within the United Kingdom, pretending that the companies were to be operated as bona fide businesses under the VAT system; (iii) Causing and permitting the charging of amounts described as VAT by the ‘missing traders’ on invoices raised to Bridge GSM Products Ltd (‘the first buffer’) which was not paid to the said Commissioners of Customs and Excise; (iv) Causing and permitting HM Customs and Excise to make repayments of amounts claimed as Value Added Tax credit upon the sale and ultimate removal of the said mobile telephones from the United Kingdom; To the Commissioners’ loss and their gain.” 13. It was made plain by the prosecution in opening the case at trial that those particulars described the fraud in its totality, whereas the part alleged to have been played by the individual defendants was limited. 14. The extent of common ground at the trial appears from the helpful summary given in the judge’s ruling on confiscation: “2.1 As is common in cases of this kind, there was little dispute about the primary facts on which the prosecution case was based. A number of schedules were placed before the jury and were formally admitted as representing, subject to the possibility of occasional error in their compilation, the picture painted by the documentation generated by the relevant transactions. 2.2 That picture, so far as it directly concerned these defendants, amounted to this: 2.3 During the material times, Brian Meehan and Gerard McAllister were responsible for the running of Bridge, a company of which they were both directors and in whose profits they shared equally. It was accepted that Bridge had traded honestly in the mobile phone business until February 2000. Thereafter it turned its attention exclusively to trading in mobile phones, purchasing them from missing traders, paying the purchase price for them not to the UK based missing traders but to the European companies which had sent them into the UK via the missing trader and selling them to other UK traders. The prosecution case was that the UK missing traders and the European exporters were, in reality, the corporate entities of Emanuel Hening. 2.4 Whereas Bridge accounted to Customs and Excise for the VAT which it had recovered from the companies to which it sold the mobile phones, the missing traders did not account for the VAT which they had added to their invoices to Bridge. Instead the VAT was sent by Bridge into bank accounts in the names of the European companies. Accordingly, the direct beneficiary of the fraud was Hening. 2.5 The profits enjoyed by Bridge arose not from VAT evasion but from the mark-up which it added to the goods when it sold them on. The sums received by Bridge from their customers were applied in four ways: … (a) to pay for the goods, including the VAT charged on them; … (b) to make payments to Customs and Excise of the net VAT owed by them (and, no doubt, other taxation liabilities; … (c) to meet their business expenses; … (d) for the private use of the directors of the company. 2.6 The trading patterns of the companies controlled by the other defendants, B-Tel in the case of Mr Singh Sangha and Keep Talking in the case of Mr Burch, were, for all practical purposes, identical. 2.7 None of this was in issue in the case ….” 15. The judge went on to explain what was in issue in the case. For that purpose we should turn to the judge’s summing up, from which he had quoted earlier in his ruling. In the relevant part of the summing up the judge emphasised first that the defendants were not alleged to have had any involvement in the back end of the fraud; the jury had heard about the back end because the prosecution wanted to paint the full picture, out of a concern that if the jury did not see the fraud in its entirety they would not understand the significance of what was going on at the front end. He turned to the indictment, directing the jury as follows: “… It contains in each count particulars of the way in which the prosecution say the fraud was carried out in its entirety, but it is perfectly plain that there are aspects of the fraud in which it cannot be said that any of these defendants had any part to play at all. Let’s look at particulars (i) and (ii) …. What particulars (i) and (ii) relate to, as a cursory reading of them will show, is to the activities of those, including, or perhaps exclusively, Hening, who put in place the mechanism whereby the fraud was to be carried out, the setting up of the missing traders, the pretence that the missing traders were to be operated as bona fide UK traders and so on. That’s what particulars (i) and (ii) describe, none of it done by any of the defendants in this case. I skip over particular (iii) to come to particular (iv), and that … plainly describes what happened at what I have called the back end of the fraud, and whether or not this was a fraud which had as part of its object the ultimate exportation of the goods back to the EU and the repayment of the VAT to the UK exporter, there is no evidence at all connecting any of the defendants with that. So they did not do themselves, directly or indirectly, any of things in particulars (i), (ii) and (iv).” 16. The judge then focused on paragraph (iii) of the particulars, explaining first that none of the defendants was a primary party to the conduct alleged in that paragraph, before moving on to explain the concept of secondary participation and what was needed to prove a defendant’s involvement as a secondary party: “But you will say, and rightly say, that none of the defendants in this case caused and/or permitted VAT to be charged on the invoices raised by Eurocoin or MSCoten or Jactrade. Quite right. They didn’t. What they did do was to send the VAT which they had obtained on their sales within the UK not to the UK companies which had sold them the goods but to the EU companies, and that role in the fraud is not expressly set out, as you can see, in particular (iii), because the things done in particular (iii) were actually done by Hening or his associates, not by these defendants. They did not create the Eurocoin invoices or the MSCoten invoices or the Jactrade invoices. Hening did or his associates. So I need to give you a legal direction about how a person might be guilty of an offence even if he did not directly commit it …. The prosecution in this case must prove in respect of any defendant that he played a part in the fraud knowing that he was playing a role in a fraud against the Revenue and doing so dishonestly. In straightforward terms comes to this, does it not: is it proved against any defendant that when he sent the VAT to the bank accounts of the EU companies, he did so in the knowledge that he was thereby playing a part in the carrying out of a Revenue fraud and he did that dishonestly?” 17. In his confiscation ruling the judge described that as the sole issue for the jury and said that the verdicts of the jury determined the issue against each defendant. The confiscation orders: the judge’s reasons 18. In his confiscation ruling, the judge said that two issues had been argued before him: the first was the submission that the court was bound to find that there was no benefit; the second was a submission in the alternative that if there was a benefit it ought to be apportioned. The judge found that there was a benefit and that there was no basis on which he could properly apportion it. The only matter before us is his ruling on benefit. If he was right to find a benefit, there is no challenge to his ruling on apportionment. 19. In relation to benefit, the judge summarised the arguments for the defendants, which we will consider at greater length later in this judgment. He then set out the prosecution submission that “the underlying purpose of the trading in mobile phones in which all of these defendants were involved was to generate VAT which it was never intended would be paid to Customs and Excise” and that the only real issue for the determination of the jury was whether “it [was] proved in the case of any defendant that he was a knowing participant in a Revenue fraud”, so that “not only was it demonstrated that this trading was objectively fraudulent (a matter which was never in issue at trial), it was also proved that these defendants were knowing participants in it”. The judge said that he accepted the prosecution submissions. He went on, however, to express his reasons in his own way as follows: “4.13 The relevant offence in this case was a cheat on the Revenue, carried out ultimately by the … failure of the missing traders to account for the VAT charged by them on their sales. 4.14 It was common ground at trial that the trading which involved what may be called the Hening companies (the European exporters and the UK based missing traders) had only one purpose, namely the generation of VAT. 4.15 The means by which the VAT so generated was put beyond the reach of the UK authorities was by the acts of the defendants in this case, making payment for the goods purchased by them not to the UK missing traders from whom they had, on the face of the documents, purchased them but to the European companies which had purported to sell them to the UK missing traders. 4.16 The defendants obtained the funds whereby they were able to make these payments by selling the goods onward within the UK, thus obtaining from the UK second purchasers not only the increased price of the goods but also the VAT on them, offsetting against their VAT liability the sums which they had paid on the purchase of the goods. 4.17 These sums, obtained from the second UK purchasers, were plainly property obtained by the defendants in connection with the commission of the relevant offence. It was precisely these sums which were used, in substantial part, to make payment to the Hening companies for the price of the goods and, of fundamental importance, the VAT on them. 4.18 It was proved at trial that the defendants performed all of those acts in the knowledge that they were thereby participating in a fraud on the Revenue. 4.19 In those circumstances, it is, in my judgment, abundantly clear that these defendants, who are shown by the piercing of the corporate veil to have been the controllers of the relevant companies, obtained property in connection with the commission of the relevant offence, the cheat on the Revenue which amounted, in plain language, to the stealing of VAT which was rightfully due to the Revenue.” 20. In determining the amount of the benefit, the judge declined to accede to a submission by the prosecution that the whole of the proceeds of sale of the phones, including the VAT, should be taken into account. He said this (with his emphasis): “5.5 In my judgment, the property obtained by these defendants in connection with the commission of the offence of cheat were the sums obtained by them on their sales which were used to pay the VAT element of their purchases. It was the stealing of this money by Hening which constituted the cheat. Any additional sums obtained by these defendants cannot realistically be said to have been obtained in connection with the relevant offence.” The statutory provisions 21. Before considering the challenge to the judge’s ruling, it will be helpful to set out the relevant statutory provisions. As we have said, the case is governed by Part VI of the Criminal Justice Act 1988 as amended. The provisions of central relevance are to be found in s.71, as follows: “(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct. … (1D) In this Part of this Act ‘relevant criminal conduct’, in relation to a person convicted of an offence in any proceedings before a court, means … that offence taken together with any other offences of a relevant description which are either (a) offences of which he is convicted in the same proceedings, or (b) offences which the court will be taking into consideration in determining his sentence for the offence in question. … (4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained. (5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage. … (7A) The standard of proof required to determine any question arising under this Part of this Act as to (a) whether a person has benefited from any offence, or … (c) the amount to be recovered in his case, shall be that applicable in civil proceedings. ” 22. By s.102(5), references to property obtained, or to a pecuniary advantage derived, in connection with the commission of an offence “include a reference to property obtained or to a pecuniary advantage derived, both in that connection and in some other connection”. The case for the appellants on the appeal 23. The case for the appellants was presented to us by Mr Tedd QC, who represented Sangha alone in the court below but was able to act for all the appellants in this court because the arguments advanced apply in the same way to each of them. 24. The starting-point for Mr Tedd’s submissions was the limited way in which the case against the appellants was left to the jury at the trial and the correspondingly limited basis of their convictions. The only matters proved against them by the jury’s verdicts were that they had participated in that part of the fraud set out in paragraph (iii) of the particulars under each count, relating specifically to the evasion of VAT by the missing traders, and that they had participated only as secondary parties, in that they had acted dishonestly and in the knowledge that they were playing a part in the carrying out of a fraud on the public revenue when they paid the VAT on their purchases from the missing traders into the bank accounts of the foreign suppliers. That was the permissible factual basis for sentencing. It had not been proved or admitted that there was a wide-ranging fraudulent scheme going beyond evasion of VAT by the missing traders, or that any appellant knew of, or participated in, any such wide ranging scheme, or that any receipt by any appellant resulted from criminal conduct. 25. Mr Tedd submitted that the judge fell into error by going beyond the permissible factual basis for sentencing. In his reasoning as to the issue of benefit, the judge wrongly treated the appellants as if it had been proved against them upon their conviction that they were knowing participants in every aspect of a widespread fraudulent scheme, and as if their entire business was fraudulent. He also wrongly treated matters that were “never in issue at trial”, in the sense that they were not before the jury for determination, as though the appellants admitted them, which was not the case. 26. By virtue of s.71(1A) and (1D) of the 1988 Act , a defendant’s benefit is confined to benefit from “relevant criminal conduct”, which means for present purposes the offence of which he has been convicted. Those provisions accord both with first principles, namely that an offender should only be sentenced in respect of matters that have been alleged and proved against him before the appropriate forum, and with the line of sentencing authorities deriving from R v Canavan, Kidd and Shaw [1998] 1 WLR 604 , [1998] 1 Cr App R (S) 243, and including R v Eubank [2002] 1 Cr App R (S) 11, R v Murphy [2003] 1 Cr App R (S) 39 , and R v Graham and Whatley [2005] 1 Cr App R (S) 115 . Mr Tedd submitted that the judge’s approach, in proceeding on a factual basis going beyond that inherent in the verdicts, was contrary to that laid down in the authorities and was not open to him. 27. The correct analysis, submitted Mr Tedd, was that the evasion of VAT involved the obtaining of a pecuniary advantage, which by virtue of s.71(5) of the 1988 Act was to be treated as the obtaining of a sum equal to the value of the pecuniary advantage: see R v Dimsey and Allen [2000] 1 Cr App R (S) 497. But the pecuniary advantage was derived in this case by the missing traders, since they were the persons liable for the tax evaded (or by Hening, as the person who controlled them). The appellants obtained no such pecuniary advantage. 28. As to the judge’s reliance on s.71(4), Mr Tedd submitted that the authorities which concern evasion of tax draw a distinction between cases in which the monies on which the tax was payable derived from criminal activity and those where they did not; and that they demonstrate a resistance to arguments that in tax evasion cases the whole of the monies in respect of which tax has been evaded constitutes benefit to the offender. He cited R v Moran [2002] 1 WLR 253 , R v Foggon [2003] EWCA Crim 270 and R v Gill [2005] EWCA Crim 2697 . Accordingly, he submitted, monies received by the first buffer companies from the onward sale of phones could not be treated as property obtained “as a result of or in connection with” the commission of the offence, because those funds were not proved to have been derived from unlawful activity: that was not the basis of the jury’s verdicts and, given the way the case was left to the jury and the basis of their verdicts, it was not open to the judge to make a finding of his own on the matter. The case for the Crown on the appeal 29. For the Crown, Mr Finnigan supported the judge’s reasoning. We need not, however, summarise the detailed submissions he made, which to a large extent we have accepted and incorporated in the discussion that follows. Discussion 30. Where there has been a contested trial, the jury’s verdict and the factual basis upon which it was reached (to the extent that this can be determined from what happened at the trial) will of course have an important part to play in setting the parameters of the confiscation proceedings, and it will not be open to the judge to act inconsistently with the verdict or its factual basis when dealing with matters of confiscation. In our judgment, however, Mr Tedd’s submissions seek to place unwarranted limitations upon the confiscation proceedings by reference to the verdict and its factual basis. The questions that have to be determined in the confiscation proceedings (whether the defendant has benefited from the relevant criminal conduct, the amount of any such benefit, and the amount recoverable from him) are distinct from those falling for determination during the trial process itself. The standard of proof is different, namely that applicable in civil proceedings. There will normally be evidence additional to that led at the trial. The court responsible for making the relevant determinations is the judge, not the jury. Whilst the judge must act consistently with the jury’s verdict and its factual basis, it is open to him, in the light of the evidence as a whole, to make additional and more extensive findings of fact than those upon which the verdict was based. 31. Clear support for that view is to be found in R v Threapleton [2001] EWCA Crim 2892 , [2002] 2 Cr App R (S) 46, in which it was argued that the way in which the relevant count had been left to the jury at trial created alternative factual bases upon which the jury could convict, and that the judge was bound to proceed for the purposes of confiscation on the basis of the version of the facts most favourable to the defendant. The argument was advanced by reference to the principle in R v Efionayi (1995) 16 Cr App R (S) 380 that where a verdict is consistent with two views of the facts and it would have been possible to amend the indictment so as to obtain the jury’s views, the judge must adopt the more favourable view. This court, however, held that that principle has no application to confiscation proceedings. Stanley Burnton J, giving the judgment of the court, stated at para 28: “We reject the submission that in making a confiscation order the Judge is bound to approach the case on the version of the facts before the jury most favourable to the defendant. The case of R v Efionayi … was concerned with sentencing in the strict sense of the word, i.e. a sentence of imprisonment. The principle applied in the context of that case does not apply in the present context. Section 71 of the 1988 Act imposes a duty on the court to make the determinations specified in subsections (1A), (1B) and (6), i.e. whether the defendant has benefited from any relevant criminal conduct, the amount of that benefit and the amounts that might be realised at the time the order is made. In the case of the Crown Court, the court there means the trial judge, and does not include the jury. The same determinations fall to be made under section 72A, where the determinations are postponed. The fact that the determinations are separate from the trial process itself is emphasised by section 71 (7A) of the 1988 Act , which provides that the standard of proof required to determine any question arising under Part VI of the Act is that applicable in civil proceedings.” 32. That the judge can and should determine the statutory questions on the evidence before him, rather than being limited to the factual basis of the jury’s verdict, is supported by R v Olubitan [2004] EWCA Crim 2940 , [2004] 2 Cr App R (S) 14. The appellant in R v Olubitan had been convicted of conspiracy to defraud, in circumstances where the jury were to be taken to have found that he knowingly joined the conspiracy at a very late stage, on the day of his arrest, when a dummy consignment in which he had been involved was intercepted. The court quashed the confiscation order against him on the basis that he had obtained no benefit. It did so, however, as para 14 of the judgment makes clear, not because of the limited basis of the jury’s verdict, but because there was no evidence on which the judge could properly be satisfied on a balance of probabilities that the appellant had benefited from his relevant criminal conduct. The decision is therefore wholly consistent with the view we have expressed above. 33. Another case illustrating the entitlement of the judge to make his own factual findings on the evidence is R v Green [2008] UKHL 30 , [2008] 2 WLR 1154 , in which Lord Bingham, giving the considered opinion of the House of Lords, quoted with approval (at para 15) the following passage from the judgment of David Clarke J in the Court of Appeal: “Whether the proceeds of sale received by [the appellant’s associates] in the present case were initially received on their own personal behalf or on behalf of the conspirators as a whole was a matter for the judge to decide on the evidence before him. In fact, there was evidence on which he could find that the appellant was the ringleader and controller of the conspiracy and in those circumstances he was entitled to infer that the others were acting in accordance with his instructions, receiving proceeds of sale on behalf of the conspirators as a whole before retaining for themselves such amounts as had been agreed with the appellant ….” 34. Nor do we accept that the principle in R v Canavan (above), upon which Mr Tedd placed much reliance, has the effect of limiting the judge to the jury’s verdict and its factual basis. In R v Canavan it was held that, where a defendant is indicted and convicted on a specimen or sample count which is said to be representative of other criminal conduct of the same kind on other occasions not the subject of any other count in the indictment, the court may not take account of such other conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration when passing sentence. Lord Bingham of Cornhill CJ expressed the relevant principle as follows (at [1998] 1 WLR p.607B-C): “A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence …. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.” 35. Even in the normal sentencing context, the principle in R v Canavan has important limits to it. Thus in R v. Considine and Davis [2007] EWCA Crim 1166 , [2007] 3 All ER 621 , the court had to consider the process of assessing dangerousness under s.229 of the Criminal Justice Act 2003 . In the earlier case of R v Farrar [2006] EWCA Crim 3261 it had been held to be contrary to the principle in R v Canavan for the sentencing judge, for the purpose of determining dangerousness, to hold what was in effect a Newton hearing in order to determine whether the defendant had been involved in a similar previous incident which he denied and which had not been the subject of a charge. Sir Igor Judge P, giving the judgment of the court in R v Considine and Davis , dealt with the matter in this way (at paras 34-36): “We entertain reservations whether the full ambit of the principle in R v Canavan , which was concerned with the process of establishing guilt, applies to the assessment of dangerousness for the purposes of s.229. What R v Farrar , consistently with R v Canavan , prohibits is the introduction of a hybrid arrangement into the criminal justice system, in effect the possibility of conviction, or effective conviction, of a serious criminal offence after trial by judge alone in the course of a sentencing decision. The court was concerned that s.229 should not be construed so as to allow the defendant to be deprived of his right to trial by jury, or in some way or other be fixed with the consequences of guilt of a criminal offence without due process. A Newton hearing is not an acceptable form of trial for a criminal offence. It is after all a precondition to the Newton hearing that guilt of the offence is admitted by the defendant. It is therefore inappropriate to embark on a Newton hearing to decide whether or not the defendant has committed a discrete, but similar offence to those already before the court, solely for the purpose of making the assessment of dangerousness. … In our judgment what R v Farrar clearly did not decide is that, absent a conviction, the court making the s.229 decision is precluded from considering evidence of previous misconduct which would amount to a criminal offence. Arguments advanced on the basis that it did so decide are ill-founded. The contrary is true, and in R v Farrar the end result was that material directly related to the earlier incident did in fact contribute to the conclusion that Farrar himself should properly be assessed as dangerous. For this purpose no conviction is necessary ….” 36. In the context of confiscation proceedings there are even stronger reasons for entertaining reservations whether the full ambit of the principle in R v Canavan applies. Indeed, where the “criminal lifestyle” provisions of the Proceeds of Crime Act 2002 are engaged, the statute goes so far as to require the court to decide whether the defendant has benefited from his “general criminal conduct” (namely all his criminal conduct, not limited to the offence or offences of which he has been convicted) and even to make assumptions to the effect that his property was obtained as a result of his general criminal conduct, unless the assumptions are shown to be incorrect or there would be a serious risk of injustice if they were made. Mr Tedd submitted that in that specific situation, which has no counterpart in Part VI of the 1988 Act , the principle in R v Canavan is displaced by statute whereas in the present situation it applies in the normal way. It seems to us, however, that the criminal lifestyle provisions of the 2002 Act illustrate, albeit in an extreme way, how different are confiscation proceedings from the situation at which the principle in R v Canavan is directed. 37. In any event, even on the assumption that the principle in R v Canavan does apply to confiscation proceedings, what was said in R v Considine and Davis about the scope of the principle has equal force in this context. The court is not limited to the facts on the basis of which the jury reached their verdict. If other misconduct is relevant to the statutory questions that the court has to determine, the principle does not preclude the court from considering evidence of that other misconduct even where it amounts to a criminal offence. 38. For those various reasons we reject Mr Tedd’s submissions of principle that it was not open to the judge in the present case to go beyond the confines of the factual basis of the jury’s verdict when determining whether the appellants had benefited from their relevant criminal conduct. Provided that he acted consistently with the verdict and its factual basis, the judge was entitled to take into account all the evidence he had heard and to make his own relevant findings of fact when determining that question. 39. We turn to consider, in the light of the above, whether there was any error in the judge’s actual reasoning. 40. The judge had to determine under s.71(1A) whether the appellants had benefited from their “relevant criminal conduct” within the meaning of s.71(1D). The only relevant criminal conduct was the offence of which they had each been convicted, namely the offence of cheating the public revenue. It is clear that the judge proceeded on that basis, taking the offence of which the appellants had been convicted as his starting-point. 41. In determining whether the appellants had benefited from that offence, the judge focused on s.71(4) and the obtaining of property, rather than on s.71(5) and the obtaining of a pecuniary advantage. In our judgment, he was right to do so. Mr Tedd was no doubt correct in his submission that the evasion of VAT would generally be held to involve the obtaining of a pecuniary advantage, but that on the evidence in this case any pecuniary advantage resulting from the evasion of VAT by the missing traders at the front end of the conspiracy was obtained by Hening and not by the appellants, so that there was no basis for a finding against the appellants under s.71(5). It remained open to the judge, however, to make a finding against them under s.71(4) if the facts supported it. 42. We have already set out, at para 19 above, the judge’s reasoning under s.71(4). In essence, it proceeded as follow: (i) payments for goods sold by the missing traders to the appellants were made by the appellants not to the missing traders but to the foreign suppliers, thereby putting the VAT charged on those sales beyond the reach of the Commissioners; (ii) the appellants funded those payments by the sums obtained from the onward sale of the goods to purchasers within the United Kingdom; (iii) all the acts in (i) and (ii) were performed by the appellants in the knowledge that they were thereby participating in a fraud on the Revenue; and (iv) in those circumstances, in so far as the sums obtained from the onward sale of the goods were used to pay the VAT element of the appellants’ purchases, those sums were property obtained “in connection with” the commission of the offence of which the appellants had been convicted. 43. We see no difficulty with the factual basis of that reasoning. As to (i) and the related finding in (iii) that the relevant acts were done by way of knowing participation in the fraud, that was the very issue resolved against the appellants by the jury’s verdicts. As to (ii) and the related finding in (iii) that the relevant acts were done by way of knowing participation in the fraud, we read these as additional findings by the judge based on the evidence at the trial, rather than as reflecting an erroneous belief on his part that they followed necessarily from the jury’s verdicts: Mr Tedd conceded that to read them as additional findings was one sensible construction of the judge’s words. In our view, in line with the approach discussed above, the judge was perfectly entitled to make such findings. They were consistent with the factual basis of the jury’s verdicts and they were supported by the evidence. Mr Finnigan, for the Crown, drew our attention to specific items of evidence supporting them; but in any event Mr Tedd accepted that there was material to justify the findings if, contrary to his submission, the judge was entitled to go beyond the factual basis of the jury’s verdicts. 44. That leaves the question whether it was open to the judge to conclude in those circumstances that the sums obtained from the onward sales of the goods were obtained “in connection with” the commission of the relevant offence. The expression “in connection with” is broad in its potential scope, a point which is underlined by the provision in s.102(5) that references to property obtained in connection with the commission of an offence include a reference to property obtained “both in that connection and in some other connection”. We need say no more about the statutory expression than that. In R v May (above), at para 46, Lord Bingham, giving the considered opinion of the House of Lords, stressed that “in any given case the statutory questions must be answered by applying the statutory language, shorn of judicial glosses and paraphrases, to the facts of that case”. The judge in the present case approached the matter in just that way: he applied the statutory language to the facts without attempting any gloss or paraphrase. His conclusion did not involve an unduly strained application of the statutory language. It was a conclusion properly open to him. 45. The appellants are not assisted by cases such as R v Gill (above), where a distinction is drawn between the proceeds of genuine trading activity and the failure to account for tax payable on the profits from that trading activity, and it is said that the proceeds of the genuine trading activity cannot be regarded as property obtained as a result of or in connection with the tax offence. What distinguishes the present case very clearly from that situation is the judge’s finding that, in making the onward sales and obtaining the proceeds of sale, the appellants acted in the knowledge that they were thereby participating in a fraud on the Revenue. The trading in question was plainly not legitimate trading of the kind envisaged in R v Gill . 46. The judge might well have gone further in his findings. There were strong grounds for viewing the entire chain of transactions as artificial trade (as indeed the opening words of the particulars in the indictment alleged), and a substantial proportion of the onwards sales made by the appellants were to companies controlled by persons who had themselves been convicted, after a separate trial before the same judge, of the same offence. But the judge did not refer to those additional matters and there is no need for us to rely on them. It suffices for present purposes that the judge found that the appellants had acted, in relation to the onward sales and the obtaining of the proceeds of sale, in the knowledge that they were participating in a fraud. That is a sufficient reason why the reasoning in cases such as R v Gill does not bite on the present situation. 47. Mr Tedd suggested that the judge’s approach should logically have led to a finding that the entirety of the sums obtained from the onward sales, and not just that part used for the payment of VAT on the purchases from the missing traders, were property obtained in connection with the commission of the relevant offence: he submitted that the middle ground taken by the judge was not available. It seems to us, however, that the judge had a rational basis for drawing the line where he did. We need not decide whether it would have been open to him to go further and treat the entirety of the sums obtained from the onward sales as property obtained in connection with the commission of the relevant offence. Conclusion 48. For the reasons given, we hold that the judge was entitled to find that each of the appellants had benefited from his relevant criminal conduct. Since that is the only issue before us, it follows that the appeals against the confiscation orders must be dismissed.

```yaml citation: '[2008] EWCA Crim 2562' date: '2008-11-18' judges: - LORD JUSTICE RICHARDS - HIS HONOUR JUDGE GORDON ```

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

Neutral Citation Number: [2011] EWCA Crim 1319 Case No: 201101606 A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 12 May 2011 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE TREACY - - - - - - - - - - - - - - - - RECORDER OF BIRMINGHAM - HIS HONOUR JUDGE WILLIAM DAVIS 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 017 OF 2011 (MICHAEL MANDALE) - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - Ms E Schutzer-Weissmann appeared on behalf of the Attorney General Ms A Whalley appeared on behalf of the Offender - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE PITCHFORD: The offender is 43 years of age. On 25 February 2011 at Carlisle Crown Court for an offence of possessing 80.68 grams of the class A drug heroin at 37 per cent purity with intent to supply, he received a sentence of 12 months' imprisonment, suspended for 24 months, with a 12-month supervision period and a requirement that he undertake 240 hours of unpaid work. Her Majesty's Attorney General seeks leave to refer this sentence to the full court as unduly lenient, and we grant leave. 2. On 17 June 2010 the offender was stopped while driving a Peugeot motor car northbound on the M6 motorway. He was accompanied by a female passenger, a young woman with whom he had been in a relationship for several years, but from whom he had been separated for a short time before he returned to England from Spain. 3. Inside the driver's door pocket of the vehicle was a plastic bag containing heroin in two clear plastic wraps, weighing respectively 27.4 grams and 53.28 grams. The evidence for the prosecution was that the value of the drug on the street was just over £8,000. 4. The offender made no comment in interview, but he was later to submit a basis of plea, which was accepted. He enlarged upon his personal circumstances in interview with the author of the pre-sentence report. 5. The offender admitted that he was a courier for the drugs, delivering them to Penrith from London. He was to be rewarded with five grams of heroin. At the prosecution's valuation, the benefit he was receiving was £500. 6. The offender himself had acquired a dependency upon heroin following the collapse of his food business in Spain, the breakdown of the relationship to which we have referred and an accident causing him painful symptoms which required while he was on remand reconstructive surgery to his Achilles tendon. He told the author of the pre-sentence report that he had returned from Spain with £4,000 in cash, which had been dissipated to a large extent by virtue of his drug taking. 7. On 29 November 2010 the offender pleaded guilty to the charge. When the sentence hearing was listed for 18 January 2011, the matter was considered by HHJ Batty QC. While indicating that in his view a custodial sentence would be appropriate, he was prepared to adjourn sentence for further enquiries to be made. He reserved the matter to himself. However, on 25 February 2011, the date of sentence, mitigation was heard and sentence passed by HHJ Forrester QC. 8. The offender had no recent convictions. He was effectively sentenced as a man of good character. The time which would have counted towards a custodial sentence, it is agreed between counsel, was 107 days. The learned judge, in the course of her sentencing remarks, referred to a period of 145 days. What she was intending to convey was that she would wish to give credit for the fact that there was a period of time, we think 38 days, when the offender, while not on an electronic tag, was nevertheless the subject of a curfew for a period of 12 hours. That period did not, therefore, count under either section 240 or section 240 A of the Criminal Justice Act 2003 , and if the judge was going to give credit for that time, which of course she had a discretion to do under her general sentencing powers, the way that she would have to achieve it was by reducing the sentence, rather than by adding the days to be counted. 9. By the time of sentence, the offender had weaned himself from heroin and heroin substitutes. He was assessed by the author of the pre-sentence report as a low risk for re-offending. His parents had offered him a job in one of their two local businesses in the Penrith area. 10. Mr Rogerson, who appeared for the prosecution, interrupted during the course of Judge Forrester's remarks to Ms Whalley, who represented the offender at the sentencing hearing, to point out that a non-custodial sentence would be outwith the guidance of the Court of Appeal in Aramah and successive cases. Notwithstanding the judge's apparent anxiety as to the propriety of imposing a non-custodial sentence, she did so. 11. In her sentencing remarks, she explained her reasons as follows: "As to the actual sentence to be imposed ... one looks at the amount of drugs involved but also one looks at the circumstances of the offender. You told the court through your basis of plea and the probation officer that this was the first and only time you had acted as a drugs' courier. You did so for financial reasons as your money had run out and you were addicted at that time to heroin and your payment for couriering the drugs was a relatively small amount of heroin for your own use. I accept that and there is no information to the contrary. What is also clear is that at that time in your life you were going through a difficult period which is all set out in the pre-sentence report, but having lived and supported yourself successfully in Spain, you had returned to this country, you had the injury to your leg which turned out to be a lot more serious than first thought and for various other matters you had got into a heroin addiction. It is always very sad to see somebody like yourself before the court for any offence, but particularly for this type of offence when it is clear that you have had a lot of opportunities in your life and fortunately many of them still exist. I have references from your friends and family, you have a supportive family who are here in court with you today and it is very much to your credit that you have managed to overcome your addiction and in fact now no longer need treatment for it. It is perhaps an unusual situation in that you are actually on bail to appear here at court. That bail was granted so that you could obtain treatment, the necessary treatment, for your leg injury and, as I have been told, that is not quite complete yet although I am told that within the next four weeks or so you should be able to walk again satisfactorily. So, in the light of all these circumstances, I am dealing with you as a person effectively with no previous convictions, as you have nothing relevant and because of the fact that it was a one-off occasion and the circumstances you were in at the time, my starting point would be a period of three years' imprisonment. I would reduce that by one third because you pleaded guilty at the first opportunity. That takes it to two years' imprisonment. If I were to impose that upon you today you would only serve 75 days, a period of ten weeks. That is because you have a total of 145 days to count towards the service of the sentence. I am satisfied that in all it would be far better for the community for you to remain in the community now that you have overcome your drug addiction and to become a useful member of that community. So what I intend to do with you is impose the most serious suspended sentence that I can and I will make it clear to you that if you breach that order you will come back to court and you will go to prison." 12. Those who are involved in the supply of class A drugs will derive, the court has emphasised on many occasions in the past, limited mitigation from their personal circumstances. The reason for this approach is the terrible damage which their activities occasion to others. This was a planned journey with about 27 grams of heroin at 100 per cent purity. The offender was not a low level dealer simply feeding his own addiction. He was close to a distributor or wholesaler, who trusted him to make the journey between London and Penrith, with product whose street value ran into several thousands of pounds. 13. It is submitted on behalf of the Attorney General that the appropriate starting point for an offence such as this was seven to seven and a half years. Asked for the justification for such a starting point, it was submitted that those who are involved in conveying drugs are more seriously involved in the activity of distribution of drugs than are the dealers themselves on the street. 14. This is a submission with which we are unfamiliar and which we do not accept. The culpability of the individual will depend upon all the circumstances. We would trace the evolution of sentencing for drugs offences, in short, as follows. In Aramah [1982] 4 Cr App R (S) 407 , the Court of Appeal set guidelines for sentencing of those who were convicted of importation, supply and possession with intent to supply class A controlled drugs. At a time when the maximum sentence was 14 years' imprisonment, the court observed that seldom would a sentence of less than three years' custody be appropriate for those convicted of the supply or possession with intent to supply class A controlled drugs. 15. By section 1 of the Controlled Drugs (Penalties) Act 1985 , the maximum sentence was increased from 14 years to life imprisonment. In Satvir Singh [1988] 10 Cr App R (S) 402 , the court reconsidered the Aramah guidance in respect of supply offences in the light of the increase of the maximum sentence. Lord Lane CJ, giving the judgment of the court, said that the starting point for this type of offence should be five years at least, both for supplying and for possession with intent to supply. Lord Lane continued: "It should perhaps be noted in this aspect of the matter that the assistance which can be derived by the sentencing court from the amount of the drug actually found in the possession of the accused is limited. It is the scale and nature of the dealing which are material factors." 16. In fact, the court has since been concerned to consider all aspects of the offending in the assessment of the seriousness of the offence: three factors in particular, (1) the quantity and purity of the drug being dealt, stored or conveyed; (2) the position occupied by the offender in the hierarchy of distribution between importation at one end and supply on the street at the other; and (3) the duration of involvement and the persistence with which the offender committed drugs offences. 17. Carrying, warehousing and minding class A drugs with intent to supply remains, save in the most exceptional circumstances, an offence for which an immediate sentence of custody will be appropriate. In the experience of this court, the starting point will usually be in the range of five to seven years, depending upon factors (1) and (3) identified above. With quantities around or above one kilogram of class A drug at 100 per cent purity, the starting point is likely to be higher. 18. The Attorney General relies upon the decision of this court in Attorney General's Reference (No 146 of 2002) (Robert Stewart) [2003] EWCA Crim 1010 ; [2003] 2 Cr App R (S) 107 at paragraph 14. This court viewed a starting point of seven to seven and a half years as appropriate for a courier knowingly carrying 363 grams of diamorphine at 100 per cent purity. For more recent examples of sentences imposed upon those who mind or convey drugs, we refer to the appeals of Jeline Williams [2010] EWCA Crim 1726 and Allan [2010] EWCA Crim 726 . 19. As we have said, the amount being carried by this offender was 27 grams at 100 per cent purity. The quantity was therefore modest by comparison with that considered by the court in Attorney General's Reference (No 146 of 2002) . There was no evidence that this was other than a single and isolated offence. The value of the offender's reward was, however, significant - up to £500. The distance travelled was substantial. The offender must have been close to the distributor and was clearly trusted with a valuable consignment. 20. In our view, the starting point selected by the judge, taking into account those features of mitigation which she identified, was only just within the appropriate range, which would have been, in our view, three to four years. It was agreed that the offender should receive full credit for his plea of guilty, the effect of which was to produce a sentence of two years' imprisonment. The issue for the judge was whether it was appropriate to return the offender to custody. 21. In our view, it clearly was appropriate to return him to custody. There is an important public interest in ensuring consistency of sentencing, particularly in a field as sensitive as class A drug distribution. It is important that those who lend themselves to the distribution of class A drugs entertain no doubt that upon conviction they will be going to prison, and that the public has confidence that that is the case. 22. In assessing the period of time which the offender would actually serve in custody should she impose a sentence of two years' imprisonment, the judge, as we have observed, found that he would be detained for a period of only ten weeks. We have asked counsel who represented the offender at the sentence hearing whether there was any indication as to how the judge reached that conclusion, and there was none. It is apparent that the calculation was erroneous. 23. In our view, two years' imprisonment immediately imposed was the least sentence which should have been considered. We now have to decide whether we should exercise our discretion to quash the present sentence and impose an immediate sentence of imprisonment instead. 24. A further two months have elapsed. We have a supplementary report from the Probation Service. We are informed that the offender has now completed about 100 hours of the unpaid work programme. Unsurprisingly perhaps, given his antecedents, he is making good progress under the supervision order and has not relapsed his determination to avoid class A drugs. We have received confirmation that the relationship with the young woman who accompanied him in the car when the offence was committed continues, and that he supports her in her suffering from anxiety and depressive symptoms, together with epilepsy. The offender's mother has written to the court expressing her view that her son has continued his rehabilitation with humility and hard work. 25. It is the view of this court that it has no alternative but to reinforce the public interest in imposing immediate sentences of custody upon those who commit such offences as this offender did. We shall therefore quash the orders made by the judge in the court below and substitute a sentence of 20 months' imprisonment. We reach that sentence by adopting the judge's starting point and giving full credit for the plea of guilty. We deduct three months' imprisonment from that figure to take account of unpaid work, supervision and the fact that this man is facing sentence for the second time today. We also deduct a period of about 30 days for the fact that the offender was kept upon curfew for 12 hours a day, although not being tagged. This will mean that his date of release will be calculated by the prison on the basis that he is entitled to 107 days. 26. The sentence will therefore be 20 months' imprisonment, and 107 days will count towards that sentence. The offender will surrender to Penrith Police Station by 4pm this afternoon. The sentence we have imposed will take effect from the time the offender surrenders to custody.

```yaml citation: '[2011] EWCA Crim 1319' date: '2011-05-12' judges: - LORD JUSTICE PITCHFORD - 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} ======

Case No: 201203251 B1, 201301484 B1, 201203253 B1, 201203252 B1 Neutral Citation Number: [2014] EWCA Crim 1243 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM 26 April 2012 at the Central Criminal Court before His Honour Judge Wide QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/06/2014 Before : LORD JUSTICE PITCHFORD MRS JUSTICE NICOLA DAVIES DBE and THE RECORDER OF CARDIFF (Her Honour Judge Eleri Rees) - - - - - - - - - - - - - - - - - - - - - Between : Sean Ferdinand Lij McSween Mohammed Hashi Sean Hutton 1 st Appellant 2 nd Appellant 3 rd Appellant 4 th Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MFR Holland QC (instructed by Needham & Partners - Solicitors ) for the 1 st Appellant H C Grunwald QC (instructed by CLP - Solicitors ) for the 2 nd Appellant M Birnbaum QC (instructed by Mackesys - Solicitors ) for the 3 rd Appellant B Richmond QC (instructed by Sonn MacMillan Walker - Solicitors ) for the 4 th Appellant N P Moore (instructed by CPS - Crime Appeals Unit ) for the Respondent Hearing date: 22 May 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford: Introduction 1. On 26 April 2012, following a trial at the Central Criminal Court before His Honour Judge Wide QC, each of the appellants was convicted by the jury of count 1, charging them with the murder on 20 April 2011 of Milad Golmakani, and count 2, on the same occasion, the attempted murder of Zain Salah Uddin. On the same day the appellants Sean Hutton, Sean Ferdinand and Mohammed Hashi were sentenced to detention for life for murder with a minimum term of 22 years. Concurrent terms of 17 years detention were imposed for the offence of attempted murder. For the offence of murder Lij McSween was detained at Her Majesty’s pleasure with a minimum term of 19 years; for the offence of attempted murder he was ordered to serve 14 years detention in a Young Offender Institution. Although making no practical difference to the period to be served, the latter sentence should have been announced as a period of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. We shall order the appropriate correction. 2. Lij McSween was born on 15 August 1994. He lived at Maitland Park Road, London NW3. He was aged 16 years 8 months at the time of the alleged offences (“the relevant time”). He was represented at trial and in the appeal by Mr Grunwald QC. Sean Hutton was born on 5 May 1992. He lived at Malden Road, London NW5. He was aged 18 years 11 months at the relevant time. At trial and in the appeal he was represented by Mr Richmond QC. Sean Ferdinand was born on 30 June 1992. He lived at Gilbey’s Yard, London NW1. He was aged 18 years 10 months at the relevant time. He was represented at trial and in the appeal by Mr Holland QC. Mohammed Hashi was born on 21 January 1993. He lived at Agricola Place, Enfield. He was aged 18 years 3 months at the relevant time. He was represented at trial and in the appeal by Mr Birnbaum QC. The grounds of appeal 3. The appellants Lij McSween, Sean Hutton and Sean Ferdinand have leave from the single judge to pursue grounds 1 and 2, each of which concerns the decision of the trial judge to admit in evidence the hearsay statements of Bajrmshame Hashani. It is contended that the judge had insufficient evidence on which to make a finding that Ms Hashani was “unfit to be a witness because of her bodily or mental condition” for the purpose of section 16(2)(b) of the Criminal Evidence Act 2003; secondly, that the effect of the judge’s decision was unfairly to permit the prosecution to undermine the credibility of its own witness, whose statement of evidence in the form provided by section 9 of the Criminal Justice Act 1967 had already been read to the jury by agreement. 4. The appellants McSween and Ferdinand advance further grounds of appeal 3 and 4 that have been referred to the full court by the single judge. It is contended that the prosecution, without the leave of the trial judge, elicited from Sean Hutton during cross-examination that the night before the murder of Milad Golmakani he had been in the Pimlico area of London dealing in class A drugs. It is submitted that in so doing the prosecution adduced bad character evidence whose effect was to undermine an understanding between the prosecution and defence that evidence of motive would not be introduced, to the unfair prejudice of the cases of McSween and Ferdinand. 5. The appellant Ferdinand seeks to renew ground 5, namely that the judge in his summing up misdirected the jury as to fact when summarizing the evidence in his case and failed when so invited to make a full or adequate correction. 6. The appellants Ferdinand and McSween seek leave to rely upon a new ground of appeal (that we shall call ground 6), namely that the fresh evidence of an eye witness, Milos Charlesworth, should be admitted in the appeal pursuant to section 23 of the Criminal Appeal Act 1968. Should the evidence be admitted it would cast doubt upon the identification of the appellants’ group as that which attacked and wounded Milad Golmakani and Zain Sala Uddin. It therefore affects the position of all four appellants. 7. The appellant Hashi challenges his conviction on the ground (which we shall call ground 7) that the expert evidence of a consultant podiatric surgeon, Mr Barry Francis, was flawed so as to render unsafe the jury’s conclusion that Hashi was present and participating in the attack on the victims. 8. Finally, Lij McSween’s application for leave to appeal against the minimum term of 19 years imposed in respect of count 1 has been referred to the full court. The cases at trial 9. At 4.30 pm on 20 April 2011 Milad Golmakani, Zain Salah Uddin and several other youths of various ages had congregated in and in the vicinity of the fenced basketball and games court alongside Sandbourne House, Abbey Road Estate, Kilburn in north London. At the same time a taxi summoned by the appellant Hutton arrived and parked at Boundary Road, on the adjoining Rowley Estate. At 4.33 pm CCTV cameras captured four young men, including Hutton, walking from Boundary Road towards the basketball court. Their route took them alongside Stevenson House to Langtry Walk. All four were wearing dark jackets with hoods. It was the prosecution case that the four men captured on CCTV were the appellants. During their walk along Langtry Walk Hutton left the group and returned to the taxi to instruct the driver, Mr Gurhey, to drive the car closer to the basketball court. Hutton’s purpose was, the prosecution contended, to facilitate the escape of the group from the scene of an attack that he knew was imminent. Between 4.36 pm and 4.39 pm CCTV captured the remaining three members of the group walking along Langtry Walk, across Abbey Road and, thence, into Abbey Road Estate. They emerged into the area outside the basketball court through a passageway under Sandbourne House. Meanwhile Mr Gurhey and Hutton travelled in the taxi to a position on Abbey Road at the entrance to the estate. Hutton left the taxi and, at 4.42 pm, followed his three companions into the estate. 10. The prosecution was unable to assign specific roles to any one of the appellants save for Hutton who had ordered the taxi and made preparations for the group’s escape. It relied upon the inference that anyone proved to have been a member of the hooded group entering Abbey Road Estate at 4.40 pm did so for the purpose of carrying out, with knives, a murderous attack on the deceased and others. Witnesses described a group of men wearing jackets with their hoods up entering Abbey Road from the direction of Sandbourne House. They chased Milad Golmakani and Zain Salah Uddin out of the basketball court and attacked them with knives. Mr Golmakani suffered fatal wounds. It is probable that two knives at least were used to inflict Mr Golmakani’s wounds. Mr Salah Uddin, while stabbed from behind in the area of his right shoulder, was able to run from the estate and was captured on CCTV doing so at 4.43 pm. At the same time four men were seen on CCTV returning to the taxi as Mr Gurhey was making a turn. At Hutton’s instruction the taxi took the group to the vicinity of St Mary’s Church in Primrose Hill. At the youth centre a barbeque commenced at 4.00 pm. 11. Hutton and McSween admitted that they were members of the group captured on CCTV entering and leaving the Abbey Road Estate. Their case was that they had visited the Estate looking for a man called ‘Smokey’ from whom to make a purchase of cannabis. They claimed that they were accompanied by two youths known only to them as ‘Toothpick’ and ‘Iceman’, and not by Ferdinand and Hashi. McSween gave evidence that he was the first to enter the Estate. As he approached the basketball court a group of five or six males approached from his left and attacked him. He was punched to the face. Someone aimed a blow with a knife. McSween claimed that he put up his hand in a defensive manner and the knife made contact causing a cut that bled profusely. He immediately ran back to the taxi in the direction from which he had entered the estate. As he ran McSween left a trail of blood spots subsequently analysed to establish his identity. Ferdinand’s fingerprints were lifted from the rear passenger window of the taxi. His defence at trial was alibi. He said he had been attending the barbeque at St Mary’s Church youth centre. Ferdinand said that the discovery of his fingerprints was mere coincidence; he had used the same taxi firm, Fleet Cars, on many previous occasions and it was not possible to date a fingerprint. The prosecution also relied on cell site evidence to establish the movement of Ferdinand’s mobile phone towards and away from the scene of the attack at the relevant times. Ferdinand and Hutton both claimed in evidence that this too was coincidence. At Hutton’s request Ferdinand had lent his phone to Hutton at about 1.30 pm and Hutton returned it at about 5 pm at St Mary’s Church youth centre. The cell site evidence established only Hutton’s and not Ferdinand’s movements. Hashi advanced no positive case at trial and did not give evidence. Evidence of eyewitnesses 12. Witnesses described a group of youngsters of different ages congregating in and around the basketball court; some were playing football, others were standing or sitting around. Zain Salah Uddin said that he was playing basketball. He saw a couple or a few people come towards “the pitch” from the passageway through Sandbourne House. They had hoods up and the strings of their hoods were pulled so that he could not see their faces. He saw Milad (street name ‘Dirty’) and ‘Antics’ start to run, so he did too. Zain slipped and as he was getting up he was stabbed. He could hear Milad screaming. He looked across and saw “hoodies” standing over him. Zain ran to Boundary Road where he was given assistance. 13. Connor McGovern noticed Dirty and Antics leaving the pitch as people were coming from the direction of Sandbourne House. Connor ran with Yassir Bashira in the same direction as Zain towards the Sandbourne House passageway. Ryad Hassan said he was playing football when he heard one of his friends shout. He saw someone coming from the direction of the Sandbourne House passageway. This person had his head covered with a hood and he was wearing a bandana over his nose and mouth. He was wearing a dark top, possibly black. Ryad also ran away. Yassir Bashira said he heard a shout and ran. Men were approaching from the passageway, he thought five or six of them. They were wearing masks or bandanas and had their hoods up. In his statement Yassir had said that the men were wearing black hooded tops or jackets. When recalled to give further evidence, he said that the tops were red, green and white. The judge permitted the prosecution to treat the witness as hostile. He claimed that his memory varied as to the colour of the men’s clothing. When he made his statement he had genuinely been trying to remember. Bajrmshame Hashani 14. Ms Hashani, a local resident, was giving assistance to the dying Milad Golmakani when the police and ambulance personnel arrived at the scene. She was treated as a significant witness. On 21 April 2011 DC Kohli visited her at her home and took notes of their conversation. On 22 April Ms Hashani attended the police station where she took part in a recorded interview which, with breaks, lasted from 11.30 am to 4.35 pm. The transcribed record of interview was served on the defence as unused material. On 21 February 2012 Ms Hashani signed a witness statement that had been prepared for her from the transcripts of interview. It was served with a notice of additional evidence and Ms Hashani was made a fully bound witness. On 19 March 2012 counsel for the prosecution, Mr Moore, sent an email to defence counsel with a running list of witnesses for trial. Ms Hashani was marked as a witness to call although it was noted “NB: cannot attend, unwell”. On the following day the prosecution served statements from Ms Hashani’s general practitioner, Dr Patel, and DC Larson, who had made a recent visit to the witness. 15. Mr Moore informed this court that early in the trial he had run out of ‘live’ witnesses and was using the time available to read the statements of witnesses who were not required to attend. In the course of this process he learned that the defence was content for the statement of Ms Hashani to be read. Therefore, he read an edited version of the statement to the jury. In that statement Ms Hashani described the incident as follows: “On Wednesday the 20 April 2011 between 4.10 pm and 4.20 pm I left my home address and walked through the Abbey Road estate to go to the shops. As I was walking out of the estate I went past the stadium on my right hand side. I would describe this as a small play area with a fence round it where they play football. As I’ve gone past this stadium I saw the victim who was later stabbed playing football inside the stadium with about 15 to 16 other youths. I would describe the male who died as being mixed race, abut 20 years old, he’s got shoulder length, what I would call locks. I am not sure whether they were plaited or twisted but he had a small beard on his chin and he had a short sleeve t-shirt which was white without any logos on it and it was short in length showing his midriff and he had light blue or white jeans on. I walked past him and went to do my shopping. About 20 minutes later I returned with my shopping and stopped by a barrier that is there to stop cars from driving onto the estate. As I was stopped, I could see to the left of me the stadium and from there I could see 3 youths armed with knives chasing the victim and his friends. Initially they’re chasing them inside the stadium and then they chase him out the stadium and catch up with him. They chase the victim and 3 of his friends out the stadium, the 3 friends manage to run away but they manage to surround the victim, and while they’re chasing them inside the stadium and out the stadium they’re shouting and swearing at him. They shouted out to his 3 friends that ran away, “come back, we’re gonna do the same to you right”. The 3 suspects then surround the victim and as soon as his friends had run one suspect stabbed to the front and because the other 2 guys were behind him so he could not escape. He stabbed him in the heart area, once or twice and I think they did about 3 times in the back. I just said, “stop stop”. The victim then staggers about the place and collapses. Upon stabbing him the 3 suspects then run off in the passage way that runs parallel to the children’s playing area, which is on my left and they were laughing as if they had not done anything. In the play area there are 4 children swings in this play area and that’s the only children’s play area on the estate. I went over to the victim and I asked him if he would like some water as he was shouting for help and an ambulance. I left him and walked back to my home to get some water and was only a couple of minutes. I came back with 2 bottles of water, opened one of the bottles of water and while he’s lying down I helped him drink some by pouring it into his mouth initially he drank. It was quite sudden but he then lost consciousness and lies on the floor. I saw that he had stab wounds at the back and front. After a while the police and the ambulance arrive so I left and went back to my flat.” 16. Ms Hashani described the appearance of the three attackers as follows: “I would describe the 3 suspects as: The second one to run out of the stadium was a dark skinned black male about 5’10” – 5’11” tall, slim build. He had his hood up so I could not see his hair. He was wearing a red or plum hooded top. It had a logo which was black and white, capital letters across the chest. He had light blue jeans on which he wore quite low like most of the youths do nowadays. They were baggy jeans but didn’t have any distinctive logos or any marks on them that I remember. I cannot remember what sort of footwear he had on. He had a knife in his right hand and the blade of the knife came out the bottom of his hand. When he surrounded the victim he stood, sort of behind the victim. I drew a picture of this knife which I exhibit as BH/1. I think the blade was about 10 inches in length. I didn’t actually see him stab the victim but he was stood behind him making movements with the knife. After that he ran off past the children’s playground. The second suspect was directly behind the victim as they ran out of the stadium. I would describe him as a black male, about 16-17 years old, dark skinned and he was wearing a grey/grey hooded top. I couldn’t see his hair because he had the hood up but on the back of the hooded top he had a black and white football logo and dark jeans. He was carrying a knife in his right hand and the blade of that knife was coming out the top of his hand. I cannot remember the blade but it had a silver handle. I saw him stab the victim in the area by the heart as he stood in front of the victim and thrusted the knife twice with a trusting motion. He then ran off towards the passageway past the children’s playground and as he did it looked like blood on the knife. The final suspect was the third person to come out the stadium. I would describe him as a male, mixed race, very fair skinned. He was about 16-17 years old with a white hooded top, with the hood up and he had small letters across the front of the hoody where the pockets are which is across the stomach. He had light blue jeans but nothing distinctive. He had the knife held in his left hand but I cannot describe it. He was stood behind the victim to the right. I saw him making movements with the knife in his hands towards the victim’s back. I was left shocked and scared by the incident and was trembling.” 17. Almost as soon as Mr Moore had finished reading the statement he realized that there was now before the jury an unchallenged description from an eyewitness of the clothing worn by the attackers that was in some, but not all, respects inconsistent with the clothing of the group of men to be seen in the CCTV recording making their way to the scene of the attack. Having read, or re-read, the contents of the interview transcripts Mr Moore resolved to make an application to the trial judge for leave to adduce further hearsay statements made by Ms Hashani. His purpose was to introduce into the evidence of Ms Hashani her expression of uncertainty as to whether she was able to provide any description of the attackers. There has been some disagreement at the Bar as to the precise sequence of events but there is no doubt that shortly after Ms Hashani’s statement was read to the jury Mr Moore realized he had acted mistakenly and in haste. 18. At the commencement of Ms Hashani’s statement but omitted from the evidence read to the jury was the following caveat : “The contents of this statement constitute a summary of an interview conducted by DC KOHLI, DC POULTON with an interpreter Albert PRETESHI at Kilburn police station on 22/04/2011 between 1130 hours and 1645 hours. This statement does not purport to be complete and, for completeness and accuracy, it must be read in conjunction with the interview transcripts, exhibits TK/1A, TK/2A, TK/3A, TK/4A, and TK/5A.” 19. In her interviews Ms Hashani had given a coherent and consistent account of the nature of the events she had witnessed (as at paragraph 15 above). However, when asked to describe the attackers she said: “I don’t remember [the] three of them at all. I only remember his [Milad’s] friends because the other guys all had hoodies on…Only his friends I saw well. I only know that…they were black.” DC Kohli informed Ms Hashani that they needed to go through each one individually so that she could describe how he looked, what he wore and anything else the witness could remember. Ms Hashani responded: “I don’t remember at all because I was so confused and upset….I would like to finish as soon as possible…I just know they were black boys with hoodies.” DC Kohli asked Ms Hashani to concentrate on any one of the attackers and describe his hoody. She replied: “I don’t remember because I was in shock. I was trembling.” DC Kohli asked whether “it” was a dark or a light coloured hoody. Ms Hashani replied: “No, all dark hoody; one was like red or plum, dark but they were all dark hoodies.” Ms Hashani said that the one wearing the red or plum coloured hoody was about 5’10” in height and the others were taller. He was wearing baggy jeans. They were all skinny and aged 16 or 17 years. By a series of questions DC Kohli was able to elicit the descriptions that later appeared in Ms Hashani’s witness statement (as at paragraph 16 above). In some respects the descriptions matched the appearance of the young males who could be seen in the CCTV recording. However, some of the specific features of colour and marking of the upper clothing of the attackers was inconsistent with Ms Hashani’s words “they were all dark hoodies” and the appearance of the group recorded in Langtry Walk. 20. On 26 March 2012 the prosecution served an out of time application to adduce Ms Hashani’s statements in interview as to the extent to which she could describe the attackers, under section 116(2)(b) of the Criminal Justice Act 2003. The judge acceded to the application but required that some 24 pages of the interview were read to the jury, including those passages to which we have made express reference, in order that the jury should appreciate the full context in which Ms Hashani’s descriptions emerged. Evidence of movement 21. It was not in dispute that the four appellants were friends. McSween, Hutton and Ferdinand lived in the same general area and Hashi was a regular visitor. The prosecution case was that they met up in Malden Road at about 2.50 pm on 20 April 2011, close to Ferdinand’s home, and remained together until about 3.50 pm when Hutton called the taxi to take them in search of their victims. The prosecution relied on CCTV footage of a group of four young men recorded in Malden Road at 2.30 pm – 2.50 pm, in Ferdinand Street/Chalk Farm Road at 2.50 pm – 3.15 pm and in the Rowley Estate at 4.33 pm – 4.40 pm. McSween and Hutton accepted that they were present at the relevant times. They were referred to as Suspect 3 and Suspect 4 in the evidence. During the course of the trial it was accepted that those referred to as Suspect 1 and Suspect 2 were also present on each occasion. The issue for the jury was whether Suspect 1 was Ferdinand and Suspect 2 was Hashi. Hashi did not contest that he too was seen at the youth centre at around 5 pm. 22. At 1.25 pm Hashi was captured by a CCTV camera in Mare Street, Hackney driving a Vauxhall Corsa motor car taken without the consent of the owner. He subsequently pleaded guilty to the offence and later admitted at trial that he was the person to be seen in the CCTV recording driving the vehicle. He was wearing a grey coloured T shirt over a white undershirt. The white rounded neck band of the white undergarment could be seen protruding above the rounded neck of the grey T shirt. On the front of the grey T shirt was a diagonal, oblique block capital logo in white spelling the word ‘ NIKE ’. From a distance the logo bore the appearance of a block of white colour on a grey background. At 3.13 pm CCTV captured a group of four men walking in Ferdinand Street. Two of them were admittedly McSween and Hutton. A third was said to be Ferdinand but that depended primarily on inference from the fingerprint and cell site evidence, the telephone traffic and the conclusion that, despite his denial, he was carrying his own mobile phone. The judge directed the jury that the CCTV recording was of insufficient quality to attempt a facial identification and, while the jury could use the CCTV evidence to examine general consistency or inconsistency with build and height, they were forbidden from undertaking any exercise in facial identification. The head of the fourth man could not be seen in the recording but he was wearing garments that bore close similarity with the image of Hashi seen in the admitted CCTV recording of the Vauxhall Corsa: the white collar band of an undershirt could be seen protruding above the outer garment on which was to be seen a diagonal block of white in the same position as the ‘ NIKE ’ logo shown in the earlier film. 23. A consultant podiatric surgeon, Mr Barry Francis, gave evidence that he had compared the walking gait of the person he referred to as ‘Suspect 2’ in CCTV footage recorded in Malden Road at 2.50 pm with a person recorded by CCTV in the Rowley Estate at 4.35 pm and with an admitted CCTV recording of Hashi in police custody on 27 April 2011. Mr Francis identified several features of walking gait that were common to Suspect 2 and Hashi, and he found no differences that could distinguish them. The prosecution asserted that it was safe to conclude that Suspect 2 in all four recordings was Hashi; accordingly that he was one of the attackers who entered Abbey Road Estate at 4.40 pm. The alibi evidence 24. Ferdinand and Hutton asserted that some time before 3 pm on 20 April 2011 they met in Malden Road and smoked cannabis together. Hutton needed a phone because his own was running low on battery charge. Ferdinand lent Hutton his phone. Ferdinand said that at the time of the attack he was at the barbeque in St Mary’s Church youth centre. Hutton entered the centre after the taxi had driven him to the vicinity and he returned Ferdinand’s phone. A youth worker, Dayne Ayok, gave evidence that he saw Ferdinand at the barbeque at, maybe, 3.15 pm to 3.30 pm. It was common ground that the police entered the centre at about 5 pm. Mr Ayok said he had seen Ferdinand some half to three quarters of an hour before they arrived, and again at about the time the police had arrived. Jason Allen was the manager of the youth centre. Although he saw Ferdinand at the barbeque he could not say at what time. The other three appellants had also attended. The barbeque had ended at about 9 pm. 25. On 20 April 2011 Ferdinand was subject to electronic monitoring by means of a tag. It was agreed that at 12.50 pm he left his home and returned at 3.02 pm. He left again at 3.05 pm and did not return until 5.08 pm. He left at 5.10 pm and returned at 5.16 pm. He left at 5.27 pm and returned at 5.38 pm. He left at 5.40 pm and did not return until 9.02 pm. Ferdinand explained his absence from the barbeque just after 5 pm by saying that he had left to smoke cannabis. He returned some 40 minutes later. He accepted that he had made calls on his phone to McSween shortly after 5 pm. That was, he said, because Hutton had told him “something had happened” to Lij. The issues before the jury 26. Thus, the jury’s task was to reach a conclusion whether those who entered the Abbey Road Estate from Langtry Walk comprised the group who chased and attacked the victims Golmakani and Salah Uddin and, if so, whether a joint enterprise to carry out a murderous attack on those victims with knives was established. If it was, the jury next had to consider whether Ferdinand and Hashi were Suspects 1 and 2 in that group. In Ferdinand’s case the issue was whether his admitted association with his co-accused, the presence of his fingerprints and the movements of his phone established his presence and participation at the scene of the attack. In Hashi’s case the issue was whether the CCTV material established that he was present and participating. It follows from the verdicts returned that the jury rejected McSween’s account of the nature of the incident in which he was involved, rejected Ferdinand’s evidence of alibi, and found that Ferdinand was Suspect 1 and Hashi was Suspect 2. Grounds 1 and 2: evidence of Bajrmshame Hashani (McSween, Hutton and Ferdinand) 27. The appellants rely upon the adversarial nature of a criminal trial. There was evidence from Ms Hashani and others that a single group of hooded youths entered the area of the basketball court and attacked Milad Golmakani. This was inconsistent with the account given by McSween who claimed that he was set upon by a separate group that approached him from the opposite direction. On the other hand, Ms Hashani had given a description of the clothing worn by the attackers which in some respects cast doubt on the prosecution case that those who attacked Golmakani were the same group as those who could be seen in the CCTV film approaching Abbey Road Estate along Langtry Walk. The defence reached the conclusion that although Ms Hashani’s evidence tended to establish a joint enterprise they had ground to gain from the inconsistency revealed by Ms Hashani’s descriptions of clothing and, for this reason, it was agreed that the evidence of Ms Hashani should be read, despite its capacity also to undermine the case for McSween. Mr Grunwald QC, on behalf of McSween, assured the court that had the prosecution not adduced the evidence of Ms Hashani he would certainly have called her during the defence case. It was submitted on behalf of Hutton by Mr Richmond QC that once agreement had been reached between the prosecution and the defence for the reading of the evidence of the witness, the prosecution should not have been permitted to undermine that evidence. To do so immediately created unfairness to the defence. Had the defence known in advance of the prosecution’s volte face it would not have agreed to the reading of the evidence in the first place. 28. The overriding objective is that criminal cases should be dealt with justly, which includes the requirements that the prosecution and the defence should be dealt with fairly, that the Article 6 ECHR rights of the defendant should be recognized and that the interests of witnesses should be respected (CrimPR, Rule 1). 29. In our judgment, the fact that the prosecution had read the evidence of Ms Hashani created no automatic prohibition against its subsequent application to adduce further evidence. The objective of the rules of evidence in a criminal trial is not to create a windfall forensic advantage for one side or the other but to do justice. It seems to us that in the absence of agreement by the prosecution as to the accuracy of Ms Hashani’s descriptions, her expressions of doubt as to her ability to provide accurate descriptions were undoubtedly admissible. If the jury were denied access to the context in which Ms Hashani’s descriptions were given they may have been misled as to their reliability. Whether the prosecution should be permitted to succeed in its further application seems to us to depend upon the circumstances, including the stage that the trial had reached, and the ability of the trial judge to avoid unfair prejudice to any defendant. We accept, as the trial judge clearly did, that Mr Moore made an error in failing to appreciate, before reading Ms Hashani’s statement to the jury, the capacity of the witness statement to mislead. We accept that there were proper grounds, subject to fairness to the defence, on which the prosecution should have been permitted to correct that error. 30. In the ordinary course, had the application to adduce further evidence succeeded, the witness would have been called by the prosecution to give evidence in person. The prosecution would not have been permitted to cross-examine its own witness. Mr Moore would have been limited to asking the witness for her own assessment of her ability to give an accurate description, if necessary enabling the witness to refresh her memory from her previous statements, including the recorded interview. As Mr Richmond QC correctly observed, had the witness expressed the same reservations in evidence as she did in interview as to her ability to provide descriptions, there was available to the defence the ability to ‘bolster’ the credibility of those descriptions by reference both to the statement and to the interview. We have read the interviews in their entirety and we acknowledge that there was available to the defence the cogent argument that, while Ms Hashani was at first most reluctant to commit herself to a description of individuals, she was able with some fluency and without expressions of doubt to describe the clothing that the attackers were wearing. It was on the witness’s description of clothing that the defence relied for its attempt to undermine the prosecution case. In our view, had the prosecution applied to call Ms Hashai to give evidence in person there would have been strong grounds for allowing it. It was a matter for the jury to assess the extent to which the witness’s descriptions were reliable and the further evidence would assist them in that regard. However, the prosecution asserted that Ms Hashani was unfit to give evidence. 31. The judge concluded that there was nothing in section 116 of the Criminal Justice Act 2003 that prohibited the application made by Mr Moore. Section 116 provides in its relevant parts: “116 Cases where a witness is unavailable (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter; (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are— (a) …. (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) - (e) …” In Riat and Others [2012] EWCA Crim 1509 (Hughes LJ, Vice President, Dobbs and Globe JJ) this court reviewed the operation of the hearsay provisions of the Criminal Justice Act 2003 in the light of decision of the Supreme Court in Horncastle & Others [2010] 2 AC 373 ; [2009] UKSC 14 . The court re-iterated the default position that hearsay evidence is inadmissible unless admitted through a gateway provided in section 116 or admitted in the interests of justice under section 114 (or the evidence is admitted under one of the common law exceptions preserved by section 118). Hearsay evidence is not to be “nodded through”. It is a specific requirement of admissibility under section 116(2)(e) (witness absent through fear) that the evidence should satisfy the interests of justice test and that consideration is first given to the use of special measures to enable the witness to give evidence in person. In other cases the discretion remained to exclude evidence under section 78 of the Police and Criminal Act 1984 (“PACE”) and in making the appropriate judgement of unfair prejudice the court should use as an aide memoire the factors to be considered under section 114(2). 32. In our judgment the trial judge was right to conclude that the only pre-conditions to admissibility of hearsay evidence under section 116 are those stated in section 116(1). It seems to us that the questions for the judge were whether (1) the test of unfitness to give evidence was met and (2) the admission of the evidence would be unfairly prejudicial to the defendants in the circumstances in which the application had arisen. 33. The judge found that the lateness of the application did not of itself create any prejudice to the defence. We agree. The judge was provided with a statement made by Ms Hashani’s general practitioner, Dr Patel, on 7 December 2011. Ms Hashani (aged 37 at the date of trial) suffered poorly controlled epilepsy. She was diagnosed with depression in May 2009. She was prescribed anti-depressant medication and her condition improved. She relapsed in January 2010 and attended surgery at regular intervals having suffered increasing panic attacks and epileptic fits. After a consultation in July 2010 Ms Hashani was referred to the neurology department at St Mary’s Hospital, Paddington. Her anti-depressant and anti-epileptic medication was increased. In April 2011 Ms Hashani reported back to the surgery that she had witnessed a gang-related stabbing. She was anxious, unable to sleep and was worried about reprisals and increasing fits. In July 2011 she was suffering four fits a day and her medication was again increased. A similar picture presented in October 2011 when Dr Patel noted that Ms Hashani, who had other medical problems, was noticeably upset and low. Dr Patel concluded: “…I believe that Ms Hashani suffered from significant anxiety/depression prior to this incident and has continued following. My concern as her GP is that she may not be able to deal with the stress of giving evidence at court psychologically. I feel if she was to give evidence, it would cause significant stress/anxiety and, therefore, have a detrimental effect on her both prior to her attendance at court and afterwards.” 34. DC Larson gave evidence. He had visited Ms Hashani on three occasions. In August 2011 Ms Hashani appeared to be weak and her voice was shaky. She was about to attend hospital and asked DC Larson to return on another occasion. The officer made a number of subsequent calls and visits but was unsuccessful in making contact. He next saw Ms Hashani on 9 November 2011. He wanted to discuss with Ms Hashani her attendance at court. She became very distressed and appeared to panic at the prospect. She told DC Larson that she was not well enough to attend court and collapsed by her front door. DC Larson helped her up and they sat together on the stairs. She was pale, unwell and upset. Ms Hashani explained that she recently undergone heart surgery and her health in general had deteriorated. She felt unable to leave the house and had been advised to avoid stressful situations. On 29 November 2011 Ms Hashani made a witness statement in which she said that she had recently undergone a serious heart operation. She was unable to leave the house. She had been advised that stress may put a strain on her heart or trigger epileptic fits. On 21 February 2012 DC Larson made his last visit to the witness. On this occasion he had visited to ask Ms Hashani to confirm and sign her witness statement of the same date. She was nervous and shaking. Ms Hashani told DC Larson that the very thought of giving evidence was causing her stress. It was her view that she was not well enough to attend. The officer formed a personal view that Ms Hashani was unfit to attend to give evidence. The judge concluded: “It is plain in my judgment, and I am sure, that she is unfit to attend as a witness. He found that the medical and other evidence he had heard persuaded him that the use of special measures would not overcome Ms Hashani’s unfitness to give evidence. 35. It is contended on behalf of the appellants McSween, Hutton and Ferdinand that the material before the judge did not entitle him to find that the witness was unfit to attend trial. The last visit by the officer had been made three weeks before the trial. Dr Patel’s report, which expressed fear of possible consequences and not an unconditional diagnosis, was out of date by the time of trial, which commenced on 19 March 2012. The judge failed, it is submitted, to give adequate consideration to the question whether the stress of giving evidence could be alleviated by the use of special measures, including the use of a remote video link if necessary. 36. The appellants undertake the burden of demonstrating that the judge’s decision was wrong. We recognise that the medical evidence was dated December 2011. However, it established a long term and ongoing condition that caused Dr Patel to fear for the consequences of an attempt to persuade the witness to give evidence. It was Dr Patel’s view that the process of giving evidence would have a detrimental effect on her patient’s physical or psychological condition. The evidence of DC Larson was to the effect that he had observed no improvement in the witness’s condition between August 2011 and February 2012. Indeed that was the view expressed to him by the witness herself. While DC Larson was not medically qualified he was aware of the rigours of a criminal trial and it is our view that the judge was entitled to place reliance upon his evidence when considering the issue whether it was possible there had been an improvement since December. We note that the witness was not at that time expressing reluctance to attend through fear of facing the defendants, the problem that special measures are primarily designed to meet. Nonetheless, the judge did consider whether special measures could provide an environment in which the risk to the witness’ health could be reduced, but he concluded that, by reason of the nature of her condition, they would not. It has not been demonstrated to us that the judge was wrong to find that the witness was unfit to give evidence, whether with the assistance of special measures or not. 37. It is contended on behalf of the appellants that the judge should have exercised his residual judgment to exclude the evidence under section 78 of PACE 1984. By permitting the prosecution to adduce further written evidence from the witness the defence had been deprived of the opportunity to cross-examine to effect so as to restore the credibility of her descriptions of the attackers. Although section 116(4) of the Criminal Justice Act 2003 expressly applied only to cases in which the witness was said to be absent through fear, the judge cautiously and rightly, in our view, applied the interests of justice test to the judgment of prejudice under section 78. He noted that there was nothing in the material that the prosecution sought to adduce that was contrary to the affirmative case of any defendant. The evidence of a joint attack by a group was confirmed by at least one other witness. As to the descriptions given by Ms Hashani, the judge noted that her witness statement made specific reference to the interview as providing the complete and accurate account of her evidence. The judge did not regard the admission of the evidence as tantamount to cross-examination of the witness on the credibility of her evidence. It was, he said, merely placing before the jury the whole of her account and not just part of it; it was difficult to see how that process could involve unfairness to the defendants. 38. We do not take as laconic a view of the issue of unfairness as did the judge. We acknowledge that the absence of the witness was capable of creating unfairness to the defence in the light of the previously made decision to permit the prosecution to read her statement. However, such unfairness as might be generated arose only from the capacity of the further evidence to diminish a submission available to the defence at the close of the evidence, to the effect that an eyewitness had given an apparently reliable account which had the capacity, depending on the jury’s view, to cast doubt on aspects of the prosecution case. There are, it seems to us, two reasons why no unfairness was done to the appellants in the result. The first is that the judge was correct to rule that the witness was unfit to attend. Had the prosecution, in the first place, received the judge’s leave to read Ms Hashani’s account under section 116(2)(b) instead of seeking agreement from the defence to read only the statement, the appellants could not have resisted the application to read both the witness statement and the interviews, the former of which expressly adopted the latter. The appellants were not, therefore, placed in any worse position than they would have been if there had been no agreement to read the statement. Secondly, we have referred already to the capacity of the interviews to support the defence case that, far from undermining Ms Hashani’s description of the clothing worn by the attackers, the manner in which the evidence emerged demonstrated its reliability. Defence counsel were able to make the very submissions to the jury that they had always intended. The only adjustment required was an examination of the interviews to show how those descriptions had emerged. 39. In his summing up the judge reminded the jury that Ms Hashani’s statement had been read by agreement between the prosecution and the defence but that the interview had been introduced in evidence on the application of the prosecution under a different legal provision: the jury, when assessing the effect of Ms Hashani’s evidence, should bear in mind that they had not seen the witness and that her evidence had been untested by cross-examination. Having summarised Ms Hashani’s statement and interviews the judge directed the jury that they should decide the importance to be attached to her evidence. They should consider in particular whether, with regard to her description of the colour of clothing, she was mistaken or confused or whether, bearing in mind the burden and standard of proof, she may be right. Mr Holland QC argued that in light of the circumstances in which the interview had been admitted in evidence the judge should have emphasised the disadvantage to the defendants of the absence of the witness. It seems to us that had the judge descended to particulars the appellants’ position could not have been improved and may only have served to confuse. The judge made it plain to the jury that in deciding whether to act upon the descriptions given by Ms Hashani the burden was upon the prosecution to demonstrate that she was mistaken. In our judgment, the judge’s decisions under section 116 and section 78 were properly made and no unfair prejudice to the appellants resulted. Grounds 3 and 4: cross-examination of Sean Hutton (McSween and Ferdinand) 40. At the commencement of trial the prosecution indicated that it did not propose to introduce evidence that the victims and the defendants were members of opposing gangs in north London and, therefore, evidence of motive. If, on the other hand, the defence sought to introduce evidence that the victims may have had enemies other than the defendants the prosecution would seek to adduce evidence of gang membership. The defence, acting on that assurance, did not seek, by cross-examination or otherwise, to introduce evidence of motive. 41. Cell site evidence showed that on the night before the killing of Milad Golmakani Sean Hutton had been in the Pimlico area, London SW1, and had remained there until the early hours of the morning. While Sean Hutton was giving evidence a discussion took place between Mr Moore and Mr Richmond QC during which Mr Moore indicated his intention to ask questions of Hutton as to his movements in Pimlico. Mr Moore was informed that Hutton would say he had been dealing in class A drugs. There was no objection from Mr Richmond to this line of questioning. There were two purposes behind Mr Moore’s questions: Hutton and McSween claimed that they went to some trouble to find Smokey, a person they did not know, in an area some two miles distant from their homes, in order to make a purchase of cannabis. Mr Moore wished to suggest that if Hutton had access to class A drugs it was unlikely that he had any need to go to the lengths he did to purchase cannabis from a stranger. He would have ready access to drugs from trusted suppliers. Secondly, Mr Moore wished to demonstrate that if Hutton was a dealer in class A drugs it was improbable that he would allow the battery on his mobile phone to run low on charge or that he would take the risk of using another’s person’s mobile phone to deal in drugs. Both these points, if well made, tended to undermine the account given by Hutton and McSween as to their purpose in seeking out a man in the Abbey Road Estate, and Ferdinand’s and Hutton’s account that Hutton needed to borrow Ferdinand’s phone. 42. When the evidence emerged in cross-examination Mr Holland QC sought the discharge of the jury. The judge rejected the application. It is now argued on behalf of the appellants Ferdinand and McSween that the cross-examination of Hutton was improper. It took place without consultation with counsel for the defendants and without application to the trial judge. It is submitted that the prosecution had in effect resiled without notice from its undertaking not to introduce evidence of motive. The defence cases had been conducted in reliance upon the undertaking given. Had it been anticipated that the prosecution would act as it did the defence would have been conducted differently. Asked by the court to explain the connection between Mr Moore’s cross-examination of Hutton and motive, Mr Holland QC suggested that the jury might jump to the conclusion that the visit by the group of four to Abbey Road Estate had something to do with Hutton’s class A drug dealing the night before. 43. Section 101(1) of the Criminal Justice Act 2003 defines the circumstances in which evidence of bad character may be introduced in evidence. Section 101(1)(a) provides that such evidence may be admitted when all parties consent to its admission. In the present case the prosecution did not seek the consent of the other parties, only counsel for Hutton; neither did the prosecution make an application to HHJ Wide QC for leave to introduce the evidence under one of the other gateways available. Mr Moore accepted that this was an oversight on his part. It is accepted that had the application been made, as it should have been, the other defendants would have had the opportunity to make submissions which might have affected the merits of the application. This is a most unsatisfactory state of affairs. As Mr Holland QC’s application to the judge demonstrates, the failure to follow the requirements of the statute could have led to serious consequences for the continuation of the trial. 44. We are satisfied, however, that had the application been made to the judge there would have been strong grounds for the admission of the evidence under section 101(1)(d). The evidence was relevant to important matters in issue between Hutton and the prosecution, namely his purpose in being at the Abbey Road Estate and his explanation for the movement of Ferdinand’s phone to that part of London. There was no objection from the defendant whose case was immediately affected. If the judge had so concluded the evidence would have been admitted subject to its effect upon the fairness of the proceedings generally under section 78 of PACE 1984. 45. As to Mr Holland QC’s first submission, we fail to understand how Mr Moore’s questions could, without more, have had any effect upon the undertaking not to introduce evidence of motive. In our judgment, the argument that the jury might conclude that drug dealing in Pimlico was the explanation for the killing in Kilburn does not bear examination. The judge dealt with the complaint made on behalf of Ferdinand by requiring an explicit admission from the prosecution. It was as follows: “Cannabis is a class B drug. Mr Hutton’s involvement in dealing class A drugs is only relevant in this case to the use of his own telephone and his explanations as to why he was purchasing cannabis on 20 April 2011. There is no suggestion, and it is is no part of the prosecution case, that Mr Hutton’s activities in dealing class A drugs has any other relevance to his case or to the alleged offences on the indictment.” The judge emphasised the importance of those admissions in the course of his summing up. We accept that the process by which the evidence was introduced was unsatisfactory but we do not accept that the answers given by Hutton created any unfair prejudice to the cases of the other defendants. Ground 5: misdirection of fact (Hutton) 46. The jury heard evidence that two police officers, PC Robson and PC White, were in the Primrose Hill area at about the time when Mr Gurhey deposited his passengers not far from St Mary’s Church youth centre. They saw three people wearing hooded jackets who appeared to be running away from them, so they gave pursuit. They ran to the youth centre and the officers entered behind them. They made a search but could not find the people they had followed. At 4.59 pm Lij McSween was to be seen on a CCTV recording cycling over a railway bridge near Chalk Farm tube station. Ferdinand’s case was that he was already at the barbeque when the police arrived. The prosecution case was that he was one of the three individuals who ran into the church followed by the police. McSween in the meantime had separated from the other three with the intention of seeking treatment for his injured hand. Ferdinand gave evidence that he walked home from the barbeque shortly after the police left at about 5.00 pm. He wanted to smoke cannabis. The judge reminded the jury of the evidence of Mr Baxter, the cell site expert, that between 5.41 pm and 5.47 pm, when on Ferdinand’s account he had recovered his phone from Hutton, Ferdinand appeared to be moving west towards the church at a time when Ferdinand had said he did not leave his block. The judge then referred the jury to cell site evidence that, the prosecution had argued to the jury, suggested that Ferdinand had moved to the west of St Mary’s Church. Mr Holland QC interrupted the judge’s summary of the evidence (transcript 19 April page 86) to remind him that Ferdinand’s evidence was that he was moving west during this period, towards St Mary’s church, not that he was at home (see also paragraph 25 above). The judge acknowledged that Mr Holland was “absolutely right”. After further discussion in the presence of the jury, during which Mr Holland submitted that the cell site evidence did not support an assertion that Ferdinand was west of the youth centre rather than moving from his home towards the youth centre, the judge repeated that Mr Holland was “absolutely correct”. He continued, “That is a point very well made and I am grateful to you”. The jury heard all of these exchanges and in particular the judge’s endorsement of Mr Holland’s submissions. 47. Mr Holland again raised the matter with the judge at the lunch adjournment. Mr Baxter had given evidence that the call sequence was consistent with Ferdinand’s phone moving westwards towards and to St Mary’s Church. The prosecution had argued that it was also consistent with it moving west of St Mary’s church. Mr Baxter had never been asked for his opinion whether a call that picked up the Centre Heights mast was inconsistent with Ferdinand’s case, but that now appeared to be the submission made by the prosecution to the jury. Mr Holland sought from the judge a specific correction. The judge offered to remind the jury that there was no evidence of the area covered by the Centre Heights mast. Mr Holland responded, “That is as much jam as I can ask for, even if I cannot have the cream”. As soon as the jury returned, the judge was as good as his word. He added, “the safest thing to do is to ignore it and that is what I direct you to do”. At the end of the day Mr Holland QC again rose, in the absence of the jury, to suggest that the judge in making his further correction had neglected to refer to the sequence of calls that was consistent with Ferdinand’s evidence as to his movements. The judge emphasised that if he had misunderstood Mr Holland’s point he was anxious to correct the error. On 23 April, while summarising Ferdinand’s evidence the judge repeated his warning to the jury that they should not use the cell site evidence to reach any conclusion that Ferdinand moved to the west of St Mary’s church at about 5.40 pm. 48. It is contended that the only satisfactory way of issuing a correction to the jury was for the judge to deal with the whole sequence of calls numbered 187 to 193 again, to rehearse the effect of the evidence concerning two masts, Dawnay and Centre Heights, and by that means demonstrating that the cell site evidence could not and did not establish that Ferdinand’s evidence as to his movements was wrong. In our judgment that is precisely the effect of the judge’s adoption of Mr Holland’s submissions. The jury were specifically directed, in conclusion, that they could not use the cell site evidence to the effect for which Mr Moore had attempted to use it in his final speech. In our view, despite Mr Holland’s concerns the judge’s correction of a false point could hardly have been clearer and no misdirection or unfairness is established. Ground 6: fresh evidence (all appellants) 49. The appellant Ferdinand, with the support of the appellant McSween, seeks leave to adduce in the appeal the evidence of Milo Charlesworth. If admitted his evidence affects the cases for each of the appellants. The court heard the oral evidence of the witness with a view to reaching a decision whether it should be admitted under section 23 of the Criminal Appeal Act 1968. 50. Milo Charlesworth was born on 14 May 1995 and was therefore aged 15 years at the time of Milad Golmakani’s death. Mr Charlesworth said that he lived in Paddington but would visit the Abbey Road Estate frequently. He associated with a group called Sin City. There was trouble with a rival group, Queen’s Crescent, to which Ferdinand was affiliated. He knew Mr Golmakani as ‘Dirty’. Mr Charlesworth gave evidence that he went to the estate on 20 April 2011 to see his friend Yassir Bashira. He entered alone on a bicycle through a gate to the south of the basketball court. Mr Charlesworth was able to identify the gate from a plan and photographs used in the course of the trial. He saw Yassir, Milad and Vincent Kamara. A commotion was already taking place. His friends were trying to escape from a group of three attackers. From a distance of 10 – 15 metres he saw that the three attackers were 20 – 30 years of age and of black, west African appearance. They were wearing colourful clothing. He had seen Ferdinand in some YouTube videos and was 100% sure that Ferdinand was not one of them. He saw roundhouse swings towards those who were trying to escape. At first Mr Chamberlain was himself like a rabbit in the headlights. He heard screams and then he left for his own safety. 51. When cross-examined on behalf of McSween Mr Chamberlain said that Ferdinand’s solicitor had shown him photographs of the four appellants. He was sure that McSween was “not there, because of his skin colour”. When asked questions by Mr Moore Mr Chamberlain claimed that he had not discussed what he had seen with anyone before he had come forward a few weeks ago. That was because people did not come out after the incident. None of his friends told him that they were witnesses and he did not discuss the forthcoming trial with any of them. Asked why he had now chosen to come forward, Mr Chamberlain said that he had converted to Islam, turned his life around and could not sleep with the knowledge that he knew the appellants had not attacked his friends. Mr Chamberlain was the only witness to claim that the attack on Milad Golmakani had taken place on the far side of the basketball court from the gate through which he, Chamberlain, had entered the area. Mr Chamberlain said that he could not tell whether the attackers had been wearing masks or scarves but he could see their faces despite the fact that they were wearing hoods over their heads with the draw strings pulled. Mr Chamberlain was asked how he was able to exclude McSween when McSween was not known to him. He replied “from his skin colour and his stature”. When it was pointed out to Mr Chamberlain that the black and white photograph shown to him depicted only McSween’s head, face and neck, he replied, “The other men were like bouncers; they had very broad shoulders”. Mr Chamberlain accepted that he had been visited at home by a police officer on 5 July 2011. DC Hiscock had been seeking information from anyone who was present at the scene. He told DC Hiscock that he knew nothing about the incident, was rude and unco-operative. That was, he said, because the officer was arrogant and, in any case, he did not co-operate with the police. Mr Chamberlain told the court that he had himself been sentenced to a detention and training order for 24 months following his conviction for an offence of wounding with intent, committed on 12 January 2012. 52. Each member of the court concluded that in his efforts to exculpate the appellants Ferdinand and McSween Milo Chamberlain was a fluent and unabashed liar. He demonstrated his manifest untruthfulness as a witness by purporting to be able to exclude McSween on the basis of his stature when McSween was unknown to him and there was nothing in the photograph shown to him that could have enabled him to make the comparison. When approached by the police in July 2011 Mr Chamberlain had claimed that he knew nothing about the incident when, if his present account is true, he had much to say. What he did have to say was inconsistent with the preponderance of the evidence given by others. In our judgment, Milo Chamberlain’s evidence is not capable of belief and we decline to admit it in the appeal. Ground 7: gait comparison evidence (Hashi) 53. The trial judge directed the jury that they could not use the CCTV evidence to make any facial identification of Ferdinand or Hashi. The images were of insufficient quality to make the attempt. The prosecution relied upon the following features of the CCTV evidence to invite the conclusion that Suspect 2 in each of the images was Hashi: (1) Suspect 2 was of similar build, skin colour and height to Hashi; (2) Suspect 2 wore a combination of clothing that was similar to that worn by Hashi at 1.30 pm on 20 April 2011 (see paragraph 25 above); (3) The walking gait of Suspect 2 bore strong similarities with that of Hashi recorded in the custody suite of Chelsea police station on 27 April 2011 and there were no differences between them (see paragraph 26 above). 54. The prosecution relied upon the evidence of Mr Barry Francis to establish the similarity of walking gait. Mr Francis is a consultant podiatric surgeon. For well over 25 years his clinical practice had required him to analyse walking gait for the purpose of ascertaining whether the patient’s condition was susceptible to treatment by surgery, usually to the foot or ankle. For this purpose Mr Francis had utilised video imaging and was used to the examination of such images. He was formerly a tutor examiner at the Faculty of Podiatric Surgery and chair of professional conduct for the College of Podiatry. He had given evidence on many previous occasions in the field of personal injury claims and had acted as an expert on five previous occasions in criminal cases for both the prosecution and the defence. Mr Francis’s qualification to act as an expert in this field was not challenged by the defence. 55. Mr Francis identified two different aspects of his analysis of gait: features and flow patterns. A ‘feature’ he described as an abnormality in the position of body parts in the walking cycle; a ‘flow pattern’, on the other hand, was a product of the walking cycle, such as its speed or length of stride. In his clinical practice Mr Francis would carry out such an analysis on his patients 35 – 40 times a week. Mr Francis had been visited by the police on or about 14 September 2011 and supplied with the CCTV footage at Malden Road, Rowley Estate and the Chelsea police station custody suite. In his report Mr Francis said that he was asked to examine the material with a view to expressing an opinion as to whether there were features of walking gait common between the images of any of the individuals shown in the footage. In a later passage Mr Francis referred to discs of footage of “an unidentified male seen in Malden Road…and Rowley Estate” which Mr Birmbaum suggests betrays a predisposition towards a finding or an assumption that the individual seen in that footage was one and the same person. We are not at all sure that is a fair inference. However, as it turned out, no-one disputed that Suspect 2 in the Malden Road and Rowley Estate footage was indeed one and the same person. Mr Francis described his process in detail. He commenced by examining the Malden Road and Rowley Estate footage, which he described as the ‘benchmark’ footage. His first task was to ascertain whether the quality of the images and variation of camera angles permitted any meaningful analysis to be made. He concluded that it did. Having decided that the images permitted analysis Mr Francis examined them for a period of 11 hours or so in order to identify any features or patterns that were repeated. Mr Francis concentrated on the person he called Suspect 2. Having identified patterns and features in the benchmark material he examined the custody suite footage in order to make a further comparison. Finally, he reviewed his findings frame by frame and selected still images from the CCTV recordings to illustrate his findings to the court. 56. Mr Francis found the following common features between the gait of Suspect 2 and Hashi in the custody suite: (1) On the left side the toe was turned inwards; (2) Knee-knock; (3) The stance was upright without head-poke (that is, without the head being thrust forward); (4) There was a long stride with ankle movement in the stride; (5) There was a narrow base of gait (that is, the legs passed close together in the stride); (6) When the suspect turned, he did so from the waist rather than the neck. Of these six features the most prominent was the turning inwards of the left foot at (1) above. Mr Francis looked for any dissimilarities between features of Suspect 2’s and Hashi’s walking gait observed in each of the recordings and found none. 57. Mr Francis was asked to address the subject of evaluation of his findings. He made clear that there was no database against which he could make an assessment of frequency. He could only refer to his own clinical experience. Using that experience he expressed the view that the left sided inward turn would be found in less than 5% of the population. In Mr Francis’ opinion this feature of Suspect 2’s gait could only be caused by injury or by one-sided hypermobility, itself an unusual trait. In the absence of trauma Mr Francis would expect to see knee-knock in less than 10% of the population. He gave further estimates for other features of the walking gait expressed in more or less qualified terms. For example, he said that, of the people he sees in his clinic about 5% had such flexibility that they would turn from the waist. Mr Francis also explained that in his experience there was no predisposition to one feature in consequence of the presence of another. In other words, they were unconnected. It followed that a combination of features was more significant than the presence of any one of them. 58. The appellant Hashi relied upon the expert evidence of Mr Blake, principal podiatrist at the Nuffield Hospital. His training in podiatry was similar to that of Mr Francis save that Mr Francis had subsequently qualified as a surgeon. Mr Blake had given evidence in seven criminal trials for the prosecution and the defence. Mr Blake examined the benchmark material and concluded that it was of insufficient quality to attempt an analysis of walking gait. For that reason he did not proceed to attempt a comparison between the benchmark and custody suite recordings. Mr Blake pointed out that podiatists who use moving images in their clinical practice have access to equipment that records walking gait at 250 – 600 frames per second. When they are asked to view CCTV material they may be faced, as in the Rowley Estate footage this case, with time lapse footage recorded at one frame per second. That did not necessarily mean that the footage was unsuitable for analysis, and he had himself expressed an opinion from such footage, but it was one of the many considerations to be borne in mind when posing the question whether the material was suitable or when attempting an analysis. With regard to the Rowley Estate footage he agreed that “there might be in-toe” but he could not express the opinion that there was because he could not be satisfied of the repetition required to validate his opinion. He agreed that the Malden Road material, recorded at about 15 frames per second, was of better quality but it was still insufficient to make any reliable analysis. 59. At the conclusion of the prosecution case (during the course of which Mr Blake also gave evidence) Mr Birnbaum QC made a submission of no case to answer. He submitted that the quality of the material was such that the jury could not safely rely upon Mr Francis’ opinion founded upon it. The Rowley Estate footage was recorded from eight different camera positions; the custody suite footage from five different positions. The angles were different and the clarity of focus varied. The nature of the clothing worn by Suspect 2 tended to obscure features of gait. Mr Francis had conceded that the principal features of gait on which he relied were themselves subtle and only demonstrable intermittently in the footage examined when, in Mr Francis’ view, the quality of the footage permitted it. The value of Mr Francis’ opinion was affected by the indifferent quality of the footage. Some of the views were foreshortened, the effect of which was a loss of perspective. The lack of contrast in some cases deprived the observer of detail, for example as to when the shod foot made contact with the ground. There was some distortion and the angles at which the images were recorded might have given a misleading impression. Mr Birnbaum submitted that Mr Francis was not an expert in video or digital imagery. It was unsatisfactory that he should be permitted to express an opinion based solely upon trust that he had “allowed for” the exigencies created by images of indifferent quality. 60. The judge rejected the submission of no case. He concluded that Mr Francis had explained with care the reasons for his conclusion that the benchmark material was adequate for the purpose of analysis and for his identification in that material of the features he described. Neither Mr Francis’ expertise, nor his ability to provide the jury with assistance based on his clinical experience was challenged. It was for the jury to determine whether they accepted his evidence. If they did, taken together with the other evidence relating to the clothing of Suspect 2, the jury could properly conclude so as to be sure that Suspect 2 was the defendant Hashi. 61. In his summing up the judge reminded the jury of the important features of the expert evidence. He endorsed Mr Blake’s view that before the jury could act upon the opinion of an expert podiatrist it was necessary that the features on which he relied were “clearly demonstrable” to his peers and to a lay man. For reasons we shall explain, that, in our view, was an important direction. However, when deciding whether those features were demonstrated the jury should take account of the limitations created by the quality of the images. He reminded the jury of Mr Blake’s evidence that as a result of the quality of the Rowley Estate footage he could detect only one example of the in-toe abnormality. He summarized for the jury those aspects of the footage recorded in Malden Road and the Rowley Estate upon which Mr Blake had relied for his opinion that they were inadequate for further analysis. The judge reminded the jury of Mr Francis’ expression of self-discipline that before he could act upon a comparison he must see a pattern, a repetition of features. He then looked at the custody suite footage to ascertain whether the same features were present. 62. The judge further directed the jury as follows: “At the heart of it is: Is the feature demonstrated? Is it demonstrated consistently so that you can see it, and, as Mr Birmbaum put it, so that you know what Mr Francis was going on about, so that you can see it for yourselves? Is it demonstrated and is it demonstrated consistently? Can it really be seen? Before you decide whether you have seen anything demonstrated, you have to take into account the size and clarity of the image, the possibility of distortion, barrelling as it is described, that bending of an image by reason of the camera. Is the foot really on the ground? If it is time lapse, what might the subject just have done and just be about to do and could that affect the position of the limbs? Does clothing have any effect? Do baggy trousers, for example, obscure limbs? Is arm swing restricted by a jacket over the shoulders? These are all things to be taken into account.” The judge reminded the jury of Mr Francis’ responses in cross-examination to the effect that he personally had taken these factors into account before deciding upon the existence of a feature. The judge emphasised that although the jury could test Mr Francis’ evidence against the degree of care they thought he had exercised in the process of analysis, it was for the jury themselves to exercise care when deciding whether it was right to conclude that a feature was satisfactorily demonstrated to them. In this context the judge reminded the jury that the therapeutic podiatrist and the forensic podiatrist were performing different functions in that the purpose of analysis was different as was the quality of material available for analysis. The jury should take account of the danger, as Mr Birnbaum had put it, of rolling together the Maldon Road and Rowley Estate images so as subconsciously to produce a composite whole. The judge reminded the jury that, during cross examination, Mr Francis had purported to identify a narrowness of gait in the Rowley Estate by reference to footage from the custody suite, an error that Mr Francis would not concede that he had made. 63. The jury had viewed the recordings several times during the course of the evidence and they were provided with many pages of stills taken from those recordings. The judge took the jury, in summary, through most of the images and each of the features identified by Mr Francis in his evidence, reminding the jury as he went of Mr Francis’ response in cross-examination to Mr Birmbaum’s questions upon the quality of the images and the conviction with which he expressed his identification of features. 64. As to the assessment of frequency the judge reminded the jury that there was no database that supported Mr Francis’ evidence. His assessment was founded only on his clinical experience, although, in the case of the frequency of ‘head-poke’, there had been some exchanges of experience within the profession. The judge directed the jury that no-one was suggesting that the reference to percentages was precise; indeed some of them had changed somewhat in the course of the evidence. 65. It seems to us that the judge took the utmost care to ensure that the jury understood both the exercise in which Mr Francis and Mr Blake had been engaged and that they could accept the evidence of Mr Francis only if they were satisfied that, despite the limitations imposed by the quality of the material, Mr Francis had been able to demonstrate clearly to them the features to which he had directed their attention. He disallowed any evidence from Mr Francis that purported to express in terms of probability the likelihood that Suspect 2 and Hashi were one and the same person. Nonetheless, Mr Birnbaum submits that those limitations and the lack of a comparative database render unsafe any reliance upon the features identified. 66. We do not accept the criticism that Mr Francis’ evidence was flawed by his reference to the frequency with which, in his clinical practice, he came across the features he had identified. While, during the course of his evidence, he was referring to percentages as percentages of a population, he made clear that his assessment could be and was based only upon his personal experience in practice, and the judge emphasised that this was so. There was one exception that concerned the population of those under the age of 30 years who exhibited head-poke, in respect of which Mr Francis referred expressly to discussion among experts. In our view there was no risk that the jury may have been given a misleading impression of the value of Mr Francis’ evidence. They had been warned specifically as to the basis for Mr Francis’ assessment and to be wary about any assumption of precision. 67. In his written and oral submissions Mr Birnbaum QC took the court through some of the evidence placed before the jury. He criticised Mr Francis for inconsistency and lack of forensic rigour in his acceptance of instructions and approach. He criticised the absence of notes from Mr Francis identifying the limitation of the images with which he was presented and his need to acknowledge further limitations put to him in cross-examination. He submitted that Mr Francis had purported to identify features from images that were blurred or too small for the purpose. Mr Birnbaum submitted that there was a lack of scientific approach to the question as to how “allowances” were to be made for imperfections in the images on which Mr Francis relied. As an example, Mr Birnbaum relied on Mr Francis’ “remarkable” claim that although in the Maldon Road footage it was difficult to see where the suspect’s foot ended and the ground began, he considered that he could make that judgement. Mr Birnbaum asserted that in the manner of his answers (e.g. “I can see…”) the witness failed to acknowledge the need to demonstrate to others the appearance of the feature on which he relied. On occasions, it is submitted, there was evidence of bias. Mr Birnbaum sought to demonstrate in cross-examination that Mr Francis had failed in images 107 and 108 to allow for distortions caused by the nature of the image. Mr Francis sought to justify his opinion by reference to the known stance of Hashi to be seen in the custody suite footage. This betrayed a presumption, whose impropriety Mr Francis failed to acknowledge, that Suspect 2 in the Rowley Estate footage was the same man as that shown in the custody suite. In his summing up, the judge referred to this as “the clanger dropped” by Mr Francis of which the jury had been reminded by Mr Birnbaum in his final speech. 68. Since the technique of gait comparison is a developing science, Mr Birnbaum QC having received the assistance of Professor Wesley Vernon OBE of the Sheffield Teaching Hospitals NHS Trust, invited the court to have regard to three academic papers, unsupported by further expert evidence. With some hesitation we have considered the material proferred. Published (by the Forensic Science Society) in the journal Science and Justice issue 53 (2013) at pages 339-342, was the report of a study conducted by Professor Ivan Birch and others into the ability of individuals with experience in gait analysis accurately to identify ‘suspects’ by comparison of walking gait. Seven analysts were provided with CCTV recordings of five sample ‘target walkers’ for each of whom they were provided with recordings of five ‘suspect walkers’. The walkers were similarly dressed in loose fitting clothing and wore balaclavas. The images of the suspect walkers were recorded at different angles and in different planes. The results showed that the experienced analysts made a correct identification in 71% of cases. However, there were more correct identifications made when the footage of the suspect walker was recorded in the saggital plane (recorded from the side) (78.57%) and when the angle of recording was the same between the target and the suspect walker (also 78.57%). Mr Birnbaum QC correctly observes that in the present case none of the benchmark recordings was made in the saggital plane. However, the custody suite footage was recorded in a variety of planes as was the benchmark footage. 69. In the Journal of Forensic and Legal Medicine, issue 20 (2013) at pages 915-917 was published a report by Professor Ivan Birch and others of a study to develop a tool for assessing the quality of closed circuit camera footage for use in forensic gait analysis. The study identified a number of key factors and sub-factors that were capable of affecting the quality of images received in CCTV footage, chief of which were picture quality, lighting, direction from which the image was taken, frame rate and subject. The study assigned scores to different images depending upon the existence of the relevant factors and, by that means, placed them in bands so as to provide a rank of acceptability. By adopting the technique, which the article described as a simple tool, unsatisfactory material could be excluded from analysis. That tool was not available to Mr Francis and Mr Blake and no attempt has since been made to apply the study to the images in the present case. 70. In Justice and Science, issue 54 (2014) at pages 159-163, Professor Ivan Birch and others considered the effect of frame rate upon the ability of experienced gait analysts to identify characteristics of gait from CCTV footage. The study reached the (not unexpected) conclusion at page 162 that, “The subtleties of motion occurring during gait may become more easily identifiable as the frame rate increases, whereas gross positional or structural characteristics may be more easily detectable at all frame rates”. Mr Birnbaum QC acknowledged that Mr Francis distinguished between a flow pattern whose identification depended upon movement and features of gait anomaly that were not so dependent upon the rate of frames per second. It is right to recall, however, that Mr Francis himself acknowledged that in some images he was demonstrating subtle abnormalities in gait. 71. We have also been provided with the Home Office CCTV Operational Requirements Manual 2009. Mr Birnbaum QC sought to draw from the Manual a principle that in order to discern “some characteristic detail of the individual, such as distinctive clothing…while the view remains sufficiently wide to allow some activity surrounding an incident”, the figure targeted should occupy between 25% and 30% of the screen height. The purpose of the Manual is to give advice to installers as to measurement of the objectives of CCTV installation. The positioning and calibration of equipment will depend upon the purpose for which the images are required. A camera required to capture a wide area of activity will, of necessity, see individuals at a distance. They will occupy some 5% of the screen height. If, at the other end of the scale, the camera is to be sufficient to support facial identification of a single individual, the figure will need to occupy 100% of screen height. Mr Birnbaum’s point was that several of the images of individuals examined in the present case occupied less than 30% of the screen size. However, it is plain to us that the advice given does not purport to provide an industry or minimum standard as to the range at which a camera must be set to render analysis of gait permissible or possible. That seems to us to depend on a number of factors most significant of which is the sufficiency of the quality of images produced by the camera for the purpose for which they are examined. 72. Finally, the court was asked to consider the Law Commission’s report on Expert Evidence in Criminal Proceedings in England and Wales (Law Com No 325, 21 March 2011). The Commission re-iterated its concern of the risk that juries may abdicate their responsibility to ascertain and weigh the facts and simply accept the expert’s opinion evidence (paras. 1.9, 1.15, 1.20). The presence of an opposing expert will not necessarily ensure that reliability and weight are properly protected (para. 1.20). On occasions expert evidence is inadequately challenged in cross-examination. For this reason juries may not be provided with the tools required effectively to evaluate the reliability of the evidence (para. 1.21). The Law Commission proposed that to be admissible expert evidence should be shown to be reliable. It will be reliable only if (a) the evidence is predicated on sound principles, techniques and assumptions; (b) those principles, techniques and assumptions have been properly applied to the facts of the case; and (c) the evidence is supported by [that is, logically in keeping with] those principles, techniques and assumptions as applied to the facts of the case (para. 1.32). The Commission recommended that judges should be provided with guidelines against which to test the reliability and therefore the admissibility of the evidence (para. 1.40). 73. We turn to consider each of the appellant Hashi’s grounds for challenging the judge’s handling of the expert evidence. We note that no challenge was made to the admissibility of Mr Francis’ evidence notwithstanding Mr Blake’s view that the benchmark material was inadequate for the purpose for which Mr Francis used it. Mr Birnbaum QC did not and does not challenge the admissibility of such evidence in appropriate circumstances (see in this respect Otway [2011] EWCA Crim 3 at para. 23). He was able to rely upon the expert opinion of Mr Blake and it is clear that Mr Francis was subjected to searching cross-examination both upon the principles and the techniques of the admitted expertise and its application to the facts of the present case. He submits that the evidence was shown to be unreliable because (1) Mr Francis provided his opinion in a manner that was overconfident having regard to the material on which it was founded, (2) the material itself was inadequate for the purpose of identifying features of gait, (3) the expert was not qualified to make the “allowances” he claimed to be able to make and was unable to explain what allowances he had made, and (4) the value of the evidence was overstated by references to ‘population’. 74. In order to assess the cogency of Mr Birnbaum’s submissions each member of the court has viewed the images from which Mr Francis made his demonstration of features to the jury. We accept, as did the experts and the judge, that their quality is at times indifferent and that care is required to ensure that the feature demonstrated is reliably demonstrated. We do not agree that Mr Francis’s inability to specify in scientific terms how he had made allowances for an imperfect image rendered his opinion unreliable or unsafe. He and the jury were viewing moving and still images. Mr Francis was showing to the jury the images in which he saw features of gait and either those features could be seen by the jury or they could not. The jury was directed that they could act on the presence of features only if they could observe the features for themselves. Mr Francis was saying that he had taken account of the imperfection in the image before declaring his identification of a feature. He showed the jury the image on which he relied to make the identification. He was not saying that, although the feature might not be seen by the jury, he, relying on his expertise, was sure it was present. In any instance in which it was argued that the quality of the image was insufficient to be sure that the feature was present the jury had the means to make the assessment for themselves with the assistance of the evidence of Mr Blake and the cross-examination of Mr Francis by Mr Birnbaum QC. The judge was in a good position to assess the safety of the evidence since he saw exactly what the jury saw. It is our view that, with appropriate directions from the judge, the jury could follow the evidence, evaluate its cogency, and make their own decision whether the features demonstrated were present in each of the recordings. In reaching this conclusion we have taken account of the fact that at the close of the prosecution case there had not yet been an acceptance that Suspect 2 in the benchmark material was one and the same person. Finally, we do not agree that Mr Francis should not have been permitted to refer to the frequency with which the features or abnormalities he found in the recordings occurred in the course of his clinical practice. It was for the jury to evaluate Mr Francis’ evidence in the light of the criticisms levelled at him. 75. For these reasons we reject the submission that the judge should have withdrawn the case from the jury at the close of the prosecution case. We accept that Mr Birnbaum QC had in the course of cross-examination raised important issues for the jury’s consideration as to whether the features Mr Francis had identified were clearly demonstrated. The jury had been provided with the tools with which to make that assessment: in the case of each image on which Mr Francis relied they had their attention drawn to the factors relevant to it, in particular to the quality of the images and the time lapse by which they were recorded. Mr Francis was closely cross-examined on each feature and each significant image. We agree with the trial judge that the evidence was fit to be left to the jury. 76. We have already made extensive reference to the judge’s treatment of the evidence in his summing up. The judge took care to ensure that the jury was engaged in the task of judging for themselves whether the distinguishing features of gait were present in the images and did not just take Mr Francis’ word for it. The judge also ensured that the jury did not make unwarranted assumptions about the probative value of Mr Francis’ evidence. We do not agree that Mr Francis’ references to his own experience should have been withdrawn from the jury’s consideration. The judge’s responsibility was to ensure that the jury did not misuse that evidence and the judge gave them the appropriate directions. At the conclusion of his summing up he returned to the evaluation of the evidence and reminded the jury of the submissions made by Mr Birnbaum, including that Mr Francis’ references to the frequency of features of gait applied not to the population in general but to those whom Mr Francis had examined in the course of his clinical career. 77. Comparison evidence founded upon the science and expertise of podiatry is, we recognise, a technique still in its infancy. The articles to which Mr Birnbaum has helpfully drawn our attention show that research conducted with a view to establishing nationally accepted standards continues to take place. It remains, in our view, a technique that requires careful scrutiny before expert evidence is admitted and, if admitted, rigorous examination of the quality of the images and the opinion expressed by the expert. In the present case HHJ Wide QC ensured that, once admitted, the evidence was subjected to the scrutiny required. We reject the submission that the evidence was so flawed that the jury should not have been permitted to act upon it. The jury was entitled to conclude that the prosecution had proved that Suspect 2 was the appellant Hashi. Conclusion 78. In our judgment none of the grounds advanced is made out. The verdicts of the jury were safe and the appeals against conviction are dismissed. Appeal against sentence (McSween) 79. The judge identified serious aggravating features of the offences. There was careful planning and premeditation. The attack was made by a group of young men on two people. The group had equipped themselves with knives and sought out their victims. The attack occurred in a crowded public place causing distress to onlookers, including children. The starting point for the minimum term for such offences by an adult was, under schedule 21 paragraph 5A to the Criminal Justice Act 2003, 25 years. The judge expressed the view that had it not been for the young ages of the defendants the aggravating factors would have resulted in starting points of even greater length. By paragraph 7, in the case of a defendant who was under the age of 18 at the time of the murder, the starting point, subject to aggravating and mitigating factors, is one of 12 years. Mr Grunwald QC argued that a minimum term of 19 years (by comparison with that of 22 years imposed on the other three offenders) was manifestly excessive in itself and, furthermore, failed to give sufficient recognition of the young age of the appellant McSween. 80. We do not know to what extent the judge reduced the minimum term to reflect the comparatively young ages of Hutton, Ferdinand and Hashi but in their cases the minimum term was set at just over three quarters of the statutory starting point. The question we have to consider is whether an increase of seven years over the 12 year statutory starting point in McSween’s case was excessive. In our view it is. McSween was 18 months – 2 years younger than his co-accused at the time of the offences. A difference of this magnitude in the case of teenagers is, in our view, significant. In our judgment, the proportionate minimum term in McSween’s case, when compared with the other offenders, was one of 17 years. We shall grant leave, quash the minimum term upon count 1 and substitute a minimum term of 17 years.

```yaml citation: '[2014] EWCA Crim 1243' date: '2012-04-26' judges: - LORD JUSTICE PITCHFORD - MRS JUSTICE NICOLA DAVIES DBE ```

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

Case No: 200500203 D5, 200500235 D5, 200500238 D5, 200500239 D5, 200500241 D5, 200500243 D5, 200500244 D5, 200500245 D5 & 200500246 D5 Neutral Citation Number: [2005] EWCA Crim 887 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH HIS HONOUR JUDGE JARVIS No: T20047028 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 22 April 2005 Before : LORD JUSTICE AULD MR JUSTICE BEATSON and MR JUSTICE WAKERLEY - - - - - - - - - - - - - - - - - - - - - INTERLOCUTORY APPLICATION UNDER 5.35 CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 Between: REGINA -and- 1) G S 2) T 3) D S 4) B R 5) G C 6) P C 7) W 8) T 9) O R - - - - - - - - - - - - - - - - - - - - - (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 David Gibson-Lee for the 1 st Appellant Mr Richard Bendall for the 2 nd – 9 th Appellants Mr Robert Davies & Mr Martin Lanchester for the Prosecution - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Auld : 1. When the Court heard these appeals of GS and his eight co-appellants on 21 st January 2005 they were facing trial in the Crown Court at Bournemouth on charges of conspiracy to supply Class A and Class B/C drugs. The prosecution sought to adduce evidence of covertly recorded conversations of the appellants obtained pursuant to the provisions for intrusive surveillance in Part II of the Regulation of Investigatory Powers Act 2000 (“ the 2000 Act ”). 2. In a preparatory hearing held by His Honour Judge Jarvis on 12 th January 2005 under section 30 of the Criminal Procedure and Investigation Act 1996 (“the 1996 Act”), he held, on a defence application to stay the proceedings for abuse of process and/or, in the absence of disclosure of certain material, to exclude the covertly recorded evidence as unfair under section 78 of the Police and Criminal Evidence Act 1984 (“ PACE ”): i) that, having regard to the evidence put before the court of the Surveillance Commissioners’ approvals of authorisations for obtaining such evidence, given pursuant to Part II of the 2000 Act , the recorded evidence should be admitted, subject to the prosecution reviewing matters with a view to possible further disclosure; and ii) that, for the purpose of a defence application to exclude such evidence under section 78 of PACE , the defence was not entitled to see the authorisations or any of the other underlying material placed before the Surveillance Commissioners for the purpose of obtaining their approvals. 3. The appellants, with the leave of the Judge, under section 35(1) of the 1996 Act, appealed against those rulings. This Court, having dismissed their appeals, now gives its reasons for doing so. The scheme of the legislation 4. The scheme of the legislation has its starting point in Part III of the Police Act 1997 , which provided, in addition to existing common law and statutory powers of the police, a scheme of authorisation to them and other law enforcement agencies, to effect covert entry upon and interference with property or with wireless telegraphy. It empowers “authorising officers”, namely Chief Constables and others holding appointments of similar standing, to authorise such covert surveillance subject, in the more intrusive forms, to approval in advance by independent Commissioners appointed under the Act, whose decisions, by section 91(10) of the Act “shall not be subject to appeal or liable to be questioned in any court”. In various respects its provisions have been supplemented or overtaken by the provisions of Part II of the 2000 Act , to which the ouster provision of section 91(10) also applies. 5. The intention of the 2000 Act was to provide a comprehensive regulatory structure covering interception of communications, surveillance and associated activities. It replaced the statutory regime in the Interception of Communications Act 1985 , but not those in Part III of the 1997 Act or the Intelligence Services Act 1994 , although it amends both of those Acts. Its purpose is, so far as possible, to achieve a degree of uniformity in relation to the authorisation as well as the availability of protections in respect of the interception of confidential communications, in particular the interception of telephone communications, whether by public or private systems and various other forms of covert surveillance which involve interference with private life under Article 8 ECHR. 6. Thus, the 2000 Act distinguishes between “directed” and “intrusive” surveillance, and, as will be seen, provides greater protection to the suspect in the case of the latter. Directed surveillance, for which section 26(2) provides, is covert investigation undertaken in relation to an investigation or a specific operation likely to result in the obtaining of private information about a person. Intrusive surveillance, for which section 26(3) provides, is covert surveillance in relation to anything taking place on residential premises or in any private vehicle, and involves the presence of an individual on the premises or in the vehicle or carried out by means of a surveillance device. By section 27(1) , all surveillance for which Part II provides is “lawful for all purposes” provided it is authorised under the Act and undertaken in accordance with that authorisation. Section 27 (1) reads: “Conduct to which this Part applies shall be lawful for all purposes if – (a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and (b) his conduct is in accordance with that authorisation.” 7. Section 32(1) -(4) of the 2000 Act empowers the Home Secretary and “Senior Authorising Officers”, namely chief constables and the like, to grant authorisations for the carrying out of intrusive surveillance. They may only do so if they believe that it is necessary in various interests, including “the purpose of preventing or detecting serious crime”, and that it is proportionate to what is sought to be achieved by carrying it out. In determining the necessity for exercise of the power the decision maker is required to consider whether the information sought could reasonably be obtained by other means. 8. However, by sections 35 and 36 of the 2000 Act , such authorisation and its taking effect are subject to notification, providing information to, and “scrutiny” and written approval by, an independent Surveillance Commissioner appointed under the Act, who is required to be a person of considerable experience and standing, who holds, or who has held, high judicial office. Such approval is to be given in advance save where the authorising officer believes the case is one of urgency. By section 37 , a Surveillance Commissioner may quash an authorisation approved by him and/or order destruction of information obtained by virtue of it if he is satisfied that when or since he granted approval the requirements for its grant under section 32 were no longer satisfied. By section 40 of the Act all police and members other enforcement agencies have a statutory duty to comply with any request of a Surveillance Commissioner for documents or information required by him to enable him to carry out his functions. 9. By section 38 of the 2000 Act , there is a provision for a Senior Authorising Officer to appeal to a Chief Surveillance Commissioner against a Surveillance Commissioner’s refusal to approve, or quashing of, an authorisation. Although, as the provision makes plain, this is not an appellate machinery available to a suspect to challenge the making and/or approval of an authorisation, it does provide yet another higher level of protection to him in the event of the Chief Surveillance Commissioner allowing the Senior Authorising Officer’s appeal. 10. Finally, by section 65(4) and (5) of the 2000 Act there have been introduced for the 1997 Act and 2000 Act a new complaints Tribunal, the President of which must be a person who holds or who has held high judicial office, for those aggrieved by decisions made under their respective procedures, including that in relation to conduct to which Part II of the 2000 Act applies. It provides in sub-section (4): “The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any [such] conduct … which he believes: (a) to have taken place in relation to him, to any of his property, to any communications sent by or to him, or intended for him, or to his use of any postal service, telecommunication service or telecommunication system; (b) and to have taken place in challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services” The Act also gives the Tribunal extensive powers of investigation and remedy including the quashing or cancelling of any warrant or authorisation, the destruction of any records, compensation and any other such order it thinks fit. 11. Thus, as Judge Jarvis noted in his judgment in this case, the law has erected a number of significant thresholds to be surmounted by authorities before they may employ the 2000 Act as a means of intrusion on an individual’s private life, namely: satisfaction of a Senior Authorising Officer and written approval, normally in advance, of an independent Surveillance Commissioner and sometimes, in the event of an appeal under section 38 , the Chief Surveillance Commissioner; and if complaint is made by a suspect or other aggrieved person, the scrutiny of the Tribunal under sections 65 to 70, that: 1) the authorisation is necessary (in this case for preventing or detecting serious crime); 2) there is no reasonable alternative means of obtaining the information sought; and 3) the nature and extent of the surveillance is proportionate to what is sought to achieve by its use. It is against the backcloth of those thresholds or stringent conditions, coupled with Codes of Practice issued by the Home Secretary pursuant to section 71 of the Act, that the intent of section 91(10) of the 1997 Act in ousting any right of appeal or questioning “in any court” in relation to such approvals should be considered. 12. Before turning to the facts of the case, it should be noted that none of these provisions purport to deal with admissibility of evidence lawfully obtained under them, as observed by Potter LJ, giving the judgment of the Court in R v SL & Ors [2001] EWCA Crim 1829 , at para 68, and Rose LJ, giving the judgment of the Court in R v Hardy & Hardy [2002] EWCA Crim 3012 , at paras 18 and 19. They are relevant only to the lawfulness of the evidence obtained. Whether or not lawfully obtained, it still remains a matter for the court to decide under section 78 of PACE , whether it would be fair to admit it into evidence. As the editors of the current edition of Archbold put it, at paragraph 15-256, citing Lord Nolan in R v Khan (Sultan) [1997] AC 558 , at 582, “It is the effect of the behaviour of the police on the fairness of the proceedings that is important, rather than the illegality of their conduct”. The facts of the case giving rise to this appeal 13. A significant part of the prosecution case against these nine appellants consisted of covert recordings made by the police at the home of the first three of them, GS, CT and DS, of conversations about drug trafficking with various of the other six appellants over a period of five months. At the preparatory hearing the prosecution sought to establish the lawfulness of that intrusive surveillance by producing the Surveillance Commissioners’ written approvals and renewals of the relevant authorisations. 14. Defence counsel asked the Judge to rule that the prosecution should disclose the material placed before the Surveillance Commissioners when seeking approval and renewals of the authorisations. They accepted that such material, if disclosed, might need to be edited for public interest immunity purposes, but submitted that, without it, they could not properly formulate any argument that might entitle them to exclusion of the recordings under section 78 of PACE . 15. More precisely, defence counsel sought, seemingly as part of what they regarded as prosecution primary disclosure, disclosure of all documentation underlying those approvals, in particular, details and copies of the applications for authorisation, the authorisations themselves and the material put before the Surveillance Commissioners when seeking and obtaining their approvals. Their object was to examine whether the procedures in the 2000 Act had been followed and the relevant statutory criteria satisfied as a step on the way to making a section 78 application for exclusion of the recorded conversations. In the alternative, they asked the Judge to look at the documentation as undisclosed material of which they had requested disclosure under section 8 of the 1996 Act, with a view to him forming a view as to abuse of process or as to whether its non-disclosure to the defence would render the admission of the surveillance evidence unfair under section 78 of PACE . 16. In seeking that material, defence counsel, save we believe in the case of the appellant, GS (see paragraph 24 below), did not point to any particular aspects of the authorisation procedure giving them cause for concern. It was essentially a “fishing expedition” to enable them to discover whether they might have a case for seeking exclusion of the recorded conversations as unfair, by reason of unlawfulness of the authorisation procedures adopted or as to compliance with them, or otherwise under section 78 of PACE . 17. The prosecution’s stance was: 1) to rely upon the ouster provision in section 91(10) of the 1997 Act ; 2) to assert that it was no part of the prosecution’s duty to put before the Judge with a view to its possible disclosure material that it had formed the view it had no duty to disclose and that, in any event, was protected by public interest immunity that could be prejudicial to the defence for the Judge to read; and 3) to maintain that production of the information sought as to compliance with the authorisation and approval procedures in the 2000 Act would turn into an inquiry into the nature and veracity of intelligence on which those authorisations and approvals had been obtained, information ordinarily non-disclosable on public interest immunity grounds. The prosecution conceded, however, that such issues aside, it was still open to the defence to argue that lawfully obtained evidence should be excluded as unfair under section 78 on other grounds, if there were any. 18. The Judge refused the defence applications, holding that it was for the Surveillance Commissioners, acting under their statutory powers, to form a view as to the propriety of the information and procedures giving rise to the authorisations. He said that he was satisfied by the approvals produced to him, that they had done that. And, as to disclosure of that underlying information or any other material relating to it, he said that it was for the prosecution to determine whether it had any duty of disclosure. 19. More particularly, he held: i) that the 2000 Act , in particular sections 32 and 36, was intended to, and does, provide a rigorous and high level machinery for securing that intrusive means of this sort are legally permissible in the interests of national security and for the offences alleged, namely “serious crime”, where the evidence could not reasonably be obtained by other means, and where the intrusive surveillance for which authorisation is sought is proportionate. ii) that section 91(10) of the 1997 Act , in its application to the 2000 Act , renders Surveillance Commissioners’ approvals of Chief Constables’ authorisations under Act conclusive as to the lawfulness of the intrusive means of obtaining the evidence, in that it provides that their decisions “shall not be subject to appeal or liable to be questioned in any court”. iii) that the effect of those provisions is to substitute the machinery of the 2000 Act , culminating in Surveillance Commissioners’ approvals of Chief Constables’ authorisations, for the responsibility of the Court for determining whether such evidence was lawfully obtained. iv) that, quite separately, the prosecution must consider in relation to the intrusively obtained evidence whether it has any un-used disclosable material and, if so and subject to any public interest immunity interest, disclose it to the defence; and v) that he was satisfied from the Surveillance Commissioners’ approvals put before him that the intrusively obtained evidence had been obtained in accordance with the requirements of the 2000 Act , and that, therefore, there had been no abuse of process or, on that account, any prejudice to the fairness of the trial. The issues raised by the appeal 20. The points of law upon which the Single Judge gave leave to appeal are: i) whether, in determining an application to exclude covertly recorded evidence the trial judge should proceed upon the basis that, if appropriate procedural steps have been followed under the 1997 and/or 2000 Act, the evidence should be admitted, subject only to the discharge by prosecution counsel of his duty to review material for the purpose of disclosure; ii) alternatively, whether the trial judge is required by section 78 of PACE to consider all the circumstances, including those in which the evidence was obtained, and, if so, whether the defence are entitled to disclosure of all material placed before the Surveillance Commissioners (subject to necessary editing) in order to enable them adequately to challenge where appropriate the fairness of admitting the evidence. 21. All the appellants argue that a judge should not abdicate to the Surveillance Commissioner or the prosecution the responsibility of deciding the admissibility of evidence, and that the defence should, subject to any public interest immunity claim by the prosecution, have access to the material placed before the Surveillance Commissioner, as well as to his approval of the authorisation, to enable them to make informed submissions on whether the statutory requirements for it had been complied with and/or as to the fairness of admitting the evidence under section 78 of PACE . 22. Mr Richard Bendall, on behalf of the 2 nd – 9 th appellants PC and GC, whose submissions before the Judge and before this Court were adopted by counsel for the other appellants advanced the following propositions: i) that the Judge wrongly decided that the provisions of the 1997 and 2000 Acts, in particular section 91(10) of the 1997 Act , had effect so as to relieve him of responsibility for examining whether he statutory procedures and requirements of those Acts had been followed and/or whether, as to the manner in which they had been followed, it was fair under section 78 to admit the evidence. ii) that the effect of section 91(10) was simply to prevent any legal cha1lenge to the authorities, for example, by a civil claim against a Chief Constable or Surveillance Commissioner, and that it has no effect upon what use can be made of the intrusively obtained material in a criminal trial. iii) that, as a corollary of (i), the defence should have full disclosure of the underlying material to enable their counsel to make informed decisions on both the legality of that material and as to the fairness of admitting it into evidence; iv) that the guidance applicable to the disclosure of ordinary un-used material, as set out by the House of Lords in R v H & C [2004] 2 A.C. 134 , cannot be fairly applied in these circumstances where the information in question discloses the circumstances in which material that the prosecution do wish to use was obtained - they relied instead on the approach of the House in R v P [2002] 1 A.C. 146 . v) that, whether or not that information is considered by the prosecution possibly to undermine its case or assist the defence, in fairness it still needs to be disclosed to enable the defence properly to argue their case; and vi) that this is not so much a question of disclosure; it is one of admissibility, for which the Surveillance Commissioners are not responsible. 23. In support of those propositions, Mr Bendall relied upon: 1) the first question posed by Lord Bingham of Cornhill at paragraph 36 of his speech in R v H & C, namely whether the court had considered in detail the material that the prosecution seek to withhold; 2) the following words of Lord Hobhouse of Woodborough in the earlier case of R v P , at 161B: “It should be noted that the … [the European Court of Justice in Schenk v Switzerland 13 EHRR 242 , at paras. 38-40] again emphasised that the defendant is not entitled to have the unlawfully obtained evidence excluded simply because it has been so obtained. What he is entitled to is an opportunity to challenge its use and admission in evidence and a judicial assessment of the effect of its admission upon the fairness of the trial as provided by section 78 .” and 3) the approach of this Court to similar concerns in R v SL [2001] EWCA Crim 1829 , which concerned the less rigorous provisions of the 1997 Act , in which the prosecution disclosed a large volume of edited documents, consisting of the applications for authorisation, which set out the grounds for them, as well as the resultant authorisations, thus enabling cross-examination as to whether the relevant statutory criteria had been considered. 24. The first appellant, GS, put at the forefront of his appeal the ground that the Judge should himself have reviewed the material provided to the Surveillance Commissioners with a view to deciding whether, under section 78 of PACE , to admit the intrusively obtained evidence. His main complaint, as presented by Mr David Gibson-Lee, was that the Chief Constable had authorised and the Surveillance Commissioner had approved the authorisation in respect of GS at a time when they knew, or should have known, that he could not be present at the premises the subject of the intrusive surveillance, because he was in prison. If, for the purpose of the appeal, we assume that assertion to be correct, we cannot see upon what basis it could justify a section 78 application on behalf of GS, even if it were asserted on his behalf – which it was not – that the prosecution had attributed to GS the voice of another in the recorded conversations. 25. The prosecution’s response to these submissions was the same as that of the Judge to the defence applications, namely: i) that the lawfulness of the means employed to obtain the evidence in question was conclusively established by documentary approval of the Surveillance Commissioners of the Chief Constable’s authorisations; and ii) that, in the circumstances and bearing in mind the guidance of the House of Lords in R v H & C as to disclosure of un-used material, no further disclosure was required, given the prosecution’s assurance that it had complied with its obligation of disclosure under the 1996 Act and the Attorney-General’s Guidelines of 29 th November 2000. 26. Mr Robert Davies, on behalf of the prosecution, drew attention to a similar decision and reasoning of His Honour Judge Loraine-Smith in a recent trial in the Crown Court at Southwark, R v C-D (22 nd December 2004). He relied, in particular, on what he described as “the unique nature” of the rigorous scrutiny provided by both Acts at each stage of any proposed or current investigation involving the use of covert “bugging” techniques within a suspect’s home. He submitted that the combination of such scrutiny and safeguards, coupled with the ouster provision in section 91(10) of the 1997 Act make plain the intention of Parliament that the courts should not re-visit the legality of the authorisation through an examination of its process. Conclusion 27. The statutory backcloth, now of both the 1997 and 2000 Acts, is one of provision for independent verification at very high “judicial” level that intrusive surveillance authorisations have at all times been lawful, in particular in their compliance with the requirements as to necessity and proportionality in section 36 of the 2000 Act . In addition, as we have noted, there is now a high level Tribunal to inquire into complaints by those subjected to intrusive surveillance who take issue with a Surveillance Commissioner’s approval, the jurisdiction of which covers both the legality of the authorisation and whether the surveillance was conducted in accordance with the authorisation. It is plain that section 91(10) of the 1997 Act , in the context of the 2000 Act , is designed to prevent re-litigation in the course of a criminal trial of the entire protective regime of high level authorisation and approval of it. 28. Whilst there is jurisprudential support for the proposition that the Acts are concerned with lawfulness, not admissibility, of information obtained by surveillance covered by their provisions, it is plain from the 2000 Act , section 27 in particular, that the protection given by section 91(10) goes beyond protecting Chief Officers and Surveillance Commissioners from civil proceedings for claimed illegality of authorisations in the event of approved authorisations not complying with the statutory criteria. Section 27 , to which His Honour Judge Loraine-Smith drew attention in his ruling against disclosure of underlying material in R v C-D, is important in its provision that the conduct covered by the authorisations is “lawful for all purposes”. It follows that the words of section 91(10) , as applied to Surveillance Commissioners under the 2000 Act , that their decisions “shall not be subject to appeal or liable to be questioned in any court” [the Court’s emphases] make the ouster equally applicable to criminal proceedings in respect of which the surveillance authorised is brought into question as it is to immunity from civil proceedings. That certainly seems to have been the approach of Potter LJ and Rose V-P in R v SL & Ors and R v Hardy & Hardy respectively. 29. In R v SL, which concerned the 1997 Act regime, a good deal of information was disclosed and put before the Court as to the content of the authorisations, including specific consideration given to the Act’s criteria, with no doubt, as Potter LJ said, at paragraph 87, the remarks of Lord Hobhouse in R v P “in mind”. However, it should be noted that R v P related to an overseas intercept and to an earlier Act (the Interception of Communications Act 1985) . It does not follow that such a course is appropriate under the more rigorous regime provided by the 2000 Act , having regard to the fact as Potter LJ pointed out in R v SL, at paragraphs 104 and 105, that, even though the evidence may have been obtained unlawfully, that does not in itself render its admission unfair under section 78 of PACE : “104 It has been vigorously argued in the course of this appeal that, because under English law the admissibility of evidence in a criminal trial does not depend upon whether or not it has been obtained by lawful means, and because in an intrusive surveillance case, a defendant will rarely be able to mount an argument of procedural unfairness based simply upon a breach of Article 8, the effect of the decision in R –v- P is , in most trials, both to render Article 8 of no practical significance and s.78 of no practical utility, in respect of the potential exclusion of probe evidence illegally obtained in breach of a defendant’s right to privacy provided for in Article 8. That may well be the position in most cases. That is not a surprising conclusion because, as Lord Hobhouse explained, Article 8 is not concerned with questions as to the admissibility of evidence. In a case where there has been a flagrant non-use or misuse of the authorisation procedures laid down there may well be grounds for a stay on grounds of abuse of process and, in any event, a demonstration of such executive lawlessness will also require to be taken into consideration on the issue of fairness. Lord Hobhouse made clear that, when exercising his discretion under section 78 , the judge must have regard to all the circumstances in which the evidence was obtained. However, since, as again Lord Hobhouse pointed out, s. 78 is concerned with the fairness of the trial process, the fact that evidence has been obtained unlawfully is unlikely in itself to weigh very heavily in the scales. It is however impossible to foresee all situations and s.78 is available as a ‘safety net’ in cases engaging Article 8, as is plainly envisaged in both the Strasbourg and English jurisprudence. In cases such as the present, however, the defendant is unlikely to be disadvantaged in dealing with the intercept material. 105. Finally, it has been urged upon us that, unless there is exclusion of such evidence under s. 78, the criminal courts are unable to grant an effective remedy to a defendant in respect of the breach of privacy involved. If, by reference to ‘an effective remedy’ is meant a remedy which excludes the cogent evidence of criminality which tape recorded conversation of a defendant may provide, that is correct. It is the essential function of a criminal court in this country to provide a fair trial on the basis of the evidence available (Article 6 considerations) rather than to provide remedies for breaches of Article 8. In English law, the effective remedy intended to be available is that provided under the 1997 Act as subsequently amended. Like the judge we would hold that, even if the arguments as to ‘form not substance’ and ‘proportionality’ demonstrated a breach of Article 8 in respect of the appellant’s rights to privacy (which in our view they do not), a fair trial is nonetheless possible.” See also R v Hardy & Hardy, a case of directed surveillance, not involving a Surveillance Commissioner, per Rose V-P at paras. 18 and 19. 30. Potter LJ, by his earlier references in paragraphs 5 and 6 of his judgment in R v SL, to section 91(10) of the 1997 Act and its application to the 2000 Act regime, showed that he was aware of its impact as to the lawfulness of obtaining such intrusive evidence. However, as is plain from his discussion in paragraphs 104 and 105 of his judgment (paragraph 29 above), he left open some necessarily ill-defined role for section 78 on the issue of admissibility. He suggested that the matter might be different where there has been a flagrant non-use or mis-use of the authorisation procedures. However, the scope for recourse to section 78 even in such circumstances is likely to be rare and the boundary between legality and admissibility ill-defined, for it is that sort of behaviour that the Surveillance Commissioners are there to prevent. 31. A possible example of such recourse to section 78 in the case of 1997 Act surveillance evidence is R v Templar [2003] EWCA Crim 3186 , in which the prosecution, on an application based on defence allegations of manipulation of the recorded material, declined to disclose the underlying material on the ground of public interest immunity. The trial judge and the Court of Appeal of Appeal looked at the material, and held that the prosecution was right to withhold disclosure. Latham LJ, giving the judgment of the Court, adopting prosecuting counsel’s concession that section 91(10) did not preclude such an inquiry, said, at paragraph 14: “It seems to us that this sub-section does not preclude, in itself, …an inquiry into the question of whether or not the relevant decision of the Commissioner has been obtained by deception or by some other reprehensible conduct amounting to an abuse of process, which could found an argument under s. 78 of the Police and Criminal Evidence Act to the effect that evidence so obtained should be excluded. ” 32. However, as Judge Loraine-Smith asked in R v C-D , who is to conduct that inquiry? We agree with him that Section 27 of the 2000 Act and section 91(10) of the 1997 Act as applied to the 2000 Act clearly preclude an inquiry by a criminal court into the lawfulness of an approved authorisation. Lawfulness or otherwise in that respect may, but does not necessarily have an effect on any decision as to admissibility under section 78 that the Court may be called upon to make. It is no part of a Surveillance Commissioner’s or of a section 65 Tribunal’s function to determine admissibility. So much is implicitly acknowledged in section 37(7) of the 2000 Act , in its prohibition of an order for destruction of records, following a quashing of an authorisation, pending criminal or civil proceedings. Equally, it is not open to the criminal court to embark upon an examination of material underlying an approved authorisation, to determine whether the correct statutory criteria have been correctly taken into account and so on, all of which go to the issue of lawfulness. If there are other aspects – which the courts have, so far, found somewhat elusive to identify - upon which section 78 considerations of fairness may be called into play, they are not to be found by looking behind the decisions of the Chief Officers and Surveillance Commissioners to test their lawfulness. 33. The answer, it seems to us, is that identified by Judge Loraine-Smith, by reference to the reasoning of the House of Lords in R v H & C , especially that of Lord Bingham of Cornhill, namely the responsibility of prosecuting counsel to ensure proper disclosure. Lord Bingham said this at paragraph 35: “If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties’ respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court. Only in true borderline cases should the prosecution seek a judicial ruling on the disclosability of material in its hands. If the material contains information which the prosecution would prefer that the defendant did not have, on forensic as opposed to public interest grounds, that will suggest that the material is disclosable. If the disclosure test is faithfully applied, the occasions on which a judge will obliged to recuse himself because he has been privately shown material damning to the defendant will, as the Court of Appeal envisaged … be very exceptional indeed.” [the Court’s emphasis] As Judge Loraine-Smith observed, the more relaxed approach in R v Templar in which the trial judge and the Court of Appeal looked at the underlying material, was, of course, before those observations of Lord Bingham, in which he clearly had in mind the disclosure provisions of the 1996 Act. In addition, in R v Templar, the trial judge and the Court proceeded on the Crown concession, without argument to the contrary, that they should look at the underlying material. Although Mr Bendall emphasised that, in considering section 78 , a court is concerned with admissibility, in respect of which both parties should have access to the material in question, rather than with disclosability, the latter is often directed to the same end, namely of making available to the defence material that may, whether by use as evidence or of identification of other evidence or as material for cross-examination, undermine the prosecution case or assist the defence. 34. As we have said, in the present case, the various appellants made no allegations nor expressed any clear and cogent reasons to support section 78 applications in respect of the covertly recorded conversations, merely suggestions that if they had access to the documentation underlying the Surveillance Commissioners’ approvals of the authorisations for obtaining them, they might find something to support their applications. This was clearly not a “border-line” or an “exceptional” case for disclosure of material of the sort envisaged by Lord Bingham in R v H & C. On the contrary, it was a case in which, as Mr Davies has informed the Court, one in which the public interest immunity material, if disclosed to the Judge could have potentially damaged the standing of the defendants in the eyes of the Judge. 35. The normal starting and stopping point for the prosecution when seeking to rely upon the provisions of sections 32 -40 of the 2000 Act in relation to intrusive surveillance is to produce to the trial judge the Surveillance Commissioner’s signed approval forms. An alternative would be for the Chief Officer, who had authorised and obtained approval of the surveillance pursuant to Part II of the 2000 Act , to give evidence to that effect, producing the approval forms if his evidence was challenged. Such evidence should be adequate for the purpose of the Act and, given the specific criteria set out in section 36 of it, including those as to necessity and proportionality, sufficient also for the purposes of Article 6, ECHR (and for that matter, Article 8, with which the criminal courts are not concerned). Once it has been produced, defence counsel are not entitled to reopen the lawfulness of the authorisation as a means of, or as a route to, ventilating its admissibility under section 78 of PACE or otherwise. 36. Accordingly, in our view, the Judge correctly relied upon the approval forms signed by the Surveillance Commissioners placed before him by the prosecution as a means of satisfying himself that the intrusive surveillance in this case had been lawfully authorised. He was not required to accede to the defence requests for disclosure or access to the material underlying those approvals or, in the circumstances, to examine it himself. In particular, it was not – particularly in the absence of any clear cause for concern identified by the defence - a border-line or exceptional case of the sort envisaged by Lord Bingham in R v H & C so as require him to oversee, by viewing the underlying material for himself, the adequacy of the prosecutor’s discharge of his responsibility for disclosure. _______________

```yaml citation: '[2005] EWCA Crim 887' date: '2005-04-22' judges: - LORD JUSTICE AULD - MR JUSTICE WAKERLEY ```

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Neutral Citation Number: [2009] EWCA Crim 1812 Case No. 200806319/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 19th May 2009 B e f o r e : LORD JUSTICE DYSON MR JUSTICE OUSELEY THE RECORDER OF KINGSTON-UPON-HULL (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v DAVID BROADY - - - - - - - - - - - - - - - - - - - - - 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 Leslie QC appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE OUSELEY: This is a renewed application for leave to appeal against sentence. 2. The applicant was convicted of manslaughter, which was treated as involuntary manslaughter, on 21st October 2008 and on 11th November 2008 His Honour Judge Gee at Manchester sentenced him to 7 years' imprisonment. 3. The applicant was 71 and it is principally on that basis allied to specific facts in the case upon which Mr Leslie QC who appears for him relies. 4. The deceased, a Mr Douglas, was 25 years old at the time of his death. He was a drug user. He also drank. On 25th February 2008, when he met his death, his father had twice provided him with money which he spent on drink for himself and a friend called Olsen. 5. At 7.00 pm the applicant was out walking when he met an acquaintance, Mr Forth, at the junction of Canal Street and Minshull Street in Manchester. They had been talking together for a while when Douglas approached them. They ignored Douglas, who in an aggressive manner said that it was rude of them to ignore him. They were unknown to him. Mr Forth thought that the tone adopted by Douglas was rather aggressive and he and the applicant moved away a short distance down the road. They both were aware of the aggression and threats from Mr Douglas, and the Crown accepted that the instigator of the violence was indeed Mr Douglas, who was present with his friend. 6. After they had moved away Douglas ran towards the applicant with his hands raised. Mr Forth thought that he was going to hit the applicant, as indeed did the applicant himself. The applicant was, however, carrying a knife. This was a knife which the judge concluded had an open blade. The applicant pulled it out of his coat pocket and struck downwards at Douglas' neck with it. He and Mr Forth then left the scene. The applicant disposed of the knife and although he told the police where he had disposed of it, it was never recovered. He then went home, packed a bag and left. 7. Attempts to save Douglas' life by the emergency services failed. Death was caused by the loss of blood from the wound to the right of the neck, which cut the right jugular vein and penetrated the lung to a depth to 6 to 8 centimetres. 8. The doctors's opinion was that the stabbing motion had been delivered with a significant over the arm downwards motion with moderate force. Douglas had consumed alcohol to about two-and-a-half times the legal limit for driving. 9. The applicant, aware then that police were looking for him, made arrangements to be interviewed in a neutral venue. 10. The applicant contended at trial that he had acted in self-defence but that defence was rejected. He was, however, acquitted of murder and was sentenced on the basis that this was an involuntary manslaughter in which he had lashed out, stabbed the victim, realising that doing so would expose the victim to a risk of at least some harm. 11. The applicant was treated as a man of previous good character. He had indeed in many respects a positive good character. He was aged 71 and was not frail or timid and was fit for his age. The judge accepted, albeit with reluctance, that the applicant carried a knife as a result of a street incident some 5 or 6 years before but, as we have said, did not accept that it was a closed knife such as a penknife which was removed from his pocket. 12. The judge in sentencing made it clear that he was making an allowance of some magnitude for the age of the applicant and had he been a younger man, the sentence would have been considerably higher. 13. Mr Leslie, on his behalf, in addition to drawing our attention to authorities which we have read, emphasises the age and good character of the applicant and emphasises as well that this was a man, with a friend, who was facing aggression from two men and they had already, on two occasions, sought to disengage themselves. However, the fact is that the applicant was indeed carrying an open knife for possible use if circumstances, in his view, warranted that. That was his deliberate choice. He used it, it was said, in self-defence but the jury rejected that defence. Therefore it must be treated as an excessive act undertaken by that man, notwithstanding his circumstances. The carrying of a knife without reasonable excuse is, as the judge said in his sentencing remarks, a crime committed far too often, even if concealed and carried from a misguided sense that its use in possible self-defence might arise. It takes but a moment of irritation or anger or misjudgment before the weapon is produced and used with unintended and fatal consequences. It may well be that the victim was a thoroughly threatening and aggressive nuisance but, in the circumstances, we do not consider that the sentence of 7 years' imprisonment can arguably be characterised as manifestly excessive. For those reasons this application is dismissed.

```yaml citation: '[2009] EWCA Crim 1812' date: '2009-05-19' judges: - LORD JUSTICE DYSON - MR JUSTICE OUSELEY ```

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 409 No: 201803482/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 28 February 2019 B e f o r e : LORD JUSTICE DAVIS MR JUSTICE KING HIS HONOUR JUDGE MARTIN EDMUNDS QC (Sitting as a Judge of the CACD) R E G I N A v CONOR THOMAS DOBSON 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 M Kimsey appeared on behalf of the Appellant Mr D Sullivan appeared on behalf of the Crown J U D G M E N T (As Approved by the Court) 1. LORD JUSTICE DAVIS: This is an appeal, brought by leave of single judge, against sentence. The appellant is Conor Dobson, now aged 24. On 13 April 2018, in the Crown Court at Lewes, the appellant pleaded guilty to a count of manslaughter and to a count of burglary. On 6 August 2018 he was sentenced in the following way. On the count of manslaughter, he was sentenced to an extended sentence of 18 years, comprising a custodial term of 15 years and an extension period of 3 years. On the count of burglary, he was sentenced to a term of 45 months' imprisonment to run concurrently. The total sentence therefore was an extended sentence of 18 years, comprising a custodial term of 15 years and with an extended licence period of 3 years. In addition, further orders were made. He was ordered to take an extended driving test and also disqualified from driving, the judge indicating a broad intention, of posing a discretionary disqualification period of 3 years to run after he had served the relevant part of his sentence. 2. There was a co-accused, a man called McFadyen, who had pleaded guilty to counts of burglary, handling stolen goods and dangerous driving. He was sentenced to a term of detention in a young offender institution. His application for leave to appeal against sentence was refused by the single judge and has not been renewed. 3. The background is this. The co-accused, McFadyen, had pleaded guilty to stealing and handling a car, a Mercedes car which had been stolen in London and which had come to be called the "London Mercedes". It had been stolen in the course of a burglary in London which had occurred at around the end of May or early June 2017. The number plates of the London Mercedes had been changed after the burglary and false number plates had been fitted. 4. On 10 November 2017 a property, 43 Goring Way near Goring, was targeted on the basis that a Mercedes C63 car, along with another valuable car, was parked at those particular premises. It seems plain that the appellant and the co-accused had come down from London in the London Mercedes with a view to finding suitable premises for them to burgle and steal keys of valuable cars. At all events there was an entry into that property in Goring and there was an untidy search. There was damage to the front door and various other items were stolen during the course of the burglary, including keys both to the Mercedes C63 and another Mercedes parked outside, along with cash and other items. So far as the Mercedes C63 vehicle was concerned that was valued at some £30,000. 5. The police had apparently received some form of alert. It was noted that the London Mercedes, together with the stolen C63 Mercedes, were at a particular petrol station. The C63 Mercedes was by this stage being driven by the appellant and the London Mercedes was being driven by the co-accused, McFadyen. The London Mercedes in fact had arrived at the petrol station a little after the C63 Mercedes. The C63 Mercedes was refuelled, there was then a brief conversation between the appellant and the co-accused and then payment was made for the petrol. At that time the police drove into the service area and the two Mercedes cars then drove out of the service station. Both vehicles turned right going in the direction of Horsham. Shortly thereafter the police pursuit commenced. What followed was caught on a video in the police car which this court has viewed. There was a high speed chase. The London Mercedes was immediately in front of the police pursuing car and the C63 Mercedes, driven by this appellant, was in front again of the London Mercedes. There was reckless overtaking of vehicles by both Mercedes cars with a view to shaking off the police chase. 6. There came a stage where both cars, having driven along the A272 road turned right into a narrow one track country lane. Both cars then sought to turn right at the bottom of the lane, heading in the direction of the A24 car. However, the co-accused, McFadyen, driving the London Mercedes, lost control of the car as it came out of the junction of the country lane and crashed into a hedge. He was in due course apprehended by officers whilst trying to run away from the scene. He gave some false and garbled explanations as to what his involvement in driving might have been. 7. The skill of the pursuing police officers is to be noted and commended. However, the C63 Mercedes, driven by the appellant, continued to drive away. Ultimately it did a loop back round to the A24 and carried on travelling in the northerly direction. What happened was that it then collided with another car on the northbound carriageway of the A24 immediately north of the Broad Bridge Heath interception to the west of Horsham. The collision involved the Mercedes driven by the appellant, a red Ford Fiesta and also a black Peugeot. All those cars had been travelling in the northerly direction. The C63 Mercedes was travelling in lane 2 of the main carriageway. It collided with the front nearside corner of the rear offside corner of the Ford Fiesta, which had itself had just completed a lane manoeuvre from lane 1 into lane 2. Following that collision the C63 Mercedes rotated along the central reservation for a considerable number of metres before coming to rest partially upon the central reservation. The air bag was activated. It would appear that the appellant was effectively unscathed because he ran away. In due course, he managed to persuade a motorist who was entirely ignorant motorist of what happened to give him a lift and he eventually returned to London. 8. As for the Ford Fiesta, that rotated several times following the impact before striking the Peugeot car which was close to it. The Ford Fiesta came to rest at the side of the road. Tragically, as a result of the collision, the driver of the Ford Fiesta, a Ms Rebecca Nevins, who was aged 70, sustained fatal injuries. Her front seat passenger, Ms Goacher, sustained minor injuries albeit requiring hospital treatment. The driver of the Peugeot was not injured. 9. At the time of the collision it was daylight and the weather was fine and dry. The entry into the road showed a 60 mile per hour limit which was clearly signed. It was a feature of this particular case that expert forensic reconstruction concluded that the C63 Mercedes had been approaching the scene at an average speed of between 137 and 147 miles per hour. The expert report was to the effect that the Ford Fiesta had commenced to move into lane 2 at about 57 miles per hour (that is to say, within the speed limit), the Mercedes at the time it took place would have been some 134 to 151 metres away from the rear of the Ford Fiesta when it commenced its lane change. The impact itself was of a glancing nature. 10. As we have said, after getting out of the car and running away the appellant succeeded in making his way back to London. However, he was linked to the stolen C63 Mercedes by virtue of DNA which had been deposited on the driver's air bag which had deployed following the collision. He was ultimately arrested two or three days later at an address in London. 11. There were moving victim personal statements before the Crown Court on which this court does not need to dwell. The impact on the family of Ms Nevins will be obvious to all concerned. 12. Unfortunately this appellant has a very bad antecedent history. He has been before the courts on numerous occasions. Included in his antecedent history are driving offences and offences relating to drugs and dishonesty. In particular, he has a number of convictions for offences of burglary of a dwelling house over the years and he has received substantial custodial sentences in the past. 13. A pre-sentence report was obtained. That was by no means favourable to this appellant. 14. The facts were there fully recited. It also noted the appellant saying to the probation officer who wrote the report that he had failed to stop because he thought "he had a good chance of getting away". He described his collision with the Ford Fiesta car with Ms Nevins as "just an accident that could have happened to anyone". The writer of the report referred to underpinning factors in the appellant's criminality, included his anti-social life-style and attitudes. There was also evidence of thrill seeking. It is right to record that the probation officer concluded that the appellant showed some empathy for Ms Nevins and her family which the probation officer thought to be genuine; albeit that the appellant was still continuing to say that he had been "unlucky". 15. The probation officer reviewed the antecedent history of this particular appellant and concluded that he had entrenched attitudes of criminality. It was noted that there had been stages in his life where his personal circumstances had afforded him a motivation to desist offending. However, notwithstanding these potentially stabilising factors he had carried on committing further serious offences. 16. The writer of the report then said this: i. "Whilst the index offence represents his first conviction for Manslaughter, the behaviour linked to this offence is entrenched. Moreover, the current offence of Burglary conforms to an established pattern of like offending. Mr Dobson has continued to prolifically offend despite numerous attempts to reduce the risk he poses, and the seriousness of his offending behaviour has escalated despite seemingly stabilising factors in his life. The information available to me suggests that there is an imminent risk of serious harm upon release and a significant risk of like re-offending." 17. The writer of the report indicated the appellant's sense of entitlement, as it were, to have a good life style and then said this: i. "Mr Dobson's attitudes appear to be wholly antisocial and are considered to be a critical risk factor ... Mr Dobson has repeatedly disregarded societal norms and the impact of his behaviour. Moreover Mr Dobson has a history of offending whilst subject to Court Orders and has, at times, exhibited a complete disregard for the safety of others for personal gain..." 18. The report concluded that the appellant was assessed as "dangerous" and that the risk of serious harm to members of the public was considered to be imminent and therefore high. The proposal was that an extended determinate sentence should indeed be considered. 19. When the judge came to pass sentence he reviewed matters carefully. He opened his sentencing remarks by saying this: i. "As far as you are concerned, Conor Dobson, may I say at the outset that no sentence that I can impose upon you can possibly equate to the value of Rebecca Nevins' life. It is certainly not intended to and simply couldn't because nothing can put right the dreadful consequences of your actions last November." 20. Those were entirely apposite remarks. 21. The judge then set out the facts and noted the speed at which the appellant had been travelling and recorded him as having in effect used a public road as "a race track". The judge went on to express his agreement with the reasoning and conclusion of the probation officer in the pre-sentence report and took the view that an extended sentence was necessary for the protection of the public. 22. Having so indicated the judge said this: i. "Turning back for a moment to the burglary, because of your past history of committing residential burglaries, the minimum sentence for that offence would have been of three years' imprisonment and the sentence on that matter should as a matter of sentencing practice be imposed consecutively but I am imposing a concurrent sentence to the sentence on count 1 but the sentence of count 1 will be uplifted to reflect the fact that they are concurrent and that I am imposing an extended sentence." 23. The judge then indicated that the appropriate reduction for the plea was 25%. He concluded that the total sentence to be imposed was one of 15 years' imprisonment with the 3 year extended licensed period, as we have said, with a concurrent sentence on the burglary matter. The judge did not specifically indicate what figure he took for the manslaughter count, nor did he indicate what was the total starting point for the overall offending which he took; but it is clear that if he gave, as he did, 25% credit for the plea, the starting point of the judge would have been 20 years' imprisonment for the two counts taken together. It may be noted that there was not available to the judge at the time any sentencing guideline for manslaughter of this kind. The guideline has only come into effect since that time. 24. On behalf of the appellant Mr Kimsey advances three grounds of appeal. First, he submits that the custodial sentence of 15 years' imprisonment (representing a starting point of 20 years before credit for plea) was much too long and was excessive, even allowing, as Mr Kimsey rightly did allow, for the appalling gravity of this offending. Mr Kimsey goes on to say that whilst count 1 was charged as a count of manslaughter and whilst this appellant has pleaded to that count of manslaughter, nevertheless this was a case where it was appropriate to take into account the Definitive Guideline issued by the Sentencing Guidelines Council relating to Causing Death by Dangerous Driving (see for example observations of a constitution of this court in the case of R v Dobby [2017] 2 Cr App R(S) 27). It is, of course, acknowledged that, whereas the maximum available sentence for causing death by dangerous driving is 14 years' imprisonment, in terms of manslaughter the maximum available sentence is one of life imprisonment. However, it was the submission of Mr Kimsey that the circumstances of this case are such that close regard should be had to the indications of level of sentencing had this been charged as causing death by dangerous driving. 25. Mr Kimsey goes on to stress that the Crown had, at all events latterly, accepted that this was to be regarded as a case of gross negligence manslaughter and was not to be treated as a case of "unlawful act" manslaughter. For example there is no suggestion here that this car had been deliberately driven by the appellant at someone as though it was a weapon. 26. In his written arguments Mrs Kimsey also points to a number of authorities. For example, the facts in the case of R v Brown [2018] EWCA Crim 1775 were arguably worse than in the present case and indeed had involved more than one fatality. But there the matter had been charged as causing death by dangerous driving. 27. Mr Kimsey then draws attention to the fact that here there was just the one fatality. That is true and that is obviously highly relevant to the sentencing outcome. It can on the other hand, also be pointed out that it really was by sheer good fortune that there was not more than one fatality or very serious injury involved. He is also entitled to point out that no drink or drugs were involved in this case. That also is true; but it has to be borne in mind that this driving occurred whilst the appellant was trying to escape the police after committing a burglary and above all, it has to be borne in mind that this appellant was driving at such grossly excessive speeds on a busy road. 28. Mr Kimsey's second point is to challenge the judge's finding of dangerousness. He did so without (realistically) pressing that challenge too hard. What is said is that whilst this appellant does have a very bad record, that record does not relate to significant violence. It is further suggested that he is relatively young and any risk could be managed by the inevitably lengthy custodial term he would receive and by the appropriate period of driving disqualification. It is stressed that extended sentences must look to the future and not be used as a form of punishment for what has occurred in the past. 29. As to this second point relating to dangerousness, we would say straightaway that we are not persuaded. Whilst it may be that this appellant does not have any significant record for past violence, the present case shows that he is prepared to risk the lives of the public as and when it suits him. In particular, the pre-sentence report had illustrated his entrenched anti-social and criminal values and his complete disregard for societal norms. There is also a high risk of re-offending assessed by the writer of the report and indeed there has been an escalation in his offending. 30. Our view is that the judge was entitled to accept the observations and conclusions of the probation officer and was entitled, as a matter of his discretion and evaluation, to impose an extended sentence as he did. 31. We revert however to Mr Kimsey's first ground, which is the challenge as to the length of the custodial term. We think that there is considerable force in what Mr Kimsey has submitted. Let there be no misunderstanding: this was terrible offending with tragic consequences. The speeds at which the appellant drove were almost insanely high and he did so on a busy public road. Nevertheless, in the circumstances and bearing in mind that this was treated as gross negligence manslaughter, we do think that the starting point the judge must have selected, had there been a trial, simply was too long in all the circumstances of this case. Had this been charged and tried as a case of causing death by dangerous driving, as it might well have been, we would not have expected the sentence to be the maximum of 14 years: we would have expected the sentence to be somewhat below that. It would be wrong to increase the sentence well above the 14-year maximum, which Parliament has seen fit to allow for causing death by dangerous driving, simply because of the decision to charge as manslaughter. In saying that, we make clear that we do not propose that the guideline for causing death by dangerous driving operates as some kind of straitjacket in motor manslaughter cases. But in the circumstances of a case like this, those guidelines at least should properly be borne in mind. 32. There is no doubt that there then did have to be a significant uplift on the sentence on count 1, on the footing that concurrent sentences were being imposed as the judge elected to do. That uplift had to be significant just because the burglary itself was of a serious kind. This appellant has a very bad record for burglaries. He was in the company of someone else in what was a planned venture and indeed this was a three-strikes case involving, in the ordinary way, a minimum term of 3 years' imprisonment. 33. We conclude, having regard to considerations of totality and adopting the concurrent sentencing approach adopted by the judge, that the total starting point for all this offending, before credit for plea, should have been one of 16 years' imprisonment. With all respect to the judge, we think that his starting point of 20 years' imprisonment in total for this offending was significantly too long. 34. We then turn to Mr Kimsey's third ground of challenge, which is as to the credit for plea afforded by the judge. This was, as we have said, 25%. Mr Kimsey took us through the procedural history. He said a number of points had to be explored, including the obtaining of the expert evidence as to speed and also clarification as to what the Crown's position was with regard to manslaughter. It is sufficient to say, however, that we think that the judge was perfectly entitled to accord credit of 25% for the plea entered at the stage it was and in the circumstances that it was. We do not think that there was any error of principle in the judge's according credit of 25% given the circumstances of this case. 35. In the result therefore, we will quash the extended sentence of 18 years' imprisonment on count 1. We will substitute an extended sentence of 15 years' imprisonment on count 1, comprising a 12 year custodial term and an extension period of 3 years. The sentence on count 3 as imposed by the judge will stand and will continue to run concurrently. We will hear counsel as to any consequential adjustment needed to the driving disqualification period having regard to Needham considerations, we indicating that the discretionary period selected by the judge was entirely appropriate. 36. LORD JUSTICE DAVIS: What is the calculation, because strictly, the time spent on remand should not come into the equation, should it? 37. MR SULLIVAN: No, I do not believe it does. So it is the two-thirds point. 38. LORD JUSTICE DAVIS: Eight years plus 3. 39. MR SULLIVAN: Yes, I think that is right. 40. LORD JUSTICE DAVIS: Would that be your view Mr Kimsey? 41. MR KIMSEY: That is my view, yes. 42. LORD JUSTICE DAVIS: Although that might be a slight increase in the period selected by the judge, because he adopted the wrong methodology, it is not an increase in the overall sentence because we have reduced the custodial sentence. 43. MR KIMSEY: I have nothing to add. 44. LORD JUSTICE DAVIS: I think your client fairly acknowledges the need for him to be disqualified. 45. Very well, the driving disqualification period will be a discretionary period of 3 years to run following on from the 8 years release date. Are there any other points? 46. MR SULLIVAN: No. Thank you. 47. LORD JUSTICE DAVIS: We thought both of you presented your arguments very well. 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 409' date: '2019-02-28' judges: - LORD JUSTICE DAVIS - MR JUSTICE KING - HIS HONOUR JUDGE MARTIN EDMUNDS QC ```

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

Neutral Citation Number: [2019] EWCA Crim 2008 Case No: 2019 00067 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM HHJ RAFFERTY QC T20187083 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 November 2019 Before : LORD JUSTICE SIMON MRS JUSTICE COCKERILL and HHJ BATE - - - - - - - - - - - - - - - - - - - - - Between : DEMI HARRIS Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Auty QC for the Crown Ms Bennett-Jenkins QC for the Appellant Hearing dates: 18 th October 2019 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Cockerill J: 1. On 22 October 2018 in the Crown Court at Nottingham before HHJ Rafferty QC the Appellant, having been acquitted of murder, was convicted of manslaughter. 2. On 6 December 2018, she was sentenced by the same Judge to 8 years imprisonment and to pay Victim Surcharge Order of £170. 140 days was ordered to count towards sentence under s.240 A Criminal Justice Act 2003 . 3. That sentencing exercise involved a consideration of the 2018 Manslaughter Definitive Guideline, which had at that time only been effective since 1 November 2018. 4. The present hearing is that of her substantive appeal against sentence, permission having been granted by the full court in June of this year, following refusal by the Single Judge. The Facts 5. The relevant facts of this case can be stated fairly briefly. The appellant had been in a relationship with the victim, Christopher Pearson, for approximately 3 years. She was 20 and he was rather older – 39 years old. They lived together at his home, a semidetached property in Strathmore Close in Hucknall. 6. Their relationship was somewhat volatile, and there was considerable evidence in the lengthy agreed facts which were put before the jury to suggest that Mr Pearson was on occasion aggressive and violent towards the appellant. There had been no fewer than 14 Police attendances, and a referral to a domestic violence organisation in 2016. 7. By way of example, on one occasion Mr Pearson pulled the Appellant across a room by her hair. On another he hit her repeatedly. On one occasion she bit him to encourage him to desist from such behaviour. On others she rang the police, but did not pursue any complaint of domestic violence; events which were characterised as “ crying wolf ” by the Prosecution and examples of coercive control by the Defence. Witnesses were called at trial who might be said to support either of these cases – or both. On two occasions the Appellant was observed to have a 30 cm long large bladed turquoise blue chef’s knife with her. On one of these occasions she brandished the knife in the direction of Mr Pearson. 8. On Saturday 17 February 2018 the Appellant and Mr Pearson visited bars in Hucknall town centre. During the course of the evening they met up with a number of other people, who were invited back to their home after the bars had closed. It was not in issue that all of them were quite drunk. At some point the Appellant removed herself from the party and went to bed. 9. Between 04:30 and 04:45 the Appellant looked out of her bedroom window and saw Mr Pearson in, or near, the hot tub, wearing only his boxer shorts. A couple of the male guests were naked. A couple of partially dressed female guests were in or near the hot tub. The Appellant shouted towards Mr Pearson who responded by removing his boxer shorts. The Appellant went outside to confront him. 10. As she argued with Mr Pearson one or more of the other men pulled her, fully clothed, into the hot tub. The Appellant was clearly angry about this. She climbed out and went back into the house, returning moments later with a plastic milk bottle filled with pool cleaner, some of which she poured into the hot tub. No one was injured. The Appellant then went back inside and flicked the master switch of the main fuse box off, stopping the hot tub and the music which was playing. 11. Mr Pearson got out of the hot tub and followed the Appellant inside. For what happened then we can have only the Appellant's account. Her evidence was that Mr Pearson was very angry and attacked her, getting hold of her by the hair. She said that in fear of attack and in an attempt to defend herself against an attack by him she reached out, and being against the bedside table, she laid her hand on the blue knife already referred to - which it was Mr Pearson’s habit to keep in the bedroom, on or in the bedside cabinet for personal protection. At trial there was a dispute about whether this account was feasible, given that a glass of orange juice on the bedside table was undisturbed. 12. What is clear is that at some point in the next minutes, the appellant stabbed Mr Pearson with moderate force twice. It was the Appellant’s evidence that she did so in the course of a struggle while Mr Pearson had her by the hair. Remembering that biting him had worked in the past, she said she “ wanted to poke him to get him off me ”. 13. A guest, Gemma Robinson, went into the house to get dressed. She went upstairs and found the Appellant on the landing in a distressed state. Mr Pearson was lying on his back injured. The Appellant said that she had stabbed him because he attacked her. Other guests arriving on the scene placed Mr Pearson in the recovery position and administered Cardio Pulmonary Resuscitation. The emergency services were called at 05:50. The knife was found at the foot of the stairs. 14. Mr Pearson was taken by ambulance to hospital and was treated for two wounds to the left upper side of his abdomen. He received three blood transfusions, but died at 12:39 in the operating theatre. 15. A post-mortem was undertaken on Monday 19 February by Dr Stuart Hamilton who concluded that death was caused by a stab wound to the abdomen which had severed the aorta just in front of the spine. It had caused massive blood loss. A second deep wound passed into and through the abdomen. Dr Hamilton also noted four further wounds to Mr Pearson’s left elbow, wrist and upper arm, which he said were in keeping with defensive injuries; though as Ms Bennett-Jenkins noted, these lacked some of the characteristics of defensive injuries and could have been caused in some other way. The injuries resulted from at least three “interactions” with the knife. 16. The Appellant was arrested and charged with Mr Pearson’s murder, alternatively his manslaughter. Her defence was self-defence. At trial, as already noted, she was acquitted of murder but found guilty of manslaughter, the jury thereby rejecting the defence of self-defence. The Sentencing Remarks 17. In the light of the submissions made for the Appellant it is important to summarise the sentencing remarks. First, the Judge reviewed the relationship history. He noted the evidence of abusive behaviour on the part of Mr Pearson: “ certainly seemingly on a regular basis he was abusive to you either verbally or violently ”. He was unable to form a clear view as to the relationship overall. 18. He reviewed the evidence as to the course of events. He noted that the Appellant was aware what Mr Pearson’s response was likely to be to her actions by the hot tub. He said that Mr Pearson was “ naked and, in that sense, vulnerable ” when he followed the appellant, and there was an argument between them. He noted that Mr Pearson did not immediately assault the Appellant and that on the Appellant’s account Mr Pearson took hold of her by the hair, while at some stage she came to be in possession of the knife from the cabinet in the bedroom. 19. In this context he noted the evidence that the Appellant had been in possession of the knife on two earlier occasions prior to 19 February. He indicated that the appellant gave a different account of those events which the jury either rejected or did not think featured when considering what took place at the top of the stairs. 20. He noted that the Appellant told the jury that Mr Pearson had made threats to kill her, as he had done before, and she feared that on this occasion those threats would be carried out. He noted that even after the Appellant had been taken by the hair, Mr Pearson struck no blow and that meanwhile she did not tell Mr Pearson that she had the knife. 21. The Judge accepted that the jury’s verdict meant that it accepted that the appellant did not attack Mr Pearson intending to kill him or intending to cause him serious harm, but that it had rejected her defence of self-defence, saying: “ inherent in that finding must have been a decision by them that you were aware that you had a knife in your hand and that you used it in an unlawful way ”. 22. The Judge then stated that the use of a knife to kill was a serious aggravating factor in any case and formed part of the background to the relevant sentencing guideline. He noted the starting point for offences of murder when a knife was taken to the scene had been increased by Parliament to 25 years and that the Lord Chief Justice had said repeatedly that those who used knives in any circumstance should expect condign punishment. The Judge indicated that these principles must be applied in the Appellant’s case. 23. He summarised the evidence of the wounds. He noted that the pathologist found that at least moderate force had been used to inflict the wounds and concluded that the minor injuries were in all probability defensive injuries. He said that anyone using a knife, in any circumstance, needed to understand that the risk of causing serious injury or death was high whether intended or not. The Judge found that what happened at the top of the stairs was “ the last straw ”- the Appellant lost her temper and stabbed Mr Pearson. 24. The Judge considered the new Manslaughter Definitive Guidelines and the need to avoid a mechanistic application of them. He then reflected on the difficulty in determining the Appellant’s level of culpability. He found that there was “ a feature in this case that put the offence potentially within Culpability B ”, namely that death was caused in the course of an unlawful act which carried a high risk of death or really serious injury which was, or should have been, obvious to the offender. He also noted that Culpability D reflected incidents where death was caused during the course of an unlawful act, which was committed in defence of self or others, where not amounting to a defence. This was also said to accord with the finding of the jury. 25. He went on to say: “ the court has the difficult balancing exercise of sentencing in a case where Culpability B might be here, Culpability D is here also and having to make a decision on balance as to where this case therefore comes. Between B and D is C ”. He then went on to note that the particular factors referenced for that category in the Guideline did not apply here. He rejected the submission that he should sentence on the basis that this was a Category D case and concluded that there must be a sentence of immediate imprisonment. 26. He stated that the one statutory aggravating factor was the use of a weapon. On mitigation the Judge treated the Appellant as a person of good character. He noted that the Appellant was remorseful straight after the incident and attempted to give what assistance she could. He referred to the history of violence by Mr Pearson to the Appellant, noting that the Court could not say whether it was significant. He highlighted the facts that the offence was not premeditated and the Appellant was young. 27. The materials, including the Pre-Sentence Report, which the Judge took into account also included the fact that she demonstrated an understanding of the impact of the offence on the victim’s friends and family. In addition, she was assessed as a low risk of re-offending and as posing a low risk of harm to members of the public. The Probation Officer also highlighted an element of vulnerability due to the significant age between the Appellant and the victim and the nature of the relationship. 28. The Judge observed that the starting point for a Category C offence was 6 years with a range of 3 to 9 years, while for Category B the starting point was 12 years with a range of 8 to 16 years. He concluded that had she been older and there had not been the mitigating factors that there were, the starting point would have been 10 years. The Judge concluded that the appropriate sentence in the circumstances of the case was 8 years imprisonment. The Grounds of Appeal and oral submissions 29. The grounds of appeal were that: i) The learned Judge failed to afford the Appellant the benefit of the most favourable construction of the verdict. ii) The learned Judge erred in having regard to remarks about sentencing for murder by knife attacks carried out in public. iii) Insufficient credit was given for the numerous mitigating features. iv) The learned Judge erred in failing to identify in which category the offence should be placed within the definitive guidelines on manslaughter. v) The learned Judge wrongly appeared to select Category C as reflective of the Appellant’s culpability. vi) In those circumstances the sentence passed was manifestly excessive. 30. Those grounds have been pursued fully and eloquently in argument before us by Ms Bennett-Jenkins QC, for whose assistance we are most grateful. She emphasised in particular the tragic background of this matter and the youth of the Appellant, as well as the plethora of material available to show how severely and sincerely distressed she herself was by Mr Pearson’s death, and her subsequent descent into shock and clinical depression. 31. She also noted the good use to which the Appellant has put her time in custody since her conviction, the enhanced status she has attained and the creditable progress she has made in vocational and non-vocational education. 32. The core of the submission made, however, was that the sentencing remarks were not as accurate as they might have been and paid insufficient regard to the mitigation and history of the parties in terms of the background of domestic abuse. It was submitted that, given that there was evidence of self-defence (albeit excessive), this should have been the operative indicator, overriding other possibilities within the higher categories. 33. It was argued that the Judge thus erred in choosing a higher starting point and the result was to double or treble the sentence applicable for a Category D offence in the case of a girl who committed an offence in exceptional circumstances, and had no indicators at all of further offending. 34. In addition, reliance was placed on the remarks relating to use of knives. It was Ms Bennett-Jenkins' contention that this case could not be more different than the case from which those remarks were drawn and that citing it effectively pushed the Judge towards the wrong starting point. Discussion 35. Turning to consider these submissions, we consider the grounds largely together, since it was apparent from argument that in reality they overlapped. Most of the submissions effectively took aim at the Judge’s starting point in terms of categorisation. 36. We deal first with the argument that regardless of indications from other categories, the Judge was obliged to sentence on the hypothetical version of events most favourable to the appellant. Although Ms Bennett-Jenkins did not refer us to any authority in support of this submission, we are mindful of the fact that this issue was dealt with by this court in R v Bertram [2004] 1 Cr App R(S) 27 and further clarified recently in R v King [2017] EWCA Crim 128 where at paragraph 31 the court said: “Where there is only one possible interpretation of a jury's verdict(s) then the judge must sentence on that basis. When there is more than one possible interpretation, then the judge must make up his own mind, to the criminal standard, as to the factual basis upon which to pass sentence. If there is more than one possible interpretation, and he is not sure of any of them, then (in accordance with basic fairness) he is obliged to pass sentence on the basis of the interpretation (whether in whole or in relevant part) most favourable to the defendant.” 37. The present case was (as Ms Bennett-Jenkins conceded) one where more than one interpretation of the jury's verdict was open to the Judge and where in our view it was clearly possible for the Judge – well placed as he was, having been the Trial Judge, to be sure of his interpretation of the facts. In those circumstances he cannot be said to have erred in law in not preferring the interpretation urged by the defence. 38. In reality, the thrust of the appeal was not that the Judge was as a matter of law obliged to prefer the most favourable hypothesis, but that on the evidence this was in truth a case of excessive self-defence and should have been sentenced as a Category D case. This was, in effect, the submission made to the Judge on sentencing. 39. Like the Judge, and despite Ms Bennett-Jenkins’s submissions, we find ourselves unable to accept this argument. This was in our judgment not a case which should be categorised as a true case of excessive self-defence, at least to the extent of ignoring the other indicators. 40. Plainly the Judge concluded that this was not the case. Equally plainly in our view he was entitled to do so. Here there were at least three blows, including the fatal blow, a second severe blow which went through the body and at least one blow which resulted in the defensive (or “ quasi-defensive ”) injuries. On the contrary, it would appear that the Appellant had no significant injuries. It was clear on her own evidence that she had the knife for some time before using it and that in this time Mr Pearson did not injure her beyond grabbing her by the hair. The fatal incident on any analysis occurred at least some steps away from the location of the knife before it was used. 41. Furthermore, as the Judge noted, there was evidence that the Appellant had on two previous occasions armed herself with the same knife that was used to kill Christopher Pearson. On one occasion she lunged towards him and on the other it was in the pocket of her dressing gown when police attended. Certainly there was ample evidence that Mr Pearson had previously acted violently towards the Appellant, but that does not mean that the evidence which negatives a strong case of excessive self -defence should have been ignored. 42. The other way in which Ms Bennett-Jenkins put her case was that once it was established or accepted by the Judge that there were indicators of two categories within the Guideline the Judge should, because of the weight of the evidence of abuse, have used Category D as the starting point for the sentencing exercise. 43. This approach, advocated by Ms Bennett-Jenkins, seems to us to ignore the clear wording of the Manslaughter Guideline. That document – into which of course a very great deal of thought has been put by the Sentencing Council – acknowledges the possibility of situations which will encompass factors within more than one category and provides guidance as to how to proceed when that is the case. 44. Specifically: i) Before the initial stage the following text appears in bold: “ The characteristics set out below are indications of the level of culpability that may attach to the offender’s conduct; the court should balance these characteristics to reach a fair assessment of the offender’s overall culpability in the context of the circumstances of the offence. The court should avoid an overly mechanistic application of these factors .” ii) Before determining the starting point, the Guideline warns: “Having determined the category at step one, the court should use the corresponding starting point to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. Where a case does not fall squarely within a category, adjustment from the starting point may be required before adjustment for aggravating or mitigating features.” iii) Before the list of aggravating factors, the following text appears in bold and in its own box: “Care should be taken to avoid double counting factors already taken into account in assessing culpability.” 45. It follows that, based on the approach urged by the Guideline, unless this were a case where the Judge concluded that it was truly a case of excessive self-defence, he would have been wrong to follow the defence's submissions and sentence simply on the basis of Category D. As this court said in AG’s Ref (Bailey) [2019] EWCA Crim 731 at [24] (a case also dealing with the Manslaughter Guideline): “when a case does not fall within one of the four categories, the judge will need to identify a starting point somewhere between them before any adjustment is made for aggravating or mitigating features.” 46. The Judge had the difficult task of weighing the evidence and striking an appropriate balance. It was open to him to conclude that an adjustment up from Category D was the best way of doing this; but equally it was open to him, based on his conclusions on the evidence, to conclude that the circumstances of the case better suited an adjustment down from Category B. 47. So the Judge did not err when noting – and balancing - both the points for and against the Appellant. On the one hand he recognised that there were features consistent with excessive self-defence, but he also correctly identified aspects of the case consistent with Category B – a factor which the defence submissions have consistently ignored. Nor did he err by not starting in Category D. 48. Where it seems to us that the Judge’s exercise can be criticised, however, is in his apparent failure to reach a conclusion on category and starting point before considering the aggravating and mitigating factors, as the Guideline indicates is the right approach. This is because in this case if the exercise does start from Category B on the (perfectly reasonable) basis that this must be taken to be an offence where the acts “ carried a high risk of death or GBH which was or ought to have been obvious to the offender ”, that conclusion is reached on the basis that the act involved a sizeable knife – which may have an impact later in the process. 49. At that point the Judge omitted a logical step, in that he noted the two factors, and then noted: “ between B and D is C ”, without concluding that C was the appropriate category. Ultimately one has to infer where the Judge placed the offence by reference to the conclusion that had the Appellant been older and the mitigating factors identified did not apply, the sentence would have been 10 years. 50. This implies that, having considered the factors in the B category, and the factors in the D category, he was starting within Category B, but shifting the starting point from 12 years to 10 years. This appears to be a figure which also takes into account the use of a knife as an aggravating factor, because the Judge said: “ the sole aggravating feature is the use of the weapon in the repeated sense that I have identified ”, and then reduced the 10 years by 2 years solely by reference to “ the matters that have been prayed in aid by Ms Bennett-Jenkins and all of the mitigating factors that I have made reference to ”. (That is: good character, remorse, assistance at the scene, lack of premeditation, history of abuse and youth.) 51. On this basis, and following the reasoning of the Judge, it would seem that his starting point before the aggravating factor of the knife was considered was 8 years – on the cusp of Categories B and C; reflecting a starting point within Category B adjusted downwards by a significant amount to take account of the Category D factors, but not going to the length of fixing a starting point half way between the 12 years of Category B and 2 years of Category D. 52. Thus, though in one sense the Judge’s approach adopted the approach set out in the Guideline, which is that there will often be characteristics of more than one sentencing category, and while the Judge seems to have followed a careful approach to that first weighing exercise, when it came to the precise application of the approach set out in the Guideline there was an element of imprecision. 53. There are two potential areas for criticism. The first is the approach to aggravation in the form of the use of the knife. 54. This is akin to, but distinct from the ground advanced by Ms Bennett-Jenkins that manslaughter itself encompassed the use of the knife. Plainly that submission is not correct. It is not the case (as cases of one punch manslaughter demonstrate) that the use of a weapon, still less a knife, is accounted for in the offence of manslaughter itself. The Guideline specifically makes provision for a Judge to count the use of a weapon as an aggravating factor in appropriate circumstances. 55. Nor are we attracted by the related submission that the Judge should not have referred as he did to published guidance for knife attacks in public places. This argument makes far too much out of a brief reference to a general proposition. Further we consider that it was appropriate in the context of the case (and the decision to be made as to where within the Guidelines to commence the consideration) to make reference to the policy factors relating to knives – it has long been accepted that use of a knife will be an aggravating factor to offences of violence and this is reflected in the sentencing Guidelines and in the authorities. 56. As was noted in R v. M, AM and Kika [2010] 2 Cr App R (S) 19 (endorsed by this Court last month in the case of R v Qoraishi (A-G ref) , [2019] EWCA Crim 1602 ): “… [I]t is always an aggravating feature of any case involving injury – and of course death – that the injury or death has resulted from the use of a knife or any other weapon …” 57. There is an obvious reason for this: the danger posed by the weapon itself and the difficulty in defending against its use in an attack. 58. The Judge did not in any way suggest a factual similarity between this case and the kinds of cases involving street knife crime, including the particular case alluded to by the Judge. 59. We consider that the point he made has particular resonance, bearing in mind the submission which was made to him for the defence, which amounted to suggesting that an existing Category D factor should effectively override a Category B factor. This as perhaps the more so as context for his decision that Category B was indeed an appropriate starting point for the sentencing exercise. 60. Where we part company with the Judge is that if, as appears to have been the case, the Judge approached sentence on the basis that this was a Category B case (to be adjusted for Category D elements), that approach took into account the use of the knife. On that basis it was wrong in principle – and contrary to the express warning in the Guideline - to count the use of the knife as an aggravating factor. 61. The second basis for criticism mirrors another ground of appeal: namely that insufficient credit was given for the Appellant’s mitigation. We are less attracted by this submission. It is not necessary for a sentencing judge to replicate every submission made or list every agreed fact. It is quite apparent that the Judge balanced the competing interests with great care. 62. The main thrust of this complaint was that the Judge gave insufficient weight to the history of abuse. We do not accept this submission for two reasons. The first is that although the Judge queried whether the abuse was significant so as to strictly fall within the guideline as a mitigating factor, it is plain from his remarks in the context of mitigation that he did take this into account. In his opening remarks, he was quite clear that Mr Pearson had been regularly abusive verbally and violently. Then, in listing mitigation, he said: “undoubtedly there had been an ongoing situation of the kind I described at the opening of these sentencing remarks. … I am bound to take account of all of these factors in assessing sentence and I make it plain that I do.” 63. The second reason is effectively the mirror image of the point on aggravation. The Judge plainly did consider an adjustment fell to be made on the basis of an element of excessive self-defence. That argument was itself predicated on the evidence of Mr Pearson’s past abuse of the Appellant. Without the prior occurrences, she would not have been in fear of his anger. That being the case, it seems to us strongly arguable that to count the history of abuse as a significant additional mitigating factor would be to double count in favour of the Appellant. This was a point noted in Bailey . It seems to us that the Judge’s approach in counting it, but not elevating it to the most significant factor in the mitigation was therefore correct – and possibly generous to the Appellant. 64. Ms Bennett-Jenkins’s developed submissions appeared at one point to amount to a complaint more generally about the Judge’s factual findings (a matter not formally raised as a ground of appeal). In any event, we are not persuaded by this submission. So, for example the Judge’s views on the relative degree of anger of each party was one which was taken out of the context of the consideration of the sentencing exercise itself. As for the Judge’s reference to nakedness of Mr Pearson, which was suggested to be a prejudicial irrelevancy, we consider that this was not irrelevant given that it removed any possibility of Mr Pearson’s being himself armed, which could be relevant to the events which then occurred. 65. We therefore reject the submission that the Judge erred in his approach to the mitigating factors. 66. On that basis it seems to us that the correct approach would have been for the Judge, having reached his starting point of eight years prior to any aggravating and mitigating factors, to have added no aggravating factors, but simply to reduce the figure by two years to reflect the mitigation he accepted. That would have led to a sentence of 6 years. This conclusion would place the offence in the broad band of “medium culpability”. This appears to us to be an appropriate overall band (a consideration noted in Bola [2019] EWCA Crim 1507 ). 67. We would add that – as the authors of the Guideline have anticipated – complex considerations may arise in cases where more than one category is engaged. One approach may be for a sentencer to conduct something of an iterative exercise in this sense; if two categories are engaged, logically the appropriate sentence should be capable of being reached either from the starting point of adjusting downwards from the higher category or adjusting upwards from the lower category. 68. In this case on the Judge’s general approach, but as we have viewed the matter: Starting point B, 12 years; adjusting downwards to 8 for the self-defence Category D aspects; and then downwards further to 6 for mitigation. But the same balancing exercise might equally be arrived at by starting at the top of Category D, 4 years (to reflect the limitations of the excessive self-defence argument); adjusting upwards by 4 years to reflect Category B factors (knife); before reducing for mitigation. 69. However the drafting of the Guideline – and the approach of this Court in Bola - suggests it may be preferable for the sentencer to balance the competing considerations in terms of an overall culpability band, make plain the band from which he or she is starting, and then weigh aggravation and mitigation from that starting point. Here, as the Judge noted the and as we conclude, the appropriate overall band, reflecting a fair assessment of culpability, is Category C. A starting point of 6 years in Category C (intending some harm, but without counting the knife) allows for upwards adjustment for the knife and downwards adjustment for mitigation, reaching the result we have already outlined. 70. We should deal briefly also with the submission that the Judge failed to give sufficient credit for the fact that a plea to manslaughter had been canvassed, but was rejected by the Crown. Canvassing a plea is not usually sufficient to attract credit and there is no good reason here to adopt a different approach. In addition it appeared to be open to debate whether there was in fact any formal “canvassing” of a plea. 71. The sentencing exercise was, as we have noted, sensitive and complicated and there were competing considerations. We acknowledge the Judge’s careful reasoning, and his considered conclusions. Nevertheless for the reasons set out above we have concluded that the Judge imposed a sentence which was too long and on a basis which justifies the intervention of this Court. 72. Accordingly we quash the sentence imposed and substitute a sentence of 6 years imprisonment.

```yaml citation: '[2019] EWCA Crim 2008' date: '2019-11-19' judges: - HHJ RAFFERTY QC - LORD JUSTICE SIMON - MRS JUSTICE COCKERILL - HHJ BATE ```

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: 2012/01123D1 Neutral Citation Number: [2013] EWCA Crim 1780 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BLACKFRIARS CROWN COURT HH Judge Richardson T20100172 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/10/2013 Before : LORD JUSTICE GROSS MR JUSTICE MACDUFF and RECORDER OF CHESTER HHJ ELGAN EDWARDS - - - - - - - - - - - - - - - - - - - - - Between : Michael Wilson Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Richard Lissack QC and Robert Dickason (instructed by Benchmark Solicitors ) for the Appellant Sarah Le Fevre (instructed by London Fire and Emergency Planning Authority ) for the Prosecution Hearing date: 13 th December 2012 and 13 th June 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Gross: 1. This is the judgment of the court to which all members of the court have contributed. In particular paragraphs 1 to 43 were written by MacDuff J. There will be seven sections to this Judgment: (i) Introduction. (ii) The Regulatory Reform (Fire Safety) Order 2005 (iii) The Indictment and the crown’s case (iv) This appeal (v) The original appeal (vi) Does article 32(8) create a discrete offence? (vii) Is that defect remediable? Introduction 2. On 6th December 2011 in the Crown Court at Blackfriars the appellant Michael Wilson was convicted of six offences charged under article 32(8) of the Regulatory Reform (Fire Safety) Order 2005 (hereafter “the Order”) before His Honour Judge Richardson and a jury. He was later sentenced by way of substantial fines with terms of imprisonment in default. Other consequential orders were made which we need not consider. 3. There was a co-defendant Chumleigh Lodge Hotel Limited (“the company”) which was also convicted of six offences under different articles of the Order. The company was charged and convicted of the odd numbered counts on a twelve count indictment; the appellant was convicted of the even numbered counts. 4. The appellant appeals against conviction by leave of the single judge. No complaint is made of the conviction of the company. However, for reasons which will become clear, it will be necessary for us to consider the case against the company. 5. We do not need to consider the background facts in any detail. Chumleigh Lodge Hotel, situated in Finchley London N3, was owned by the appellant. He was the sole director of the company. On 18th May 2008 a fire broke out on the premises. This had been started by a guest in one of the bedrooms carelessly disposing of a lighted cigarette. The Fire Brigade attended and extinguished the fire. The circumstances of the fire were investigated and the company and the appellant were charged with the offences. Regulatory Reform (Fire Safety) Order 2005 6. The relevant provisions of the Order are as follows: (i) Article 3 provides the definition of “responsible person”. It is not necessary to consider this article as it is common ground that the company was, in this instance, the “responsible person”. (ii) Article 5(1) provides that the responsible person must comply with the duties contained within articles 8 to 22. (iii) Articles 8 to 22 inclusive set out the duties with which the responsible person, that is to say in this case the company, must comply. Of relevance: a) Article 9(1) requires the making of a suitable and sufficient risk assessment. b) Article 13 (1) requires that the premises be equipped with (inter alia) fire detectors. c) Article 14(1) requires that routes to emergency exits be kept clear d) Article 17(1) requires that premises, facilities, equipment and devices be maintained in efficient working order and in good repair. e) Article 21(1) requires the provision of adequate safety training for staff. (iv) Article 32(1) (a) provides, insofar as relevant, as follows: “It is an offence for any responsible person … to (a) fail to comply with any requirement or prohibition imposed by articles 8 to 22 … where that failure places one or more relevant persons at risk of death or serious injury in case of fire”. (v) Article 32(3) to 32(7) makes provision for penalties. It is not necessary to recite these provisions. It may be noted that the penalty for breach of articles 8 to 22 is to be found within article 32(3). (vi) Article 32 (8) provides: “Where an offence under this Order committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director … of the body corporate … he as well as the body corporate is guilty of that offence and is liable to be proceeded against and punished accordingly”. (vii) Article 33 provides, so far as relevant: “In any proceedings for an offence under this Order … it is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence”. The Indictment and the Crown’s Case 7. It was the prosecution case that six offences had been committed under the Order by the company. The company was the “responsible person”. The six counts against the company were as follows: (i) Count one : Failing to make a suitable and sufficient risk assessment contrary to articles 9(1) and 32(1) (a) (ii) Count three : Failing to provide staff with adequate safety training contrary to articles 21(1) and 32(1) (a) (iii) Count five : Failing to ensure that routes to emergency exits were kept clear contrary to articles 14(1) and 32(1) (a) (iv) Count seven : Failing appropriately to equip the premises with fire detectors contrary to articles 13(1) and 32(1) (a) (v) Count nine : Failing to ensure that premises, facilities, equipment and devices were maintained in efficient working order and in good repair contrary to articles 17(1) and 32(1) (a) (vi) Count eleven : A like offence to count nine in respect of different equipment and devices contrary to the same articles. 8. Thus it can be seen how the hotel company was charged. The duty was created by the various articles: 9(1), 13(1) 14(1) 17(1) and 21(1). The company was the responsible person under article 3. By article 5, the duties were to be performed by the responsible person and article 32(1) (a) made it an offence if the responsible person failed to comply. 9. Insofar as the odd numbered counts are concerned, the company was convicted by the jury following a trial and does not appeal. It had – as the jury found – committed the six offences. 10. It is now necessary to consider the case against the Appellant. Article 32(8) is set out at paragraph 6(vi) above. There was no issue that the hotel company was a body corporate. It had committed the six offences. The Appellant was a director. If it could be proved that (i) he consented to the offence and/ or (ii) he connived at the offence and/ or (iii) the commission of the offence was attributable to neglect on his part, by virtue of article 32(8) he as well as the body corporate would be “ guilty of that offence and… liable to be proceeded against and punished accordingly”. 11. Article 33, set out above at paragraph 6(vii), provided what may be called a statutory defence. At the trial it was the appellant’s case that he had taken all reasonable precautions and exercised all due diligence; he relied upon this defence (as did the company). The burden was upon him to establish the defence to the civil standard. In summing up the case against the appellant, the learned judge did not direct the jury fully about this defence. He took the view that, if the jury could be satisfied to the criminal standard that the appellant was guilty of neglect, connivance or consent, it could not then be open to them to conclude that he had exercised all due diligence. We may note in parentheses that he did sum up the defence as advanced by the company. 12. We may now return to the indictment. The charges were in pairs. So the case against the appellant in count two was that he had consented and / or connived and / or been guilty of neglect in respect of count one. The same applied to counts three and four; and so on for the length of the indictment. 13. For the purpose of this appeal we need to consider only one pair of charges. The same considerations apply to each pair of charges through the indictment. So we may limit ourselves to looking at counts one and two. As already noted, under count one the hotel company was convicted of failing to make a suitable risk assessment contrary to articles 9(1) and 32 (1) (a). 14. We now reproduce the first two counts of the indictment in the form in which it went before the jury. Count 1 Statement of offence FAILURE TO MAKE A SUITABLE AND SUFFICIENT ASSESSMENT OF RISK, contrary to articles 9(1) and 32(1) (a) of the Regulatory Reform (Fire Safety) Order 2005 Particulars of offence CHUMLEIGH LODGE HOTEL LTD on 18th May 2008 at the Chumleigh Lodge Hotel 226-228, Nether Street, Finchley, N3 1HU, being a responsible person, failed to make a suitable and sufficient assessment of risk, which failure placed one or more relevant persons at risk of death or serious injury in case of fire. Count 2 Statement of offence CONSENT OR CONNIVANCE IN THE COMMISSION OF AN OFFENCE UNDER THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 [“the Order”] OR NEGLECT TO WHICH THAT OFFENCE WAS ATTRIBUTABLE, contrary to article 32(8) of the Order Particulars of offence On 18th May 2008 at the Chumleigh Lodge Hotel, 226-228 Nether Street, Finchley N3 1HU, Chumleigh Lodge Hotel Ltd [“the company”] committed the offence particularised in count 1 and this offence was committed with the consent or connivance or was attributable to the neglect of MICHAEL WILSON , Michael Wilson being a director of the company”. 15. It should be noted that the allegation against the appellant was that he was complicit in the offence under count one by virtue of article 32(8). He was charged with a breach of article 32(8). He was not charged directly with a breach of article 9(1); failing to make a suitable risk assessment. And – as already noted – exactly the same applied to the other five pairs of counts lower down the indictment. These were drafted in exactly the same way. Whereas the company was charged with breaches of six different articles, the appellant was charged with six breaches of the same article. Furthermore, the indictment (so far as concerned the appellant) made no mention of article 32(1) (a). We now return to the words of article 32(8). “Where an offence under this Order committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director … of the body corporate … he as well as the body corporate is guilty of that offence and is liable to be proceeded against and punished accordingly” (our emphasis). 16. We pause to note that, at first blush, the words “ that offence ” would appear to mean the offence under article 9(1). Insofar as the appellant was shown to have consented or connived (or to have been neglectful) he would be guilty of the same offence as the company. We emphasise also the words: “ as well as the body corporate .” In respect of count two this would be an offence of failing to make a suitable risk assessment in breach of article 9(1). This appeal 17. We should now deal with the history of this appeal. At the trial, no point was taken upon the wording of article 32(8). No point was taken about the indictment. Nor was any point taken within the original grounds of appeal when the case was first listed on 13th December last year. There were just two grounds. The first was narrowly focussed and amounts to this. Under the Order, the Appellant was entitled (as was the company) to maintain the statutory defence under article 33. He had sought to do so during the trial but the learned judge, for reasons which he explained (and which we have mentioned above) neglected to place this defence before the jury. The second ground was wider ranging and alleged that the learned judge summed up the case adequately in respect of the counts against the company but not in respect of the counts against the appellant. In effect the whole of the summing up was concerned with the odd numbered counts; there was little reference to the counts against the appellant. That is just a brief summary of the two grounds of appeal within the Appellant’s Notice as originally presented. 18. However, when the matter first came before this court, it appeared to us that there was potentially a more fundamental objection to these convictions. It appeared to us, at least on a first reading, that article 32(8) does not create a stand-alone offence. If a director is in breach of the article, he would stand to be convicted of the same offence as the company, in this case article 9(1). If that analysis is correct, he should be charged under article 9 (1). 19. At the first hearing of the appeal on December 13th 2012, we raised this concern with counsel; we invited and received oral argument; we reserved judgment; and we invited further written submissions. In particular, we invited supplemental written submissions addressing the following two points; (i) were the offences wrongly charged and (ii) if so, would this be remediable. Since then, further things have happened. The appellant has instructed Mr Richard Lissack QC to represent him. Further extensive written submissions have been lodged with the court on both sides, supported by bundles of documents and authorities. And amended grounds of appeal have been filed, adding a new ground; that the offences were unknown to law. 20. In summary, the Appellant submits that the he should have been charged with the like offences as the company – under articles 9(1), 21(1) and so on. Article 32(8) does not create a discrete offence of “consent or connivance … etc”. Nor can the matter be remedied. There is no power to amend the indictment after verdict. The conviction can only stand if it is safe. It cannot be safe where the offence charged is unknown to law. And there is no power to substitute an alternative offence; that may only be done where the jury could on the indictment as drafted have convicted of some other offence. 21. The Respondent submits that the indictment was correctly framed – that article 32(8) creates a discrete offence; an offence of consenting, conniving and so on. Miss Le Fevre relies upon a number of reported decisions to support this assertion. In the alternative, she submits that the error (if error it be) is merely one of labelling. All that the indictment omitted was a reference to Art. 32(1) (a) and/or Art. 9 of the Order. The indictment was not a nullity; the irregularity (if any) did not render the conviction unsafe. In any event rectification is possible by substituting convictions for the offences with which he should have been charged. The original appeal 22. Before considering these matters, we should deal with the two grounds of appeal as originally framed and as briefly summarised in paragraph 17 above. The first ground asserts that the learned judge failed to allow the Appellant to rely upon the “ due diligence” defence provided by article 33 which (as set out in paragraph 6(vii) above) provides: “ in any proceedings for an offence under this Order … it is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence” . 23. The learned judge expressly decided not to place this potential defence before the jury. The reasoning behind that decision is as follows. Before considering the defence, the jury would have had to be satisfied, to the criminal standard of proof, that the Appellant had consented or connived in the commission of the offence by the company, or that the company’s offence was attributable to his neglect. How, it may be asked, can the jury on the one hand be sure that there had been such consent connivance or neglect and on the other hand consider that the Appellant could prove that he had exercised that due diligence? This was a defence which was only available if and when the jury was sure that there had been consent connivance or neglect. If they were sure of that, the issue of due diligence could not possibly arise. In our judgment the point is obvious and this ground fails. It may be that the learned judge could have mentioned it to the jury en passant (“ you may think that, if you have reached this point, the defence cannot possibly avail the Defendant because it would be inconsistent with your finding that he had consented connived …..” or similar words). But we fully understand his reasons for not doing so, and it is axiomatic that his failure to do so cannot possibly render the conviction unsafe. 24. The second ground as originally presented was that the learned judge inadequately summarised the evidence in respect of the Appellant. We are satisfied also that there is no merit in this ground. It is true that, when summarising the evidence, the judge did so in the context of the case against the company. As against the Appellant there were two limbs; first that the company be found guilty; second that the offence had been committed with the Appellant’s consent or connivance, or was attributable to his neglect. In our judgment a repetition of the evidence in respect of the allegations leading to the breaches of the Regulations was entirely unnecessary. Two things were needed: a proper summary of the evidence leading to the convictions of the company; and a proper direction as to consent connivance and neglect. These were adequately provided and there is no merit in this ground of appeal. 25. We may return to the remaining ground; whether article 32(8) creates a discrete offence and, if not, what are the consequences. Does article 32(8) create a discrete offence? 26. We will attempt to summarise the competing submissions. As already noted, Miss Le Fevre submits that the appellant was correctly convicted of six different breaches of article 32(8). Her submissions rest largely upon a consideration of reported cases where the court had to consider section 37(1) of the Health and Safety at Work &c Act 1974. That section is drafted in precisely similar terms to article 32(8). Section 37(1) provides: “ Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director … of the body corporate … he as well as the body corporate is guilty of that offence and is liable to be proceeded against and punished accordingly” Miss Le Fevre has referred us to a number of reported decisions which, she submits, demonstrate that section 37(1) creates its own offence. Principally she relies upon Wotherspoon v HM Advocate [1978] JC 74 ; R v P Ltd [2007] EWCA Crim 1937 and R v Chargot Ltd [2008] UKHL 73 which were all cases where a director or directors were prosecuted for consenting or conniving etc in an offence committed by a corporate defendant and where section 37(1) – the equivalent of article 32(8) – was invoked. On the basis of her analysis – set out between paragraphs 13 and 17 of her main submissions – she asserts that section 37 does create its own offence and that a director or other officer is to be prosecuted under that section. 27. We need to consider those decisions. A part of the headnote in Wotherspoon v HM Advocate ( supra ) reads: “ A managing director of a company which had failed to guard machinery in contravention of statutory provisions was convicted of two charges under section 37(1) of the 1974 Act .” 28. That case was concerned with whether the trial judge had directed the jury properly upon the meaning of the words “ attributable to any neglect ” and, to that extent is not relevant to the point at issue. But, Miss Le Fevre relies upon the statement that the director had been “ convicted of two charges under section 37(1) of the 1974 Act.” Taken at face value those words would suggest that there can be a discrete offence under that section. Miss Le Fevre has also referred us to a part of the judgment of the Lord Justice General (at page 78) where he was dealing with the interpretation of the word “neglect” which is said to support the submission that section 37(1) creates a stand alone offence (paragraph 14 of her main written submissions). However, we note that the learned Lord Justice General referred to neglect to which the commission of “an offence within a specified category” was attributable and we are unable to see that this part of the judgment supports the Respondent’s submission. The judgment begins: “The indictment to which this application relates contained four charges. Each was directed against Singer Company (UK) Limited, the applicant, and a Mr Cole. So far as the company was concerned, each libelled a commission … of certain statutory offences relating to the absence of fencing of certain parts of machines in their factory, and each charge ended with the words “and these offences were committed with the consent and connivance of, or were attributable to the neglect of you John Maxwell Wotherspoon, then managing director … of the said company, contrary to section 37(1) of the Health and Safety at Work &c Act 1974 ”. 29. Mr Lissack submits that that makes the matter clear. There were four charges against the company. The applicant (as was Mr Cole) was jointly charged on the same four counts of the indictment. It is clear that the statement of offence was the same against each defendant. The charge alleged against the applicant arose from the combined effect of the substantive charge and section 37(1). To put that a different way, Mr Wotherspoon was not separately charged under section 37(1) with an offence of consenting or conniving and so on. He was charged with the same offence as the company and the particulars made it clear that, insofar as he was concerned, consent connivance or neglect was an ingredient of the offence alleged against him. That, submits Mr Lissack, is also clear from the following extract from the headnote: “The jury … found the applicant guilty in terms of section 37(1) of the two charges to which the company had pled guilty”. Emphasis is placed on “ the two charges to which the company had pled guilty ”. He had been jointly charged with the same two charges as the company. 30. R v P [2008] EWCA Crim 1937 as the Respondent’s submissions make clear (paragraph 15) takes this matter no further. But reliance is placed upon R v Chargot Ltd [2009] 1 WLR 1 where we are referred to the following part of the judgment: “The offence which section 37 creates is not an absolute offence. The officer commits an offence under this section only if the body corporate committed it with his consent or connivance or its commission was attributable to any neglect on his part. These are things relating to his state of mind that must be proved against him . ” Miss Le Fevre points to the words “ the offence which section 37 creates ”. On the other hand it is also clear that the judge is referring to the same offence as the body corporate has committed ( The officer commits an offence under this section only if the body corporate committed it with his consent … etc); our underlining. “ It ” is the offence committed by both. This was a case where the first and second defendants were companies. The third defendant was managing director of the second defendant. The second and third defendants were jointly charged with contravening section 3(1) of the Health and Safety at Work &c Act 1974. Again the case was concerned with a different issue. But what is clear from a reading of the report is that the third defendant was charged as a director in reliance upon section 37(1). But, as is also clear, he was charged with a breach of section 3(1) and not an offence under section 37(1). 31. In paragraphs 18 to 28 of her main written submissions, Miss Le Fevre makes observations on what she calls the structure of the indictment. We can agree with much of what she says and we would not dissent from her assertion that the particulars of offence set out accurately and completely the misconduct which the prosecution was required to prove. The next paragraphs (29 to 37) deal with aiding and abetting and the way that indictments may be framed. We do not disagree with what is said within these paragraphs. Mr Lissack submits that these submissions are beside the point. If an offence is indicted in this way, this can only be in conjunction with the substantive offence said to be aided or abetted. 32. The next paragraphs (43 to 65) of the submissions are most helpful. They provide access to model indictments used in various different locations and by different prosecuting authorities. They also provide, in some cases, copies of indictments (sometimes partly redacted) used in specific cases. We do not understand Mr Lissack to dissent from any of this. He submits that what is important is not whether a party can be shown to have been charged with “ conduct contrary to section 37(1) of the Health and Safety at Work Act ” but whether the indictment charged the substantive offence under the Act – that is to say the same offence of which the body corporate was charged. His submission is this: that the authorities and indictments supplied by the Respondent demonstrate that the “secondary” liability under section 37(1) or article 32(8) cannot stand alone. In all the authorities and indictments (with a single exception) the relevant counts included the substantive offence (that is to say the same offence as that which was charged against the body corporate). This included the cases of Wotherspoon [1978] JC 74 , R v P [2008] EWCA Crim 1937 , Tuck v Robson [1970] 1 WLR 741 , R v Chargot [2009] 1 WLR 1 , Motor Depot Ltd v Wilkinson [ 2012 EWHC 3257 (Admin ), R v T [2005] EWCA Crim 3511 , and Knowles v Department for Business Enterprise [2009] EWHC 3889 (Admin) . In this last case, May LJ confirmed at paragraph 27 that “the offence was correctly alleged to be contrary to section 23 of the Act” , which was the substantive offence, notwithstanding that the prosecution case had been put on the basis of attributable neglect. Also the model indictments provided at tabs 17 and 18 of the Respondent’s bundle all charge the substantive offence. 33. We mentioned above that there was a singular exception. This was a case ( R v Lion Steel Equipment Ltd and others) tried before the Recorder of Manchester where count 4 charged a director of a company with “neglect contrary to section 37 of the Health and Safety at Work Act”. The principal defendant was Lion Steel Equipment Ltd. The case is not reported and was not considered by this court but the indictment has been provided as one of the samples. Mr Lissack submits that that count suffers from the same defect as alleged here. There is no indication that the point was ever considered. With this exception, all cases and specimen indictments are consistent in charging the substantive offence, whether or not the secondary liability provision is also included. It is submitted on behalf of the Appellant that this is because, far from being an unnecessary gloss, the substantive offence is the crime actually committed and is necessarily the key ingredient in any valid indictment. 34. In our judgment article 32(8) does not create its own offence. So far as the company was concerned, the offence under count one was created by a combination of articles 9(1) and 32(1) (a). These were correctly pleaded in the indictment. So far as the appellant is concerned on count two, the offence is created by a combination of articles 9(1) and 32(8) and it should have been so charged and particularised. We can see from the material with which we have been provided that this is the way indictments are drafted in practice when the crown relies upon section 37(1) of the Health and Safety at Work &c Act in order to prosecute a director. 35. We also note this. Within articles 32(3) (4) (5) (6) and (7) (the penalty provisions) there is no provision for a penalty for a breach of article 32(8). There are prescribed penalties for all other offences. This goes to confirm that article 32(8) does not create its own offence. 36. We are also grateful to Mr Lissack for referring us to other legislation where there are similar – almost identical – statutory provisions which make directors, managers and/ or other officers liable for a substantive offence. These include Section 18(1) of the Theft Act 1968 which provides that: “ where an offence committed by a body corporate under [ section 17 ] of this Act is proved to have been committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence, and shall be liable to be proceeded against and punished accordingly .” 37. Section 12 of the Fraud Act 2006 provides another example. We do not burden this Judgment with the wording of section 12 which is effectively in identical terms. The accompanying Explanatory Note states that: “[t]his section repeats the effect of section 18 of the Theft Act 1968 . It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation ” (Mr Lissack’s emphasis). 38. Section 18(1) of the Terrorism Act 2006 and section 18(1) of the Safeguarding Vulnerable Groups Act 2006 are in similar terms and there is a similar explanatory note in respect of the latter. 39. Of some real interest is section 14 of the Bribery Act 2010 . (1) This section applies if an offence under section 1, 2 or 6 is committed by a body corporate or a Scottish partnership. (2) If the offence is proved to have been committed with the consent or connivance of— (a) a senior officer of the body corporate or Scottish partnership, or (b) a person purporting to act in such a capacity, the senior officer or person (as well as the body corporate or partnership) is guilty of the offence and liable to be proceeded against and punished accordingly. 40. The Explanatory Note expressly confronts the point with which we are concerned: “[i]t should be noted that in this situation, the body corporate or Scottish partnership and the senior manager are both guilty of the main bribery offence. This section does not create a separate offence of “consent or connivance” (our emphasis). 41. We are entirely satisfied that this explanatory note correctly states the law in this area and is equally relevant to article 32(8) of the Regulatory Reform (Fire Safety) Order 2005. There is no discrete stand alone offence of consent connivance etc as alleged in the indictment in this case. 42. We now need to move to consider the parties’ submissions upon whether the matter can be rectified. Is that defect remediable? Introduction 43. Having concluded that the appellant was wrongly charged, we turn to consider whether that error is remediable. It is common ground or at all events indisputable that the appellant was in no way prejudiced by the error. It is indeed a striking feature of this appeal that the point as to charging was neither raised by the appellant in the Crown Court nor in his Grounds of Appeal before this Court. The point first surfaced when MacDuff J very properly drew attention to it immediately before the first hearing of the appeal. 44. Nonetheless, as already foreshadowed, Mr. Lissack QC submits that, regardless of the “merits”, the error is incurable. Again as already outlined, Ms. Le Fevre resists any such conclusion. 45. Before proceeding further, we can dispose of one matter. By the end of the appeal hearings before us, it was common ground that if the indictment was a nullity, then the conviction of the appellant could not be saved by recourse to s.3 of the Criminal Appeal Act 1968 (“the CAA 1968 ”), which furnishes this Court with power to substitute a conviction of an alternative offence. No more need be said of s.3. The framework 46. As explained by the opening words of Archbold 2013 (at para. 1-1), a bill of indictment contains the “…written or printed accusation of crime made at the suit of the Crown against one or more persons.” S.3 of The Indictments Act 1915 (“ the 1915 Act ”) provides as follows: “ 3. General provisions as to indictments: (1) Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge. (2) Notwithstanding any rule of law or practice, an indictment shall, subject to the provisions of this Act , not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Act .” 47. In turn, rule 14.2(1) of the Criminal Procedure Rules 2012 (“the CPR”) is in these terms: “ Form and content of indictment 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.” 48. In the light of s.2 , CAA 1968 , as amended, it is now clear that there is a single basis for this Court allowing an appeal: namely, that the conviction is unsafe. S.2(1) , as amended, provides as follows: “(1) Subject to the provisions of this Act , the Court of Appeal – (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss an appeal in any other case. ” It follows that there is no longer a “ proviso ”, empowering the Court to dismiss an appeal where the conviction has entailed no miscarriage of justice. It is important to read cases decided under the proviso with this change of the law well in mind – while also recognising that aspects of those decisions may well remain of relevance even under s.2 , CAA as amended. Principle and Authority 49. The underlying principle is straightforward: when an indictment is a nullity, the error is incurable and, whatever the “merits”, a conviction based thereupon cannot stand. Conversely, even where there has been a material irregularity in the drafting of the indictment, where the error constitutes what has been described as “mis-labelling”, the conviction may well be safe subject, of course, to any unfairness occasioned to the appellant by reason of the error. The key question here is thus not one of high level principle but of determining on which side of the line this case falls. 50. Mr. Lissack referred us to a number of authorities where the indictment had purportedly charged the respective defendants with offences unknown to law. In all these cases the convictions were quashed. Thus in R v Bhagwan [1972] AC 60 , the Respondent, a Commonwealth citizen, who knew that he was liable to be refused admission to the United Kingdom on examination by an immigration officer under the relevant statute, acted in combination with other persons and chose to land at a place where an immigration officer was unlikely to be encountered. The Respondent was charged with conspiracy to evade the control on immigration imposed under the Commonwealth Immigrants Act 1962 . He submitted that the indictment disclosed no offence known to law; his submission was rejected, whereupon he pleaded guilty. The Respondent’s appeal was allowed by this Court and the Crown’s appeal to the House of Lords was dismissed. So far as here relevant, the ratio of the decision appears sufficiently from the following passage in the speech of Lord Diplock (at p.82): “It is no offence under the law of England to do or to agree with others to do acts which, though not prohibited by legislation nor criminal nor tortious at common law, are considered by a judge or by a jury to be calculated to defeat, frustrate or evade the purpose or intention of an Act of Parliament. If it were otherwise, freedom under the law would be but an empty phrase. ” In R v Withers [1975] AC 842 , the defendants, in the course of their business as an investigation agency, made reports for clients about the status and financial standing of third parties. To obtain the necessary information, they made inquiries of banks, building societies, government departments and local authorities and, to induce the officials or public servants to disclose confidential information, pretended to be acting in an official capacity. The defendants were charged with conspiracy to effect a public mischief. The defendants were convicted and appealed, alleging that the counts in question did not disclose an offence known to the law. This Court upheld their convictions but their appeals were allowed in the House of Lords, the House holding that the law knew no such generalised offence as conspiracy to effect a public mischief. 51. R v Whitehouse [1977] 1 QB 868 involved a defendant’s plea of guilty to two charges of inciting his daughter, aged 15, to commit incest with him. On appeal this Court raised the concern that it was possible that the offences of which he had been convicted were unknown to the law. The prosecution conceded that the common law offence of incitement consisted of inciting another to commit a crime and that a girl aged 15 was incapable of committing the crime of incest under the relevant statutory provision. However, the prosecution sought to uphold the conviction by submitting that the indictment could be read to charge the defendant with inciting his daughter to aid and abet him to have unlawful sexual intercourse with her, contrary to another statutory provision. This Court rejected the prosecution’s various contentions. As the daughter was incapable of committing the crime of incest, the defendant could not be guilty of the common law offence of incitement. Further, given the statutory context, the daughter could not in law have aided and abetted her father to commit incest with her. It followed that there was no offence known to the law of a man inciting a girl under the age of 16 to aid and abet him to have unlawful sexual intercourse with her. Accordingly, as the indictment did not disclose an offence known to the law, the decision of the trial judge to accept the defendant’s pleas of guilty was wrong in law and, with regret, the appeal was allowed. 52. R v Shields [2011] EWCA Crim 2343 ; [2012] 1 Cr App R 9 concerned a defendant who was indicted , erroneously, for a breach of a sexual offences order made under the Crime and Disorder Act 1998 contrary to s.2(8) of that Act . The difficulty lay in the fact that at the time the defendant was indicted, s.2 of the 1998 Act (at least insofar as material) had been repealed. The defendant should have been indicted for a breach of a Sexual Offences Prevention Order (“SOPO”) under the Sexual Offences Act 2003 . The defendant was convicted. This Court allowed his appeal, though it is worth noting the arguments deployed and not deployed. On appeal, the Crown accepted that the indictment was defective and that the appellant had been convicted of an offence of which he could not have been guilty and that, therefore, the conviction could not stand. The Crown did, however, argue that the indictment was not a nullity and that a conviction for breach of a SOPO could be substituted under s.3 of the CAA 1968 ; if no such substitution could be made the Crown accepted that the appeal had to be allowed and the conviction quashed. The Court rejected the argument under s.3 . As would appear from the judgment of Rix LJ (at [11]), the Crown did not develop any arguments as to whether the indictment was a nullity or merely defective. For its part, the Court expressed the view ( ibid ) that the indictment was not merely defective but was a nullity charging an offence unknown to law, despite observing “… that mere drafting defects are not favoured as invalidating an indictment ”. 53. Pausing there, we would at once observe that the cases of Bhagwan, Withers and Whitehouse ( all supra ) are far removed from the problem posed by the present case. They do not raise at all the question of deciding whether an error in the indictment resulted in it being a nullity or merely defective, leaving open the possibility of the conviction surviving as not unsafe under s.2 , CAA 1968 . There was no error, still less drafting error, in the indictment to speak of; the problem was instead one of substantive law. Shields (supra) does come significantly closer to the facts in issue here. That said, Shields concerned an offence which had been repealed and, moreover, as has already been respectfully suggested, was decided (it would appear) on incomplete argument. 54. Mr Lissack also highlighted the speech of Lord Mustill in R v Mandair [1995] 1 AC 208 . The facts were these. The defendant was charged with causing grievous bodily harm with intent, contrary to s.18 of the Offences Against the Person Act 1861 (“ the 1861 Act ”). During the trial it was agreed between the judge and counsel that, pursuant to s.6(3) of the Criminal Law Act 1967 (“ the 1967 Act ”), the jury could be instructed that it was open to them to convict on the lesser offence of inflicting grievous bodily harm, contrary to s.20 of the 1861 Act . It may be noted that whereas s.18 refers to causing grievous bodily harm, s.20 speaks of inflicting grievous bodily harm. However, when directing the jury, the judge referred to the s.20 offence as “causing” grievous bodily harm. The jury acquitted the defendant on the s.18 charge and, having been asked by the clerk if they had reached a verdict “ on the alternative charge of causing grievous bodily harm contrary to section 20 ”, returned a guilty verdict. 55. The defendant appealed successfully to this Court which held that he had been convicted of an offence unknown to law and quashed the conviction. The House of Lords allowed the Crown’s appeal. The House held, unanimously, that it was open to a jury under s.6(3) of the 1967 Act to convict a defendant of an offence under s.20 of the 1861 Act as an alternative to a charge under s.18 of the that Act . The House went on to hold, by a majority, Lord Mustill dissenting, that the expression “ causing grievous bodily harm” was wide enough to include “ inflicting grievous bodily harm ” and that the jury’s verdict of causing grievous bodily harm contrary to s.20 could only be read as meaning that the causing of grievous bodily harm was contrary to s.20 in that it consisted of inflicting grievous bodily harm upon another person. Accordingly, the defendant had not been convicted of an offence unknown to law. 56. Mr. Lissack placed particular reliance upon the passage in the speech of Lord Mustill (at pp. 228-229), dissenting on this part of the case, in which his Lordship formulated the following five propositions: “…1. For the purpose of deciding whether an indictment charges an offence not known to the law what matters is the statement of offence. 2. If the statement of offence purports to charge the defendant under a statute in language which does not reflect the terms of the relevant statute it is [a] nullity and the defendant cannot properly be put in charge of the jury upon it. 3. If the statement of offence correctly identifies an offence which does exist but the particulars of offence do not accurately reproduce the words of the statute the count is not a nullity but is irregular. 4. If the count is a nullity: (a) a verdict of guilty returned upon it is not a conviction; (b) the purported conviction cannot be upheld on appeal by the use of the proviso since there is no conviction to uphold; (c) even if the appellate court is sure that the jury would have convicted of an offence that does exist, the court cannot substitute a conviction for that offence in place of the invalid verdict. 5. If the count is irregular because of an error in the particulars of offence: (a) It may be cured by amendment. (b) The verdict returned in respect of it is not void. (c) If the circumstances of the case, including the evidence adduced and the direction given to the jury, are such that the irregularity has not misled the jury the proviso may properly be applied.” 57. Plainly, given their provenance, these observations are entitled to great respect. We are, however, unable to read them as forming part of the ratio of Mandair. Over and above the fact that the passage in question forms part of Lord Mustill’s dissent, we can find no support for these propositions as such in the speeches of the majority. The leading speech expressing the majority view was that of Lord Mackay of Clashfern LC. He said this (at p.215 D-E): “ ….Obviously it is highly desirable in matters of this sort involving the liberty of the subject that the precise words of the statute, so far as relevant, should be used in the jury’s verdict but where, as here, the jury has actually returned a verdict which ….read as a whole is capable of having a clear meaning it is a technicality to decline to give it meaning because the word ‘cause’ is not used in the section and thereby it is said that he defendant was convicted of an offence unknown to the law. A contravention of section 20 is certainly not an offence unknown to the law…..” 58. It is fair to acknowledge that Lord Mackay (at p. 216 D-E), having regard to the Indictment Rules 1971, stated that a reference to the section in the statute creating the offence appeared to be “ an essential part of the indictment ” and had to be so “ since it is guilt of a contravention of the statute that gives the court power to impose punishment” . Lord Mackay immediately went on to observe that the verdict of the jury was that the defendant had caused grievous bodily harm contrary to s.20 of the 1861 Act and, on the majority’s reasoning, that verdict satisfied the requirement for a statement of offence in the Indictment Rules 1971. 59. In our judgment, first, this passage from the speech of Lord Mackay falls well short of endorsing Lord Mustill’s propositions, including in particular, the stark distinction drawn between the statement of offence and the particulars . Secondly, while it is plainly to be expected that an indictment charging a statutory offence will make reference to the section creating the offence, Mandair did not have to consider the problem which arises when reference is made to the wrong section – still less the consequences which follow. The problem encountered in Mandair was very different to that which arises in the present case; not least in Mandair , there was no charge on the indictment dealing with the s.20 offence. Thirdly, the pragmatic tenor of the majority speeches in Mandair points to resistance to technicalities: apart from the passage in Lord Mackay’s speech (at p.215, already cited), see too Lord Templeman, at p.219 F-G. 60. Pulling the threads together, while Mandair plainly merits careful and respectful consideration, we are unable to accept that it is binding authority determining the outcome of the present case. In considering the persuasive guidance to be obtained from Mandair , we need to do so having regard to a number of authorities (also of high authority) to which Ms Le Fevre referred us. 61. We start with R v McLaughlin (1983) 76 Cr App R 42 . There, the intention had been to charge the defendant with conspiracy to cause explosions under s.3 (a) of the Explosive Substances Act 1883 (“the 1883 Act”). In the event, however, counsel drafted the indictment charging the defendant under s.1 of the Criminal Law Act 1977 (“ the 1977 Act ”). The defendant appealed, inter alia and so far as here relevant, on the ground that the mistake in the statement of offence meant that he had not been charged with any offence known to the law – given that the statutory provisions precluded utilising the 1997 Act to charge an offence under the 1883 Act - and was thus a nullity. The appeal was dismissed. The essence of the Court’s reasoning appears from the following passage in the judgment of O’Connor LJ (at p.47): “ We are satisfied that this indictment was defective and not a nullity. The particulars of offence were entirely apt to particularise an offence against section 3 (a) of the 1883 Act. If an application had been made at the trial to amend the statement of offence in the indictment the judge would have had power to grant the application. The appellant was in no way prejudiced or embarrassed by the defect in the indictment. In our judgment it is quite plain that this is a case for applying the proviso ” As the indictment was not a nullity, it was “ valid for some purposes ” and one of those purposes was “ to save a conviction which is in truth a conviction for conspiracy contrary to section 3 of the 1883 Act …”: ibid. We accept that the reasoning as to the proviso is no longer (at least) directly applicable. However, it seems clear that the Court did not rest its decision on the proviso alone. To the contrary, questions as to the proviso only arose because the Court answered the anterior question by concluding that the indictment was defective but not a nullity. That reasoning remains valid for present purposes. 62. In R v Ayres [1984] 1 AC 447 , the indictment charged a common law conspiracy to defraud whereas the defendant ought to have been charged with a statutory conspiracy under s.1 of the 1977 Act . The defendant was convicted and his appeals to both the Court of Appeal and the House of Lords were dismissed. The principal speech in the House of Lords was given by Lord Bridge of Harwich. He did not pause to consider the “ nullity ” point and was of the opinion that the appeal should be dismissed as the misdescription of the offence had not been of the slightest practical significance (at p.462); there had been no miscarriage of justice and the conviction would be upheld under the proviso. For reasons already explained, considerations going simply to the proviso, are no longer capable (of themselves) in advancing the argument before us. However, earlier in his speech, Lord Bridge had said this (at pp. 460 – 461): “ In a number of cases where an irregularity in the form of the indictment has been discussed in relation to the application of the proviso a distinction, treated as of crucial importance, has been drawn between an indictment which is a ‘nullity’ and one which is merely ‘defective’. For my part, I doubt if this classification provides much assistance in answering the question which the proviso poses. If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete, or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant ” As it seems to us, with respect, Ayres is relevant to the present debate insofar as: a) It focuses on the particulars as well as the statement of offence ; it will be recalled that McLaughlin (supra) spoke to the same effect. b) It is implicit in Lord Bridge’s speech, albeit plainly not the ratio of his decision, that the error in the indictment did not render it a nullity. 63. In R v Searle [1995] 3 CMLR 196 , Lord Taylor LCJ considered both Lord Mustill’s speech in Mandair (supra) and Ayres (supra) . The case related to the alleged evasion of sanctions legislation concerning Serbia and Montenegro. The defendants pleaded guilty after their application to quash the indictment had been rejected. Their appeal to the Court of Appeal was dismissed. 64. On behalf of the appellants, it was argued (see, at [84]) that if the statement of offence incorrectly identified the statutory basis for the prohibition in question, or would have done so if it had referred to it at all, the counts in the indictment were a nullity. Lord Taylor LCJ said this: “[85] The difficulty with this submission is that Lord Mustill’s propositions about the circumstances in which the statement of offence would be regarded as a nullity were limited to allegations of ‘an offence not known to law’. In fact the statement of offence in each of the relevant counts expressly identified an offence known to the law, either under the 1979 Act or under the Order….. [86] In Ayres , notwithstanding the fact that the statement of offence did not accurately allege ‘the only offence’ for which a conviction could be entered, and omitted any reference whatsoever to the appropriate statutory provision, the House of Lords upheld the conviction. It is unnecessary to consider further whether in his observations about the validity of the statement of offence Lord Mustill adopted an approach different from the formulation of principle in Ayres [set out above], which was neither referred to nor cited. To the extent that any conflict in relation to the statement of offence may be discerned this Court regards itself as bound by the principle in Ayres . [87] As section 3 of the Indictment Act provides, and Ayres and Lord Mustill in Mandair underline, the essential requirement in the particulars of offence is that the defendant should be provided with reasonable information about the ‘nature’ of the charge brought against him. The criticisms in the present case are that although correctly identifying the criminality of each appellant, namely wrongful importation or export of prohibited goods to and from Serbia, the particulars of offence incorrectly identified the legal source of the prohibition. However by their pleas the appellants accepted that they acted criminally with full knowledge of the existence of a lawful prohibition against what they were doing…..The ‘nature’ of the charge to which the appellants pleaded guilty was clear to them. [88] In Ayres the misdescription of the offence in the statement of offence itself had ‘not the slightest practical significance’. In our judgment precisely the same conclusion would be appropriate in relation to any wrong choice between the Order and the Regulations in the particulars of offence, and so far as Borjanovic and BYE are concerned, in the statement of offence in counts 1, 3-8, 10 and 11. As there would have been no miscarriage of justice in either case we would have applied the proviso. ” 65. Pulling the threads together from Searle : (i) This Court regarded itself as bound by Ayres rather than the speech of Lord Mustill in Mandair insofar as there was any conflict between them as to the statement of offence. (ii) Albeit that the reasoning was (understandably) focused on the proviso, it is implicit in the judgment of Lord Taylor LCJ that a misdescription of the source of criminality, whether in the statement of offence or the particulars, will not or not necessarily result in the nullity of the indictment. 66. It remains to consider two decisions, both post-dating the amendment of the CAA 1968 . The first is R v Graham [1997] 1 Cr App R 302 . The defendants, accused of “mortgage fraud”, had been convicted of obtaining or attempting to obtain property by deception under s.15(1) of the Theft Act 1968 . The difficulty was that, by reason of the decision in R v Preddy [1996] AC 815 , s.15 could not be relied upon in such circumstances – as the fraudster did not obtain property which had ever belonged to the lender. On appeal, the Crown contended, inter alia , that the convictions were not unsafe because the defendants’ criminality had been clearly established. That argument failed. 67. Giving the judgment of the Court, Lord Bingham LCJ (as he then was) explained the consequences of the amendment to the CAA 1968 as follows (at p.309): “… now there is no proviso. 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. We would for example, expect R v McVitie [1960] 2 QB 483 to be decided under the new law in the same way as under the old. 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 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 ” 68. For our part, we have, with great respect, no quibble whatever with the decision in Graham on the argument in question. As a matter of substance, the defendants had been charged with and convicted of an offence of which, by reason of the decision in Preddy (supra) , they could not in law have been convicted. Those facts are, as it seems to us, considerably removed from those of the present case. 69. We turn to R v Mohammed [2004] EWCA Crim 678 . The indictment had charged the defendants with conspiracy to defraud at common law. On the first day of the trial, counsel obtained leave (without opposition from defence counsel) to amend the indictment. In the event, amongst the changes introduced, the statement of offence in the amended indictment now charged the defendants with conspiracy to defraud, contrary to s.1 of the 1977 Act . The difficulty was that s.1 was inapplicable to conspiracy to defraud, by virtue of s.5 (2) of the 1977 Act . As Bodey J, giving the judgment of the Court expressed it (at [19]) “….the appropriate derivation of the offence was the common law, as had been originally charged .” It was common ground that the change to the statement of offence was a slip; it went unnoticed by anyone and the defendant Mohammed was convicted; the co-accused had earlier pleaded guilty. On appeal, the appellants submitted that the conviction was unsafe; all counsel accepted that the error, though rendering the indictment defective, did not mean it was a nullity: see the judgment, at [25]. 70. The Court reviewed a number of authorities, including Ayres and Graham, both supra. The judgment of the Court continued as follows, beginning with a reference to the passage from the judgment in Graham , set out above: “ 29.…Notwithstanding the last sentence cited, to which the appellants pin their colours, that extract plainly shows that drafting or clerical errors or discrepancies are not to be such as to cause a conviction to be ‘unsafe’ (provided of course, and this hardly needs to be stated, that there is no suggestion of prejudice, unfairness or injustice to the accused). 30. Here there was a drafting error par excellence; one which did not in the result plead an offence unknown to law (as has been suggested at some stages on behalf of the appellants) but rather one which pleaded an offence known to law, but which was accidentally wrongly labelled. 31. When my Lord, Lord Justice Kay asked Mr. McCrindell for Mohammed what about ‘ section 17 ’ of the Offences Against the Person Act, instead of section 18 , or what about the Theft Act ‘1969’ in mistake for 1968, Mr. McCrindell submitted that in such circumstances an appeal would have to be allowed because the conviction would on that basis be unsafe, there being no such precise offence known to law. 32. We do not agree. In our judgment the key to ‘safety’ where (a) there was a mere error of labelling of an existing offence known to law and (b) where the particulars of offence were entirely good and accurate and (c) where the conduct of the trial was wholly unaffected by the slip, is as to whether or not there was any possible prejudice or injustice to the defendant. If so, then clearly an appeal would be allowed. If not, then we consider that a conviction can and should be upheld as being safe. That is the situation ….here. It goes without saying….that every case turns on its own facts and may involve questions of degree. 33. In our judgment what happened here was precisely the sort of thing which Lord Bingham would have had in mind when he referred to drafting errors and when he deprecated resort to undue technicality. 34. We recognise that upholding these convictions will have the less than ideal effect of leaving the defendants on paper convicted or a mis-labelled offence…..But we comment that in the absence of power to amend the indictment, a power which the Court of Appeal does not have…. this is an inevitable concomitant of our not regarding the convictions as unsafe. It was the same when the ‘proviso’ was applied pre-1995.” 71. We acknowledge at once the concession in Mohammed that the indictment was not a nullity – though observing that it appears to have had no or no significant impact on the argument nonetheless advanced. We underline that the Court did not confine its attention to the statement of offence in the indictment but instead included in its consideration the particulars of the offence. We draw particular attention to the Court’s analysis of the judgment of Lord Bingham LCJ in Graham and its application of the law to the facts of the case before it. In our judgment, the reasoning of this Court in Mohammed has very considerable resonance when addressing the facts of the present case. Discussion 72. Having reviewed the authorities at some length, we can now state our conclusions relatively briefly. 73. It is of course right that the accuracy of an indictment should be closely scrutinised. Where the State is seeking to impose criminal sanctions, high standards ought to be demanded. It is further indisputable that where the consequence of an error is that the indictment is a nullity, then, regardless of the “ merits ”, a conviction cannot stand. 74. However, not every error in an indictment renders it a nullity. Where an indictment is merely defective but not a nullity, a conviction may not be unsafe. As Mohammed (supra) makes clear, whether it is unsafe or not must be a question of fact and degree, in which considerations of prejudice or unfairness to the defendant will, at the least, loom large. 75. In our judgment, the reference to art. 32(8) of the Order in the statement of offence in the even numbered counts here did not render the indictment a nullity so far as concerned the appellant. Our reasons follow. 76. First, the particulars of offence were impeccable. They made clear, beyond peradventure, the nature of the appellant’s criminality and correctly cross-referred to the offences committed by the company. Indeed, we did not understand Mr. Lissack to make any complaint as to the particulars of offence. As will be recollected, his submission was instead that defects in the statement of offence could not be cured by the particulars. With respect, however, that submission cannot stand with the approach of the Courts in Ayres, Searle and Mohammed (all supra ). For the reasons already given, we are not deterred from this conclusion by the observations contained in the speech of Lord Mustill in Mandair (supra) . We add this; for our part, we cannot see what legitimate interest would be served by declining to consider the particulars of offence and confining our focus to the statement of offence, when considering the consequences of an error in the indictment. As it seems to us, it is the whole that matters – and ought to matter. 77. Secondly and properly analysed, the error here in the statement of offence of the even numbered counts was one of labelling. Having regard to Ms Le Fevre’s candid response to our inquiries, we cannot properly describe the error as identical to that which featured in Mohammed. Ms Le Fevre’s diligence led her, with respect, mistakenly, to opt for art. 32(8) in the respective statement of offences. Nonetheless, the true nature of the error remained one of mis-labelling, rather than a substantive error of the kind encountered in decisions such as Bhagwan, Withers, Whitehouse and Graham (all supra ). The indictment here did not seek to charge an offence which did not exist or which had been emphatically disapproved in a previous House of Lords decision. To the contrary, the error lay in wrongly labelling the offence as falling under art. 32(8) rather than under a different article or articles in the (same) Order. We do not think that a distinction can properly be drawn between the error in drafting in this case and those found in McLaughlin (supra) or, ultimately, Mohammed (supra) . We ask ourselves whether it can or should make all the difference to charge an offence on which a conviction could not follow ( McLaughlin and Mohammed ) or to charge an article which does not give rise to a self standing offence. We do not think it does or should and are satisfied that authority does not constrain us to reach a contrary conclusion. For completeness, it is to be underlined that the ratio in McLaughlin included the conclusion that the indictment was defective; unlike the decisions analysed in Graham (at pp. 308-9), McLaughlin could not be said to turn on the proviso alone. Had McLaughlin been decided under the CAA 1968 as amended, the reasoning of the Court points plainly to the conclusion that the conviction would have been safe. 78. Thirdly, as was common ground or in any event indisputable, the error in the statement of offence in the even numbered counts manifestly occasioned no unfairness or prejudice to the appellant whatsoever. For our part, we think that the statement of offence in the even numbered counts ought to have referred expressly to the article contained in the matching odd numbered count and in every instance to art. 32(1) (a) of the Order. Thus, taking count 2 as an example, the statement of offence ought to have read: “ Failure to make a suitable and sufficient assessment of risk, contrary to articles 9(1), 32(1) (a) and 32(8) of the Regulatory Reform (Fire Safety) Order 2005 .” Mutatis mutandis , the other even numbered counts ought to have been drafted in the same fashion. To repeat, however, the absence of the reference to articles 9(1) and 32(1) (a) made not a jot of difference to the fairness of the proceedings and did not cause even the slightest prejudice to the appellant. As already highlighted, no mention was made of this error until it was raised by MacDuff J. 79. Fourthly, like the Court in Mohammed , we think that reliance on the error here would involve a “ resort to undue technicality ” of the sort deprecated in Graham . On the facts of the present case – and such decisions are decisions of fact and degree - to allow the appeal would place an undue and unacceptable premium on technicality. 80. Fifthly, again echoing the Court in Mohammed (at [34]), we accept that upholding the appellant’s conviction “….will have the less than ideal effect” or leaving the defendant on paper convicted or a mis-labelled offence. So be it. The appellant’s conviction was not, in our judgment unsafe. The indictment here was not a nullity; it was defective but the defect occasioned neither unfairness nor prejudice. This appeal must be dismissed.

```yaml citation: '[2013] EWCA Crim 1780' date: '2013-10-23' judges: - LORD JUSTICE GROSS - MR JUSTICE MACDUFF ```

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No: 201702461/C2 Neutral Citation Number: [2018] EWCA Crim 491 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday 7 March 2018 B e f o r e : LORD JUSTICE SINGH MRS JUSTICE LANG DBE SIR PETER OPENSHAW - - - - - - - - - - - - - - - R E G I N A v FARAI PHILIMON KAMBARANI - - - - - - - - - - - - - - - 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 Scobie QC appeared on behalf of the Applicant - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity ( Sexual Offences (Amendment) Act 1992 ), or where an order has been made in relation to a young person. 1. MRS JUSTICE LANG: This is a renewed application for leave to appeal against sentence after refusal by the single judge. 2. On 27th February 2017 at the Crown Court at Luton, the applicant was convicted and sentenced for the following offences. Attempted murder, contrary to section 1(1) Criminal Attempts Act 1981 , an extended sentence under section 226 A of the Criminal Justice Act 2003 of 25 years comprising a custodial term of 22 years and an extension period of 3 years. Damaging property contrary to section 1(1) of the Criminal Damage Act 1971 , four weeks' imprisonment to run concurrently. Stalking contrary to section 4 A of the Protection from Harassment Act 1997 , nine months' imprisonment to run concurrently. An indefinite restraining order was also made. 3. The facts may be briefly stated. The applicant's wife Tadiwa Nyamazana left him in June 2016 with their young daughter, A. They moved in with Tadiwa's aunt, Ruth Nyamazana and her uncle who lived in Milton Keynes. The applicant lived in Wolverhampton. The applicant stalked Tadiwa by following and pestering her and accessing her phone and social media accounts. On 27th June 2016 after an outing with Tadiwa and A the applicant confronted Ruth at the door of the house, abusing her and accusing her of taking A from him. When she tried to shut the door he smashed the glass panel on the door. 4. On 22nd August 2016 the applicant followed Ruth as she drove to work using someone else's car so that she would not recognise him. As she came to a halt he deliberately rammed the rear of her car. They both got out of their cars and the applicant began to shout angrily at her, accusing her of stopping him from seeing his daughter. He was wearing blue surgical gloves and was armed with a knife. He punched her in the head with his fists multiple times and said he was going to teach her a lesson. He stabbed her in the neck and upper chest and repeatedly cut her neck, only just missing major blood vessels. In fighting him off she received defensive injuries. He then left her to bleed to death. He took her handbag with her mobile phone in it and when someone rang for her the next day, he said: "She's dead." 5. Ruth had emergency surgery to repair the wounds. Her injuries took a year to heal internally. She experienced severe pain for which she had to take painkillers and she lost sensation around her neck and arms. She was on long term sick leave from her job as a social worker, losing earnings as a result. The psychological effect of the attack was significant. She was constantly fearful. She could no longer visit clients as part of her work. She struggled to go to work and to drive. She was afraid to be alone at night. She had flashbacks and nightmares. Her children also became fearful of going out or being in the house alone. The attack also made Tadiwa very afraid and she had to move away from her aunt and uncle to a secret location which has caused her financial, social and professional difficulties. 6. It was agreed by both counsel that the offence came within level 1 of the sentencing guidelines for attempted murder and that, if this had been a murder, paragraph 5A of Schedule 1 to the Criminal Justice Act 2003 would have applied, with a starting point of 25 years. Applying the guidelines, and factoring in paragraph 5A, the judge found that Ruth had suffered serious, but not long term, physical and psychological harm and imposed a sentence of 22 years' imprisonment. 7. The applicant does not seek to challenge the lawfulness of the sentence of 22 years, only the finding of dangerousness. The ground of appeal is that the judge was wrong to conclude that the applicant posed a serious risk of substantial harm to members of the public under section 226 Criminal Justice Act 2003 . He had no relevant previous convictions and no history of violence. He had been greatly affected by the loss of contact with his daughter. The psychiatric report of Dr Blackwood stated that he was suffering from depression and was on medication. He was drinking heavily and had stopped work. He had formed an irrational dislike for Ruth whom he blamed for the loss of his daughter. The attack was out of character as his previous history and character references demonstrated. He was remorseful after the attack and handed himself in to the police. 8. In our judgment, there was ample material upon which the judge could properly conclude that the applicant posed a serious risk of substantial harm to members of the public. It is apparent from his detailed sentencing remarks that he took into account all the relevant material, including Dr Blackwood's report and the points made by counsel in mitigation. The judge was entitled to rely on the pre-sentence report which was thorough and professional. The criticisms in the report were unjustified. Although the author did not have Dr Blackwood's report, she fully recorded the applicant's mental state, including his hallucinations, depression and his anti-depressant medication. In our view Dr Blackwood's report would not have altered her assessment. 9. The author of the PSR concluded that these were pre-planned offences. The applicant resorted to attempted murder when criminal damage and stalking did not achieve the desired effect of gaining control of Tadiwa and A. The offences were serious, harmful and sustained, sending a clear message to his victims that he was able to harm them emotionally and physically when they did not act as he wished. He was currently focusing on Tadiwa and her behaviour towards him. It would require high levels of intervention to enable him to start to explore his distorted thinking and behaviour. 10. In the PSR he was assessed at a high risk of re-offending. He was also assessed at a high risk of serious harm to Tadiwa, Ruth and any future partner who tried to end a relationship with him. 11. The judge had the benefit of presiding over the applicant's trial and hearing evidence from the victim. He was satisfied that there was a significant risk that the applicant would commit further specified offences and by doing so cause serious harm to others. He referred in particular to the ferocity of the attack, the calculated way in which the applicant set about trying to kill Ruth and his irrational anger towards Ruth, caused by his desire to get his own way and to be in control. The judge concluded there was every likelihood that he would react in the same way again in future if the circumstances arose. 12. In our judgment the judge was entitled to reach the conclusion that the applicant was dangerous within the meaning of the Criminal Justice Act 2003 . The sentence passed was a proper one. For these reasons the application for leave to appeal 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

```yaml citation: '[2018] EWCA Crim 491' date: '2018-03-07' judges: - LORD JUSTICE SINGH - MRS JUSTICE LANG DBE - SIR PETER OPENSHAW ```

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

ARNING: 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 No. 202301401 A3 Royal Courts of Justice Neutral Citation Number: [2023] EWCA Crim 1098 Thursday, 31 August 2023 Before: LORD JUSTICE POPPLEWELL MRS JUSTICE CHEEMA-GRUBB MRS JUSTICE TIPPLES REX V IMRAN MALIK __________ 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 T SINGH KC appeared on behalf of the Appellant. MR T KENNING appeared on behalf of the Respondent. _________ JUDGMENT MRS JUSTICE CHEEMA-GRUBB: 1 On 2 2 February 2023 in the Crown Court at Birmingham, Imran Malik, who is now aged 29 years, pleaded guilty for causing the death of Leon George Youngsam by careless driving on 17 May 2021. Sentence was adjourned. A pre-sentence report was prepared, and, on 19 April of this year, the sentence of 27 months’ imprisonment was imposed. The statutory surcharge was applied, and the applicant was disqualified from driving for three years plus 13 and a half months’ extension pursuant to section 35 of the Road Traffic Sentence Act 1988. 2 He renews his application for leave to appeal against this sentence. Submissions in support have been made by Mr Talbir Singh KC. The Crown are represented by Mr Kenning who has responded to the application. 3 The collusion between the applicant’s car and his victim was captured on CCTV which the members of this court have viewed. 4 The facts were that just before 7 p.m. during bright daylight, Imran Malik was driving his Range Rover east on the A457 Spring Hill in Birmingham. The road has two lanes in each direction. There is no central reservation. Traffic travelling westbound was stationary. As he drove beyond a crest in the carriageway, Mr Youngsam, who was 41 years old, a family man, and who was holding a shopping bag, was crossing the carriageway from between stationary vehicles to the offside of the Range Rover, and he was struck by the applicant’s vehicle. The impact occurred in the eastbound lane and projected Mr Youngsam diagonally forward towards the offside, where upon he collided with a car that was stationary in the line of vehicles westbound. 5 At the point of the collision, the speed limit was 30 miles per hour. There were footpaths and commercial premises on both sides of the road. The conditions were dry, there was good visibility and eyewitness testimony, together with subsequent collision investigation, established that the applicant had been travelling well beyond the speed limit. The agreed expert estimation is that, just before the point of contact with Mr Youngsam, the Range Rover’s speed was 56 miles per hour, almost double the limit. 6 A nurse was in the queue of stationary traffic. She went to Mr Youngsam’s aid and performed CPR until paramedics arrived, but there was no pulse and he died through multiple grave injuries caused to him. 7 A little more detailed analysis of CCTV footage showed that the Range Rover driven by the applicant was held up in vehicles travelling east by temporary traffic lights at roadworks some distance prior to the point of collision. Once able to proceed, the applicant allowed two vehicles to make turns just prior to the traffic lights and then, as he approached and passed through the lights, he accelerated considerably more quickly than the vehicles behind him did. The footage shows Mr Youngsam passed between two vehicles in the stationary queue in the opposite carriageway, he looked twice to his left, the direction of the oncoming traffic and this applicant, and he began to run after this second look. Within a split second, he appeared to hesitate and turned backwards towards the westbound lane but, as he did so, he was struck by the applicant’s car. The applicant stopped and a number of members of the public also responded to the collision. 8 On arrest and interview, the applicant, who had tested negative for drink and drugs at the roadside, claimed he had not seen Mr Youngsam at all and had had no opportunity to react to his presence in the carriageway. He entered a not guilty plea on 7 July 2022 and his trial was fixed for 6 March 2023. Shortly before that listing, as we have indicated, he admitted his guilt. 9 The death of Mr Youngsam was a serious blow to his close family. The judge heard powerful expressions of the devastation the applicant’s actions had brought. As ever, no judicial assessment of culpability can equate to the loss of a much loved man. 10 Expert analysis concluded that the Range Rover would not have been visible to Mr Youngsam when he first looked because of the curve and incline of the road and stationary vehicles. At the time of his second look, it would have been visible to him and he would have been visible to the applicant and they would have been 38 metres apart. The expert noted that it was possible that the Range Rover could have been brought to a complete stop from an initial speed of 56 miles per hour in a distance of 39 metres under emergency braking. It was his assessment that emergency braking commenced only three metres before the collision, indicating prima facie that the applicant had seen Mr Youngsam at least by then. 11 The expert also concluded that, had the Range Rover been travelling at an average speed of 30 miles per hour, even without braking, Mr Youngsam would have had an extra 1.3 seconds in which to either retrace his steps or finish crossing the road before the applicant’s vehicle covered the intervening distance. 12 Mr Singh’s submissions can be encapsulated in this way. The term of imprisonment is manifestly excessive because the judge erred in his application of the Sentencing Council’s guideline for an offence contrary to section 2B of the Road Traffic Act 1988, which carries a maximum penalty of five years’ imprisonment. 13 The notional starting point reached by the judge before credit for the guilty plea, which was 32 months, was simply too high, given that the relevant guideline’s starting point is 15 months. He argues that the victim’s actions in choosing to cross the road where there was no crossing provided should act to reduce the gravity of the applicant’s offence and he draws our attention to the suggestion in the report commissioned for the defence, which he interprets as supporting the contention that the collision may have occurred even if the applicant had driven at the speed limit of 30 miles per hour. 14 Furthermore, Mr Singh suggests that other aspects of mitigation were not sufficiently or at all reflected in the final sentence imposed. In this respect, he relies on the applicant’s remorse which the judge accepted was genuine, he was of previous good character, including no driving offences in the two years between the incident and the sentencing hearing, and personal circumstances. 15 Dealing with these in turn, the expert evidence on the alternative scenario that Mr Singh asks us to consider, namely the collision would still have occurred had the applicant’s speed been 30 miles per hour, was not uncontroversial. The judge accepted the prosecution’s submission that the excessive speed at which the applicant had undoubtedly driven within the prevailing road conditions, roadworks, queuing traffic and temporary lights, was such as to qualify for the highest level of categorisation within the guideline then applying. 16 The Sentencing Council indicated a starting point of 15 months’ imprisonment for offences which fall not far short of dangerous driving, within a range of nine months to three years. The judge said that the appropriate sentence, allowing all relevant features, would have been one of 32 months, just four months short of the top of that range. He applied a 15 per cent discount for the late guilty plea, which was and remains an uncontroversial feature. The resulting term of 27 months was too great to be suspended and the judge noted that, even if he had considered it just to reduce it further, he would have imposed a sentence to be served immediately. 17 Section 59 of the Sentencing Code states that the courts must follow any relevant sentencing guideline unless it is contrary to the interests of justice to do so. Judges are required to follow relevant guidelines in a rational, reasoned way and explain significantly clearly in their sentencing remarks how the guideline has been applied. While judges are permitted to disapply a guideline if justice requires that course, axiomatically, any such departure must be explained. The transparent application of the sentencing guidelines promotes public confidence in the consistency of sentencing practice. 18 The omission we have found in the judge’s brief analysis is any reasoning to explain moving from the starting point of 15 months to more than double that term at the stage before reduction for the guilty plea. 19 The Sentencing Council guideline applicable until July 2023 provides a detailed narrative of aggravating and mitigating features applicable to all driving fatality cases, whether caused by dangerous or careless driving or contributed to by the consumption of alcohol or drugs. The judge did not express, nor can we find, any aggravating features beyond the excessive speed at which the applicant drove in the prevailing road conditions. While we agree that the speed, almost double the limit while approaching a rise which limited the driver’s view for a period after which the applicant still failed to see Mr Youngsam until a few metres away from him at least, as indicated by the analysis, that there was then a late application of the vehicle’s brakes, this did properly fall to be considered not far short of dangerous driving and, further, would have justified some uplift from the starting point, we are persuaded that, in reaching a provisional sentence of 32 months, the judge failed to avoid double counting the impact of the speed of the applicant at the time of the collision and the judge gave no reason for departing from the guideline. 20 There was some mitigation available. Good character is often, indeed usually, the position in cases of this kind and the guideline assumes that the offender is of good character. Accordingly, no discount is required for that aspect. The applicant’s remorse was expressed through counsel and in a letter to the court which we have read, together with a number of character references. The judge accepted this was a case of genuine remorse and not mere self-pity. Genuine remorse is a mitigating feature. 21 The guideline specifically requires the court to consider whether the actions of the victim contributed to the commission of the offence, but we do not take the view that this was the situation here. Mr Youngsam crossed the road at a point when the cars in the lanes closest to him were stationary and there was very light traffic in the other direction. When he saw the applicant’s car speeding towards him, he reacts and, although Mr Singh suggests that the judge was wrong to state that the victim froze at one point before reacting, in our judgment, it is not only unattractive, (and counsel must sometimes make an unattractive submissions to this court,) it is wholly unfair to criticise either the judge or Mr Youngsam. Mr Youngsam particularly, for his efforts under such desperate circumstances as he found himself in. 22 Finally, the personal family circumstances of the applicant are not out of the ordinary and hardship caused to others by his imprisonment is his responsibility alone. 23 Having assessed the submissions and reflected upon the available evidence, particularly the CCTV footage, and having rejected the grounds argued, we do nonetheless find some merit in this application. This arises because of the unwarranted uplift from the starting point. We grant leave and conclude that a sentence after trial of 20 months was required to meet the gravity of this case, taking into account all of its features. After a reduction of 15 per cent, the sentence imposed should have been in the region of 17 months. We agree with the sentencing judge that adequate punishment could only be enforced by immediate custody. Accordingly, we quash the sentence of 27 months and substitute an immediate custodial sentence of 17 months’ imprisonment. 24 Disqualification for 12 months is mandatory. We reduce the disqualification to two years. To reflect the period of incarceration, it will be extended by eight months, so that 32 months’ disqualification applies from the date of sentence. To that extent, this application succeeds. __________

```yaml citation: '[2023] EWCA Crim 1098' date: '2023-08-31' judges: - LORD JUSTICE POPPLEWELL - MRS JUSTICE CHEEMA-GRUBB - 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} ======

Case No: 200700022 C5 Neutral Citation Number: [2017] EWCA Crim 742 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BRISTOL His Honour Judge Lambert S2006/0204 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14 June 2017 Before : THE PRESIDENT OF THE QUEEN’S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE HADDON-CAVE and HIS HONOUR JUDGE INMAN Q.C. sitting as a Judge of the Court of Appeal (Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : TERENCE JOHN HOCKEY Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Application considered on the papers - - - - - - - - - - - - - - - - - - - - - Judgment Sir Brian Leveson P : 1. On 17 November 2006, in the Crown Court at Bristol, His Honour Judge Lambert sentenced Terence John Hockey to concurrent terms of 9 months’ imprisonment for six offences to which he had previously pleaded guilty in the Magistrates Court. For those which arose after the implementation of the Criminal Justice Act 2003 , he also ordered that he undertake 240 hours’ unpaid work. 2. The underlying offences arose out of three mortgage applications which were each based on false representations as to income. As a result, very substantial sums were loaned, secured on the properties. However, moving from sentence to confiscation proceedings which were conducted pursuant to s. 6 of the Proceeds of Crime Act 2002 (“ the 2002 Act ”), Judge Lambert declined to make an order, not least because the mortgagors were prepared to rely on the security which the properties provided and collect the interest payments. On the basis that to proceed would do nothing for the victims of the crime, he adjourned the application on the basis that he reserved the matter to himself and would not restore it. 3. By s. 31(2) of the 2002 Act , the prosecutor is entitled to appeal to the Court of Appeal (Criminal Division) against a decision in confiscation proceedings and such an appeal was mounted. On 12 June 2007, it came before the court (Pill LJ, Dobbs and Lloyd Jones JJ); the question which arose was as to the justification for refusing to make the order, having regard to the terms of the legislation. Moreover, it was common ground between the parties that the sum of £298,457 constituted the benefit which he had obtained within the meaning of the 2002 Act and that he had realisable assets substantially in excess of that sum. Having dismissed the reasons advanced by the judge for adjourning the application (and, in effect, refusing to make a confiscation order), the court did so in the sum of £298,457 and imposed a term of three years’ imprisonment imposed in default of payment within 6 months: see [2007] EWCA Crim 1577 , [2008] 1 Cr App R (S) 50 . By selling his home, Mr Hockey paid the compensation. The properties were later repossessed and sold when the mortgage repayments were not made. 4. Nearly ten years have since elapsed and an application has now been made to re-open the decision of the Court of Appeal under the implicit jurisdiction identified in R v Yasain [2015] EWCA Crim 1277 , [2016] QB 146 . The application has been referred to the full court by the Registrar for determination on the papers. 5. In support of the application, Philip Bown (who did not appear in the original proceedings) argues that a proper consideration of s. 76(4) , 84(1)(b) and 79(2)-(3) of the 2002 Act identifies that the true benefit obtained by Mr Hockey was not the mortgage monies but the properties such that the benefit would have been the difference between the purchase price and the then current market value of the properties after deduction of the mortgage. He asserts that this was not new law as is clear from R v Pattinson [2007] EWCA Crim 1536 , [2008] 1 Cr App R (S) 51 : in fact, as he recognises, that case was decided on 13 June 2007, that is to say, the day after the appeal. In any event, he goes on to say that this method of calculation has been approved in R v Waya [2012] UKSC 51 (see [114]. 6. Mr Bown suggests that the only route for appeal would be provided by s. 33 of the 2002 Act to the Supreme Court which, he says, was “clearly, not available in this case”. It in those circumstances that he considers that Yasain “provides the answer”, citing the implicit jurisdiction to re-open an appeal where there has been a defect in the procedure leading to real injustice. The Jurisdiction to re-open Decisions 7. In Yasain, supra , the Court considered the circumstances in which a final determination of the Court of Appeal (Criminal Division) could be re-opened. There were two established categories. The first arose where the decision had not been entered into the record: it was common ground that there was a wide power to revise any order that had been pronounced (see [19]-[22] of Yasain ). The second arose where the decision had been entered into the record but, on proper analysis, the order was a nullity (as in R v Majewski (1976) 62 Cr App R 5 and confirmed in Yasain [24]-[25]). 8. A further exception could be identified where there had been some defect in procedure which may have led to a real injustice. An example was identified in R v Daniel (1977) 64 Cr App R 50 , [1977] QB 364 where a renewed application was determined when, as a result of administrative error on the part of the court, notice had not been given to those acting for the applicant. Even then (as Lawton LJ observed at 370A) relisting depended on the likelihood of injustice having been done: this would not obtain if “it is clear beyond argument that the application cannot succeed”. There was no such exception based on fresh evidence ( R v Pinfold (1988) 87 Cr App R 15 , [1988] QB 462 ), or where a further challenge was to be mounted on a finding of dangerousness ( R v Pedley [2009] 1 WLR 2517 ). 9. Yasain was particularly concerned with the existence and extent of this last category and examined the question as a matter of general principle. Having analysed the power identified by the Court of Appeal (Civil Division) in Taylor v Lawrence [2002] EWCA Civ 90 , [2003] QB 528 , Lord Thomas CJ found there was no basis for any distinction between the two Divisions although having noted the observations of Lord Woolf in that case (at [54] to the effect that the jurisdiction was “to avoid real injustice in exceptional circumstances”, “linked to a discretion which enables the court to confine the use of jurisdiction to the cases in which it is appropriate for it to be exercised”), Lord Thomas CJ went on (at 40) “The fact that both have the same implicit jurisdiction does not mean that the jurisdiction has necessarily to be exercised in the same way by the Criminal Division as it would be by the Civil Division. For example, in a criminal case there will often be three interests that have to be considered – that of the State, that of the defendant and that of the victim or alleged victim of the crime, even though the victim is not a party to the proceedings under the common law approach: see R v B [2003] 2 Cr App R 197 at paragraph 27; R v Killick [2012] 1 Cr App R 10 , [2011] EWCA Crim 1608 at paragraph 48. There is the strongest public interest in finality. The jurisdiction is probably confined to procedural errors, particularly as there are alternative remedies for fresh evidence cases through the Criminal Cases Review Commission”. 10. A good example of the type of procedural error leading to injustice can be found in Yasain itself. When the case first came to the Court of Appeal, although the trial record sheet printed from CREST recorded convictions for rape, robbery, assault and kidnapping, the transcript then obtained disclosed, on its face, that no verdict had, in fact, been taken on a count of kidnapping. As a result, that conviction was deleted (without it being recorded that he had been acquitted). It later transpired that a serious error had been made in transcribing the proceedings and the process had been carried out “impeccably”: the conviction for kidnapping had been returned by the jury. In those circumstances, the record of the conviction (and the consecutive term of imprisonment) was restored on the basis that a real injustice would result if the order could not be re-opened and corrected. It is not difficult to see the exceptional circumstances which justified this course. 11. The availability of a remedy through the Criminal Cases Review Commission (“CCRC”) was emphasised in R v Bush [2015] EWCA Crim 2002 where an attempt was made to re-open a previously dismissed appeal against conviction for murder. Rafferty LJ explained (at [26], [27]) that the court was functus and that the CCRC provided a tried and tested route to achieve the objectives of an appellate court as required by Yasain. The same course of action was emphasised in R v Melius [2016] EWCA Crim 1538 . 12. A purely technical or administrative slip whose rectification does not involve reconsideration of the justice of the case and requires no re-hearing may (in appropriate circumstances) be remedied on the papers, it being underlined that the court was otherwise functus (see R v Shoker, Lennox & Kuchhadia [2015] EWCA 1939). It is important, however, that the correction of technical or administrative error and the extremely limited power identified in Yasain should not be extended or become blurred. 13. In that regard, the decision in R v Powell [2016] EWCA Crim 1539 should not be misunderstood. It concerned another confiscation case (following an appeal) where it was subsequently conceded by the Crown that the figure for realisable assets wrongly included a sum in excess of £22,000. The CCRC had declined to refer the case on the grounds of its belief that the remedy was to apply for a Certificate of Inadequacy (which was refused). The court exercised the Yasain jurisdiction on the grounds that although either the refusal to grant a Certificate of Inadequacy could be appealed or the decision of the CCRC challenged by way of judicial review, “enough time, effort and previous resources have already been spent on getting this error corrected”. The court did so on the grounds that the circumstances were exceptional and that there was an implicit power to re-open a concluded appeal where it was necessary to avoid a real injustice. In reality, however, it was because the error was conceded by the Crown and expedient to prevent further litigation. This case should be considered as confined to its own facts and should not be cited as a precedent for any attempt to sidestep the appropriate procedures to challenge decisions said to be wrong whether for legal or factual reasons. 14. We emphasise the very limited jurisdiction identified by Yasain. It is absolutely not available in circumstances such as obtain in this case where it is alleged that the proper construction of the legislation was misunderstood and has been recognised as having been misunderstood in subsequent litigation. For that reason alone, this application is misconceived and is refused. Procedure 15. Although it is without merit, this application has raised questions of procedure about which it is important to give guidance until such time as the Criminal Procedure Rules Committee address the matter by formulating a rule similar to that set out in CPR 52.17 in relation to the Court of Appeal (Civil Division) but delineating the different factors and circumstances applicable to this court: Lord Thomas CJ mentioned the need for such rules in Yasain at [42]. The guiding principles must be the interests of the public (including in the finality of proceedings), the interests of the defendant and the interests of any victim. 16. Thus, a foundation for practical procedural requirements (and the procedure which must be followed until Criminal Procedure Rules which provide for a different framework) is as follows: i) If a party (whether prosecutor or defendant) wishes the Court of Appeal (Criminal Division) to re-open a final determination of the court based on the implicit jurisdiction identified in Yasain it must: a) Apply in writing for permission to re-open the decision, as soon as practicable after becoming aware of the grounds for doing so; and b) Serve the application on the Registrar and all other parties to the proceedings. ii) The application must specify the decision which the applicant wishes to re-open and provide reasons identifying: a) The circumstances which make it necessary for the court to re-open that decision in order to avoid real injustice; b) What makes those circumstances exceptional and thus appropriate for the decision to be re-opened notwithstanding the interests of other parties to the proceedings and the importance of finality; c) An explanation and reasons for the absence of any alternative effective remedy and for any lapse of time in making the application having discovered the facts which form the grounds for so doing. iii) On receipt of an effective application, the Registrar will refer the application to the full Court for determination on paper. There is no right to an oral hearing unless the full Court so directs. iv) The Court must not give permission to re-open a final determination unless each other party to the proceedings has had an opportunity to make representations. In making any such representations, the prosecution has a duty to obtain the views of any victim or the family of such a victim. Alternative Remedies 17. For the sake of completeness, although it is no part of the function of this court to identify mechanisms which could be open to Mr Hockey, by way of underlining the critical requirement that no other remedy must be available before the Yasain jurisdiction is triggered, it is worth identifying avenues open to him and others minded to make similar applications. The possibility that redress could be sought by an approach through one of these procedures itself undermines the exercise of seeking to re-open an appeal. 18. The first is a statutory right of appeal to the Supreme Court under s. 33 of the 2002 Act in respect of which leave was required (see article 11 of the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 (2003 No 82). There is a time limit then (by virtue of article 12) to be exercised within 14 days subject to a power to extend, but now 28 days: see Proceeds of Crime Act 2002 (Appeals under Part 2) (Amendment) Order 2013 (SI 2013/24). There is no requirement for the Court of Appeal to certify that a point of law of general public importance is involved in the decision but it must be recognised that neither this court nor the Supreme Court is likely to give leave unless the ramifications of the decision are wide-ranging. The procedure is set out in CrimPR 42.10. 19. The second is the prospect of Mr Hockey (or others) being able to mount an appeal against sentence to the Court of Appeal (Criminal Division) under s. 10 of the Criminal Appeal Act 1968 (“ the 1968 Act ”), confiscation being an order made by a court when dealing with an offender (see s. 50(1) of the 1968 Act and R v Neal [1999] 2 Cr App R (S) 352 . In that regard, it is critical to point out that the previous decision in this case was the consequence of an appeal by the prosecutor under s 31(2) of the 2002 Act and the position would appear to be analogous to the situation which arises following an Attorney General’s Reference under s. 36 of the Criminal Justice Act 1988 . Such a Reference does not extinguish the right of appeal under s. 9 of the 1968 Act : see R v Hughes [2009] EWCA Crim 841 . 20. It should not be thought that such an approach does not carry with it all the limitations and risks which attend applications for leave to appeal against sentence, particularly when out of time. In Hughes , the position in relation to an appeal following the conclusion of an Attorney General’s Reference (which is, of course, different although parallel issues arise) was made clear by Hughes LJ (as he then was) at [20] in these terms: “It ought clearly to be understood that it by no means follows that the court will in fact entertain such an appeal. Any application for leave to appeal sentence requires leave and, in this case and no doubt any others like it, an extension of time. The right to appeal given by section 9 of the 1968 Act is subject to section 18 , which requires an application to be lodged within the time stipulated – which is, by section 18(2), 28 days. An extension of time is by no means a formality. It will be granted only where there is good reason to give it, and, ordinarily, where the defendant will otherwise suffer significant injustice. In the very small number of instances in which there has been an earlier reference by the Attorney General, it will be a highly significant factor that it was then open to the defendant to mount any argument that he wished to the effect that his sentence was too long or otherwise wrong in principle. Leave is likely to be refused in any case in which what he now seeks to argue could and should have been argued then. Wholly unmeritorious applications which are no more than an attempt to ventilate second thoughts or to re-litigate decided issues are likely to be met by an order for loss of time under section 29 of the 1968 Act . In all but the wholly exceptional case the decision of this court upon a reference by the Attorney General is, as this court held in Rowan , as much an end of the sentencing process as is its decision upon an application by the defendant under section 9 .” 21. It should be noted that Mr Hockey has not exercised his right of appeal (which, in his case, would be under s. 10 of the 1968 Act on the basis that sentence was imposed following conviction in the magistrates court for which he was committed for sentence to the Crown Court, rather than s. 9 which provides for an appeal following conviction on indictment). The current application was lodged on Form NG and logged as 20170228C5 although it has correctly proceeded as an application (albeit rejected as misconceived) in the original appeal. It would require an extension of time of 9 years and 10 months and would have to be re-drafted to address the issues identified in Hughes. If that were to happen, it should then proceed to be considered in the normal way by a single judge (who may require representations from the Crown). We are not prepared to allow this misconceived application to be used as a short-circuit for the proper procedure to be followed and, similarly, we leave any question of a representation order to the single judge. 22. Finally, although it does not arise in relation to Mr Hockey because there is an extant application for leave to appeal to the Court of Appeal, again for the sake of completeness, it is appropriate to mention to the CCRC. It may investigate the outcome of criminal cases and should it conclude that there is a real possibility that a conviction will be quashed or a sentence reduced, it may refer the case back to the Court of Appeal where a person has been convicted on indictment ( s. 9 of the Criminal Appeal Act 1995 ) or to the Crown Court where the conviction has been in the magistrates’ Court ( s.11 of the Criminal Appeal Act 1995 ). Although a reference will ordinarily only be made in respect of an argument or information not available in the court of first instance or on appeal (see s. 13), in exceptional circumstances it may do so without such a development (s. 14 ibid ). That avenue would also require exploration. Conclusion 23. This application is misconceived both in substance and, in any event, because other potential avenues for redress remain available. There has been a real increase in the number of applications seeking to apply Yasain which are, almost invariably, without merit and are liable to be rejected summarily. Given the pressure on the Court of Appeal (Criminal Division) to deal with outstanding appeals and applications, it is therefore appropriate to underline the truly exceptional nature of this type of application and the strict need to justify attempts to bring cases within its remit. It is for that reason that we have felt it appropriate to provide a detailed analysis and explanation of the position. In the circumstances, we give leave for this judgment to be reported.

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Case No: 2001/02527/W3; 2001/02570/W3; 2001/05339/W3 Neutral Citation No: [2003] EWCA Crim 193 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BURY ST EDMUNDS CROWN COURT HHJ BEDDARD Royal Courts of Justice Strand, London, WC2A 2LL Friday 7 th February 2003 Before : LORD JUSTICE RIX MR JUSTICE MITTING and HHJ MADDISON (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - William John JAMIESON Jeffrey Craig HOBDEN Appellants - - - - - - - - - - - - - - - - - - - - - (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 Anthony Bate appeared on behalf of the Crown Ms Lynn Griffin appeared on behalf of Jamieson Mr Nicholas Atkinson QC appeared on behalf of Hobden - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown Copyright © Lord Justice Rix : 1. These are the appeals of Jeffrey Hobden and William Jamieson who were both convicted on 4 April 2001 in the Crown Court at Bury St Edmunds, before HH Judge Beddard and a jury, on a single count of robbery and were sentenced to terms of 10 years imprisonment. There is also a renewed application for leave to appeal by Hobden on a number of grounds on which he was refused by the single judge. We will come to those matters at the end of this judgment. 2. We resolved these appeals and renewed application at the time of their hearing on 13 December 2003 by dismissing them, but reserved our reasons, which are now contained in this judgment. 3. The victim of the robbery was a 73 year old man who lived alone in an isolated cottage near Bury St Edmunds in Suffolk. At around 7.20 pm on 18 February 2000 a number of men broke in and robbed him of about £30,000 of antiques and some cash. The victim spoke of 3 or 4 men. One, described as “man 1” and later identified by the victim as Hobden, was masked by a scarf: he brandished a knife and made threats. The victim was tied up, blindfolded by having his own cardigan pulled over his head, and later locked into an upstairs linen cupboard. When he managed to break out of both his bonds and the locked cupboard he drove to the local police station to raise the alarm: he could not use his telephone which had been ripped out by the robbers. It was an admitted fact that he arrived at 9.47 pm, some 2½ hours after the beginning of the robbery. Items from the robbery were later recovered from an antique dealer’s shop in Brighton and from an auction house near Horsham, also in Sussex. 4. The prosecution said that there were four robbers, Hobden, Jamieson, Lee Padula, and Shaun Smith. Padula, who was then only 15 years old, pleaded guilty to this robbery in Suffolk as well as to other robberies in Sussex (the “Sussex robberies”) and gave evidence for the prosecution at trial. Shaun Smith, then 16, was found unfit for trial. Hobden and Jamieson were much older than the two teenagers, being 36 and 37 respectively. Hobden and Jamieson denied any involvement in the robbery, although as will appear below, to a large extent each of their defences involved cut-throat suggestions to the effect that, if Padula was telling the truth at all, there were only three involved, who did not include either of themselves. 5. The Sussex robberies, which unlike the robbery of the Suffolk cottage were of commercial premises, both preceded and followed the Suffolk robbery. The Crown said that the two earlier ones, on 9 and 14 February 2000, involved Hobden, Padula, Smith and a fourth man Medhurst. Medhurst was arrested prior to 18 February, the date of the Suffolk robbery. On 3 March 2000 there was a third Sussex robbery of the Alldays store in Lancing, which the Crown said was committed by Hobden, Padula and Smith. On that day those three were arrested in Jamieson’s car, a blue Vauxhall Cavalier registration number G782 ABP. Jamieson, however, was then in Scotland. The Sussex robberies were separately prosecuted in Lewes, and the trial had not yet taken place at the time of this trial before Judge Beddard in Bury St Edmunds. We mention them because two of the grounds of appeal considered on these appeals relate to the judge’s concern to limit information and cross-examination before the jury concerning Hobden’s alleged involvement in the Sussex robberies. At his subsequent trial in Lewes, Hobden was convicted of the Alldays robbery and of an ancillary count of possession of a firearm with intent, but the jury could not agree a verdict concerning the two earlier ones. 6. We revert to the robbery of the cottage in Suffolk. The evidence on which Hobden and Jamieson were convicted included not only the direct evidence of Padula that he was their accomplice in the robbery and, in Hobden’s case, identification by the victim at a subsequent parade (of which more below), but also a considerable amount of circumstantial evidence. It was not disputed that both Hobden and Jamieson lived in Sussex: Hobden at Lancing and Jamieson near Brighton; and that Jamieson was seen driving his Cavalier with three male passengers in it in Brighton on the afternoon of 17 February, of which one was a man of about 30 and the other two, in the back, were younger. Four men (Hobden, Jamieson and two younger men whom Hobden accepted were Padula and Smith) had later spent the night of 17/18 February together in two rooms at the Butterfly Hotel in Bury St Edmunds, only some one and a half miles by road from the victim’s cottage. There was unchallenged evidence read to the jury from a friend of Jamieson, Mrs Brenda Elsip, that he had telephoned her very early on 18 February to ask her to use her credit card to pay for two rooms at the hotel for him and Jeff (ie Hobden). He said he would pay her back. He told her that they had broken down and were semi-stranded. There was also evidence from the hotel night porter of these arrangements and of Mrs Elsip’s call to the hotel (at 12.51am as was admitted) to confirm her credit card details. He said that most of the talking was done by a man who had supplied identification in the form of a birth certificate in the name of Jamieson and address details (which were Jamieson’s correct details). He said that the men had said that they came from Portsmouth and were in the marines. 7. Jamieson made no comments at interview and gave no evidence at trial, so he never explained what he was doing at the Butterfly Hotel or thereafter. Hobden at interview said he had continued his journey early in the morning in the Cavalier and was back in Sussex by midday. He later admitted that that was a lie, concocted when he was in a state of shock soon after being picked out by the victim at the identification parade (the “first alibi”). At trial he said that he left Bury St Edmunds about 4 or 5 pm and was back in Brighton at around 7 pm (ie at about the time of the robbery), but that the journey was done not in the Cavalier but in a red Astra belonging to someone identified as Archie Andrews (the “second alibi”). (We comment: the first alibi, being linked to the Cavalier, put Hobden in great difficulties, for, as will be seen below, that car was effectively identified close to the victim’s cottage at about 9.30 to 10 am and again at about 7 pm that day.) What had he been doing in Bury St Edmunds? The evidence which embraced his second alibi was as follows. His work involved escorting cash, and on 17 February Jamieson offered him a job. That evening he and Jamieson left Sussex in the Cavalier and drove to the area of Bury St Edmunds, where Jamieson received a call from Padula to say that the money in question was to be collected in Bury St Edmunds and taken to Hull. A little later they came across Padula and Smith at a petrol station. Padula and Smith were in a blue Ford Sierra estate. (The registration number of this car was G775 PCD. It was not disputed that it had been parked outside Hobden’s home in Lancing at 10.30 am that morning. Hobden said that it also belonged to Jamieson, but he was doing some repair work on it. It is another significant car, because a blue Sierra estate was also seen close to the victim’s cottage at about 10.30 am and again at about 7 pm on the day of the robbery. Moreover, at 10.26 pm later that evening, as was admitted, a blue Sierra estate registration number G775 PCD overtook a police car on the A23 at Handcross travelling in the direction of Brighton. Handcross is on a route from Bury St Edmunds to Brighton, 127 miles from the scene of the robbery.) Hobden’s evidence continued to the effect that he and Jamieson drove to the Butterfly Hotel. The younger two had already arrived there in the Sierra. The arrangement was to pick up the cash at the Sugar Refinery at Bury St Edmunds at 11 am the next morning, but that time was put back, and in the event the rendezvous never happened. The four of them met up at a café in mid-afternoon, where they were joined by Archie Andrews, the owner of the red Astra. Hobden wanted to return to Brighton, but Jamieson did not, and in the end he drove himself home, leaving at between 4 and 5 pm, in Andrews’ Astra. He believed that Padula had substituted his name as a party to the robbery for that of Andrews, a man of violence who had threatened Padula. He, Hobden, had himself been threatened by Jamieson, if he did not take the blame. He also said that Jamieson had also told him to concoct an alibi around Mr Jamieson’s alibi and in this connection had given him a piece of paper in the cells at Mildenhall Magistrates’ Court, which he had not read but passed straight on to his barrister (the “note”). 8. One of Hobden’s difficulties was that three shoe prints were found on an envelope at the cottage. One conclusively matched Padula’s trainers. One conclusively matched Smith’s trainers, viz trainers recovered from a bramble patch in Brighton having been thrown on 28 February 2000 by Padula out of a car in which Smith was also travelling: the trainers matched Smith’s shoe size 9. The third almost certainly matched Hobden’s black leather shoes, which he was wearing when he was arrested on 3 March. Hobden accepted that he was also wearing those shoes when he went to Bury St Edmunds. How then did the shoe print get on to the envelope at the scene of the robbery? He did not know, but he said that he had taken a change of clothes with him to Bury St Edmunds and had left his black shoes in a hold-all in the Cavalier, after he had changed into a pair of Caterpillar boots, before returning to Brighton. 9. There was other evidence (apart from Padula) to connect Hobden and Jamieson not merely with the Butterfly Hotel but also, in part via the Cavalier and the Sierra cars, with the cottage. At about 9.30 to 10 am a local couple saw an unattended blue Cavalier parked on the verge close to the cottage. At about 10.30 am the victim came across two strangers walking up his drive. They asked him for directions to Sudbury. He was suspicious, for Sudbury was well marked on signposts all around. He described “man 1” as about 6'1" in height, dark brushed back hair, about 30, polished black shoes. “Man 1” was also identified as the robber with the knife, whose face had been covered with a scarf. “Man 2” was shorter, about 5'10", also aged about 30, light brown hair. (Hobden is 6'4" tall, had short ginger hair at his identification parade and at trial, a missing right little finger, and has lost a bit of one ear. Jamieson is 5'8" tall.) He went with them to their car, a blue saloon, where there was a young man behind the wheel, and they looked at a map together. They drove off. About 20 minutes later, he looked out of his bedroom window and saw “man 1” standing at the porch. There was a conversation through the window: the man said they had had a puncture, and could he use the telephone? The victim refused, but offered a lift, which “man 1” declined. The victim was sufficiently suspicious to get into his own car to go looking for a car with a puncture, but he did not find them. Also about 10.30 am a local coalman saw a blue Sierra, possibly hatchback, G or H registration, near to the cottage with someone in the driver’s seat and three men walking towards it (so four in all): one of the three was about 30 and over 6' tall. Later that evening at about 7 pm, a mother and her schoolboy son were driving down a nearby lane and saw two cars backed into field gateways. The son identified both as blue, and one as a Ford Sierra estate. The mother, being suspicious, drove past again at about 7.10 pm: only one car remained, which had a Christmas tree air freshener attached to its rear view mirror and the letters ABP in its number plate, ie the Cavalier. It was not disputed that when Mr Jamieson bought the car it had a Christmas tree air freshener in that position. 10. Various identification parades were held, but the only identification relied on by the prosecution was that of Hobden by the victim. The hotel night porter failed to pick out Hobden or Jamieson. The local coalman failed to pick out anyone he saw that morning. The victim picked out volunteers on parades attended by Jamieson and Smith. He did however later identify Hobden. That parade took place on 22 May 2000, ie three months after the robbery. The circumstances of the parade were the subject of two voire dires (the second one was held after it emerged for the first time in the course of the victim’s evidence that “man 1” had entered the cottage with a scarf over his face). Complaint was made that the victim’s description of “man 1” did not fit Hobden’s short ginger hair; that the volunteers did not resemble Hobden in age, height, general appearance and position in life; that Hobden, who came from prison, had taken the parade in track suit bottoms and had not been provided with appropriate civilian clothing; that details of the “first description” served prior to the parade were not an accurate statement of the details given by the victim at the police station on the evening of 18 February but an amalgamation of a number of pieces of information provided by the victim in the days following the robbery but even so omitted the “e-fit” prepared by the victim on 21 February; that the inspector conducting the parade did not know that the victim had had three opportunities to identify “man 1” (ie two on the morning as well as the robbery itself) or that “man 1” had been masked at the time of robbery (even though the victim said that he had informed the police that he was); that these matters constituted numerous breaches of Code D; that the parade was confusing for the victim in that he was asked to identify the person who entered his home on the night of the robbery, whereas he purported to identify the person he saw in the morning; that the victim’s identification was not positive because he had said “I think”, which had been omitted from the inspector’s record; that at the second voire dire the victim said he did not see enough of “man 1” during the robbery when he was masked to identify him by sight alone, and that his identification relied on a combination of his two earlier sightings, glimpses during the robbery when the victim was able to peep out of his own blindfold and “man 1’s” mask had slipped for a moment, and an identification of his voice with that of the man he had spoken to twice in the morning; and all in all that the evidence of identification was so unsatisfactory that all evidence of it should have been withdrawn from the jury on classic Turnbull principles. 11. The video of the parade was shown to the jury at the request of the defence. The victim was cross-examined on behalf of Hobden, and was unable to explain why there was no reference in his police statement to the fact that “man 1” was masked when he entered the cottage nor to his recognising his voice. He had told the police that “man 1” in the morning had an “uncultured voice” and in the evening had an “Irish accent”. 12. No complaint is made at all, however, of the judge’s summing up on the question of identification. It included this passage: “You have seen and heard on the video how the parade went…We can re-show that video certainly if you want to, but just to remind you, the final exchange went like this, after [the victim] had walked the line twice and taken quite a long time to do so. He ends up by saying to the Inspector: “I’m pretty certain it’s number 5.” Of course, Mr Hobden was at number 5. The Inspector says: “I must ask you now: can you make a positive identification?” [The victim] says: “Yes, I think 5.” Well, it is a matter for you whether you regard that as a hesitant or a confident identification.” 13. Padula’s evidence naturally involved direct incrimination of both Hobden and Jamieson. He said that he agreed to help with the robbery because he was offered cocaine (there was controversy about whether his supplier was Hobden or Jamieson). The four travelled in convoy in the Cavalier and Sierra to Bury St Edmunds, where they arrived soon after midnight on 18 February and stayed at the Butterfly Hotel. In the morning, they went to case the cottage. Jamieson (at that time in Padula’s evidence called “Mr X”) and Hobden went off and returned with a man (the victim) and he was asked to pass a map to them. That night he and Smith were told to wait outside while the other two went in, and to fetch the Sierra up to the door of the cottage. A few minutes later there were boxes outside the door for loading. He and Smith went in to help with packing and fetching. At first the victim was nowhere to be seen but later he saw Hobden walking him out of sight, with a garment over his head. Hobden was using an Irish accent. They were in the house for some twenty minutes. 14. The judge gave the jury a powerful direction “to exercise considerable caution” in acting on Padula’s evidence “unless you find that his evidence is strongly supported by other evidence in the case”. He pointed out that he had pleaded guilty to a number of robberies, was or had been a cocaine addict, and had yet to be sentenced in circumstances where he knew that it would be in his own interest to give Queen’s evidence. The matters principally relied on by the Crown as supporting his evidence were the ways in which the details of his evidence meshed with the details of other witnesses: for instance concerning the stay at the Butterfly Hotel, the reconnoitring of the cottage in the morning, the events of the robbery itself. 15. There was also evidence of continued association of Hobden and Jamieson, both with each other, and with Padula, and with the two blue cars, and (through an antique dealer) with the proceeds of the robbery, following their return to Brighton. This evidence arose because of police observations. To disguise the existence of those observations from the jury, the results of them were dealt with by admissions. Thus it was admitted that in the afternoon of 19 February, the day after the robbery, Jamieson was driving the Cavalier with Padula as a passenger and Hobden was driving the Sierra: both visited a car sales yard. A few minutes later, at another address, both Jamieson and Hobden were seen carrying cardboard boxes out of a house and into the Sierra. Padula’s evidence was that smaller antiques had been packed into boxes at the cottage. Half an hour later the Cavalier was seen parked outside the home address of the antique dealer in whose shop items from the robbery were subsequently found. A large object covered by a blanket was removed from the car. On 8 March the dealer’s antique shop was searched by the police: in its rear storeroom two old English mahogany knife trays stolen from the cottage’s dining room were found. 16. These appeals have been argued against the background of these facts. We will deal first of all with Jamieson’s two grounds. Ground one is that the judge should have excluded Padula’s evidence in its entirety under section 78 of the Police and Criminal Evidence Act 1984 (“ PACE ”) on the basis that its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. There were three strands to this submission, of which Ms Griffin on behalf of Jamieson put most stress on the first. This was that Padula’s original confession to the police was obtained in such circumstances that it would not be admitted in evidence against him, and therefore should not be relied on against Jamieson. The second strand was that there had not been full disclosure of all matters leading up to Padula’s decision to assist the police, or of the documents generated by the Sussex robberies. The third strand was that Padula used the pseudonym of “Mr X” for referring to Jamieson (whereas he named his other accomplices) at all times until in cross-examination on behalf of Hobden he identified Mr X with Jamieson. It was submitted that this was unfair to Jamieson as the jury could all along identify Mr X with Jamieson for themselves and it indicated a concern on Padula’s part about his relationship with or fear of Jamieson. 17. The first strand, relating to Padula’s original confession, was based on an attempt to render analogous the circumstances which might govern the use of a confession by a defendant against himself (see Code C and section 76 of PACE ) with the circumstances whereby evidence ultimately originating in such a confession could be used by a prosecution witness against his accomplices. In this connection Ms Griffin drew attention to the history of events relating to Padula’s arrest and interviews and subsequent co-operation with the police. He was originally arrested on 3 March 2000 in relation to the Alldays robbery. While in the cells at the magistrate’s court he said that he was scared of going to prison. On his first police interview relating to the Suffolk robbery, on 4 April, he made no comment. On 28 April he stood on an identification parade in relation to the Suffolk robbery and was not picked out. He was then interviewed again and made no comment. In interview he was asked whether he was a bit player or a main player. It was suggested to him that he was a mere lackey, who had assisted in removing the proceeds. He was asked if he was happy to take the blame for this serious offence. Following that interview, he was taken by the two interviewing officers in a police car from Ipswich to Bury St Edmunds, a journey of just under half an hour. In the course of that car journey, he confessed to the Suffolk robbery and implicated Hobden and Jamieson. On 7 June in a further police interview he repeated the confession on tape. He said that until the police told him on 28 April about how the victim had been threatened with a knife, which he said was a disgusting way to treat an old man, he did not know of these details. Over six months later, after he had pleaded guilty to his various offences, he made a police statement on 21 December, describing Jamieson as “Mr X”. 18. Ms Griffin submits that the original confession in the police car on 28 April was obtained in breach of Code C (no caution, no access to legal advice, no appropriate adult present, no contemporaneous recording, nothing shown to him for his agreement and signature) and under pressure from the police who had asked him at his immediately previous interview if he wanted to take the blame for a serious offence. It was conceded by the prosecution in argument at trial that in such circumstances they would not have sought to rely upon such a confession against Padula. Ms Griffin also submits that the vices of that original confession continued to taint Mr Padula’s later evidence. In this connection she relied on R v. McGovern [1990] 92 Cr App R 228 at 234 where Farquharson LJ said: “…when an accused person has made a series of admissions as to his or her complicity in a crime at a first interview, the very fact that those admissions have been made are likely to have an effect on her during the second interview. If, accordingly, it be held, as it is held here, that the first interview was in breach of the rules and in breach of section 58, it seems to us that the subsequent interview must be similarly tainted.” 19. However, Ms Griffin was able to cite no authority for her submission that if a confession were unreliable as against a confessing defendant it would be similarly unreliable by way of Queen’s evidence against accomplices. She submitted simply that a confession which was unreliable and could not fairly be admitted in one set of circumstances remained unreliable and unfair in other circumstances too. 20. We are unable to agree with that submission, for which no authority was cited to Judge Beddard or to this court. Section 76 , not cited directly rather than by way of analogy, is dealing with conditions for admission of a confession made by an accused person “against him” ( section 76(2) ). McGovern was similarly concerned with the confession of a defendant and the direct application of section 76(2) . Moreover, the second interview which was held to be tainted by the first occurred on the very next day. In the present case, the witness statement which formed the basis of Padula’s evidence at trial was given more than eight months after the occasion on the car journey, after he had had full opportunity for advice from his lawyers, and after he had pleaded guilty to the robberies for which he had been arrested including the one in Suffolk. We do not regard Padula’s evidence as tainted by any breaches of the Code in relation to the conversation in the car. It was in any event plainly evidence given voluntarily, whose value it was a matter for the jury to assess. 21. Of course, it is of concern that an accomplice who turns Queen’s evidence may do so not only to gain the advantage of a guilty plea but also to obtain the further advantage of having assisted the prosecution. In any event the evidence of accomplices is typically subject to a cautionary warning. In the present case the judge gave the jury a strong warning to which we have referred above and which brought directly to the jury’s attention the self-interest that Padula had in assisting the police and the need to look for supporting evidence. 22. No one at trial disputed that Padula was telling the truth so far at any rate as concerned his own guilt of involvement in the robbery. The question was as to the involvement of Hobden and Jamieson. The present ground of appeal is argued only on behalf of Jamieson, but it raises the valid question as to why, apart from self-interest, Padula’s evidence so far as it implicated Jamieson and Hobden might be unreliable. The prosecution of course are not obliged to call a witness whom they do not believe to be a witness of truth. At trial Ms Griffin “positively asserts that Padula is telling the truth in saying that Hobden was involved” (summing up at 51C), and Hobden did not suggest that he was lying in saying that Jamieson was involved. Why should he tell the truth about one and lie about the other? The prosecution asked this question at trial, and it is a valid one. If Hobden was not involved, but Padula told the police he was, how would that help Padula if Hobden came up with a good alibi, which, since on this hypothesis he was not involved, he was quite likely to be able to do? Similarly with Jamieson. 23. As for the second strand concerning discovery, the main complaint relates to discovery which was protected by Padula’s legal professional privilege. There can be no valid criticism on that score. A subsidiary complaint relates to incomplete discovery of material in the hands of the Sussex police relating to the Sussex robberies, in particular in relation to the question as to why Padula may have wanted to give evidence against Jamieson. Of course the Sussex robberies implicated Hobden, but not Jamieson, but any material which would undermine Padula’s credibility would have been of equal concern to the prosecution as to Jamieson’s defence. Therefore both the disclosure officer in Suffolk and prosecuting counsel at the Suffolk trial, Mr Bate, who also appears on this appeal, reviewed all the Sussex material including the unused material and were in direct contact with their respective counterparts in the Sussex matter. On the second day of the Bury St Edmunds trial Ms Griffin gave to Mr Bate a note of questions she had in relation to Padula, which Mr Bate answered in a 22 page fax within three days and in a further response two days later, all before Padula was called. The judge was satisfied when this matter was argued before him immediately prior to Padula taking the stand that even if all the unused material in Sussex had not been disclosed, nevertheless there had been substantial disclosure of the Sussex material and the defence were at no disadvantage in cross-examining Padula. He said that he would warn the jury of Padula’s self-interest in giving evidence for the Crown, which he certainly did, and added that if Padula might have reasons of his own for wanting to see either defendant wrongly convicted, their counsel had presumably been put in possession of the relevant material or information. Ms Griffin submits that complete disclosure is inviolable, but neither then nor now has anything but speculation been raised as to anything which Mr Bate may have missed. 24. The third strand concerned the use, until the direct question was asked on behalf of Hobden, of Padula’s “Mr X” for Jamieson. We see no problem about that. Padula confirmed it was Jamieson. When asked why he had used the pseudonym, he said: “I did it because I did. I don’t have no reason. I have people to think about, my family.” The judge told the jury: “But do not read too much into that, one could put all different shades of meaning on that.” 25. We have taken account of all these submissions on Jamieson’s first ground. The judge considered them for himself, and no error of law has been shown in his careful ruling. In our judgment he was right to reject the application to exclude Padula’s evidence. There was nothing unfairly prejudicial in admitting it. 26. We turn therefore to Jamieson’s second ground. This is that the judge should not have limited cross-examination about the Sussex robberies. The judge was concerned in Hobden’s interest that he should not be tarred, at a time when he was still awaiting trial in respect of the Sussex matters, with mere evidence of propensity to rob. There was an added difficulty in that Hobden was arrested on 3 March in Jamieson’s Cavalier (Hobden was driving) together with Padula and Smith in connection with the Alldays robbery earlier that day. Jamieson had an interest in showing that his car, the Cavalier, was used in his absence (he was in Scotland on 3 March) by Hobden, Padula and Smith. If, therefore, there were only three robbers at the Suffolk cottage, the suggestion made by Ms Griffin (of course Jamieson gave no evidence) was that they were Hobden, Padula and Smith (Medhurst, who had been involved in the earlier Sussex robberies, having been removed from the scene by his arrest prior to 18 February). If there were four robbers, then the suggestion was that the fourth was Andrews, whom Hobden put on the scene, and that Padula had substituted Jamieson for Andrews. Hobden’s case was that Padula and Jamieson had agreed to name Hobden in place for Andrews, on the somewhat illogical basis that Jamieson had a longer criminal record than Hobden. Hobden also said that Jamieson supplied cocaine to Padula and Smith to involve them in crime (Padula said that Hobden was his supplier). 27. The judge sought to reconcile the interests of Hobden and Jamieson respectively by permitting evidence to be drawn out that Padula and Smith were arrested together with one other unnamed person in Jamieson’s Cavalier on 3 March when Jamieson was in Scotland, but otherwise not to permit Jamieson to cross-examine about Hobden’s involvement in other robberies, on the basis that that was irrelevant and undesirable. Only Padula’s credit could be attacked by reference to the Sussex robberies. 28. Ms Griffin submits that this ruling was wrong in law and unfair to Jamieson. On his behalf she was prevented from cross-examining as she would have wanted as to Hobden’s leadership of the Sussex gang, his supply of cocaine to the youngsters involved, the circumstances of Hobden’s arrest in the Cavalier on 3 March, the discovery of weapons in the car, the recovery of a knife found at Hobden’s home that had been used in a Sussex robbery, and the arrest in this context of Medhurst, enabling the submission to be made that the original Sussex team of four had been reduced to three, each of whose shoe print was recovered from the scene of the robbery at the cottage. Ms Griffin also submits that the judge was wrong to reject a subsequent application to discharge the jury so as far as concerned Jamieson, so that he could stand trial separately after the Sussex trial when he would not be restricted in putting his defence by potential prejudice against Hobden. She says that discharging the jury was the only way Jamieson could have secured a fair trial in the circumstances. 29. Mr Bate seeks to support the judge’s ruling as to the extent of cross-examination in that it enabled the essence of Jamieson’s defence to be put, while at the same time going no further in prejudice to Hobden than was strictly necessary. As for the supplying of cocaine, Ms Griffin was permitted to ask questions of Padula to show it was Hobden who supplied him; moreover there was an admission that Padula had told his GP that Hobden had supplied him. The judge reminded the jury of this evidence. As for severing Jamieson from the trial, Mr Bate submits that justice not only permitted the maintenance of a joint trial but demanded it. 30. In our judgment, there is a distinction to be drawn here between cross-examination of a prosecution witness, such as Padula, and cross-examination of a co-defendant, such as Hobden. As for the former, defence counsel has the right to cross-examine on any matter relevant to his defence, whether or not it causes prejudice to his co-defendant. If, therefore, the evidence which Ms Griffin sought to elicit from Padula concerning the Sussex robberies, and Hobden’s arrest in the Cavalier with Padula and Smith, and Medhurst’s prior role, were relevant to Jamieson’s defence, which we think it was, then the judge had no discretion to exclude it. Section 78 applies to evidence which the prosecution seeks to adduce, not that which the defence seeks to adduce. Thus in R v. Myers [1998] AC 124 at 133F/G, Lord Slynn of Hadley approved the statement of Devlin J in R v. Miller [1952] 2 All ER 667 at 669, 36 Cr App R 169 at 172, that – “No such limitation applies to a question asked by counsel for the defence. His duty is to adduce any evidence which is relevant to his case and assists his client, whether or not it prejudices anyone else” and added (at 134A) – “…it seems that relevance is the appropriate test even if the admission of relevant evidence at the suit of one defendant will cause prejudice to the other accused.” 31. Lord Hope of Craighead (at 145C/D) said this: “It is beyond question, as a general rule, that an accused person has the absolute right to lead all relevant evidence in his defence. He is not subject to discretionary control by the court, which has no power to exclude such evidence on the ground that it may prejudice a co-defendant or because it was obtained by improper or unfair means. This point was recently reaffirmed in Lobban v. The Queen [1995] 1 W.L.R. 877 . As Lord Steyn explained, at p. 889B, the principled objection to the argument that there is a discretion to exclude such evidence is that it conflicts with a defendant’s absolute right, subject to considerations of relevance, to deploy his case asserting his innocence as he thinks fit. Thus the trial judge does not have a discretionary power, as between co-defendants, to exclude relevant evidence on the ground that he is choosing the course which involves the lesser injustice as between the defendants.” 32. In the present case the judge seems to have thought that evidence elicited from Padula about Hobden’s involvement in the Sussex robberies went only to propensity. But it seems to us that it also and primarily went to the defence that Jamieson wished to run, that Hobden was the leader of a gang, whom he supplied with cocaine, and who committed robberies in Jamieson’s absence and even using his car. 33. Where, however, a defendant wishes to cross-examine his co-defendant, he is subject to the terms of section 1(f)(iii) of the Criminal Evidence Act 1898 , viz – “A person charged in criminal proceedings who is called as a witness in the proceedings shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than one with which he is then charged, or is of bad character, unless… (iii) he has given evidence against any other person charged in the same proceedings.” 34. When, however, a defendant has given evidence against his co-defendant, the right of the co-defendant to cross-examine is again unfettered, subject to the test of relevance: Murdoch v. Taylor [1965] AC 574 , Myers at 140C/D. In the present case, it seems to us that Hobden had “given evidence against” Jamieson, when he said that he had been threatened by Jamieson that he “would be put in the shit if he didn’t take the blame” and when he also gave evidence about the note which he said Jamieson passed him in the cells at Mildenhall magistrates court to help him concoct an alibi around Jamieson’s alibi. Therefore, for that reason too, we think that Jamieson would have been entitled to cross-examine Hobden about the Sussex robberies: although the right to do so under section 1(f)(iii) was not invoked by Ms Griffin during trial. 35. We think therefore that the judge erred in his ruling in limiting cross-examination to the extent that he did. We will consider below, after dealing with Hobden’s grounds of appeal, the question of safety and the linked question of severing Jamieson’s trial. 36. Hobden has been given leave to appeal on his grounds 7 and 8. Ground 7 relates to the note passed to him by Jamieson at Mildenhall, to which Hobden referred in his evidence in chief. The question subsequently arose as to whether the note could itself be produced in evidence, not, as is submitted by Mr Atkinson on behalf of Hobden, as evidence of the truth of its contents, but as “real evidence”, to show what it was that Jamieson had passed to Hobden. The judge ruled that the note was inadmissible and maintained that view, even though the jury asked the judge if they could be shown it. He did so, on the basis of the submission of the Crown that (a) it had not been shown that Jamieson had written the note and (b) Hobden had said in cross-examination that he had not read its contents. Mr Atkinson submitted, however, that the note was admissible and would have supported Hobden’s case. 37. In our judgment the note was admissible. We do not agree with Mr Bate’s submissions supporting the reasoning of the judge. He sought to rely on the principles discussed at Archbold 2003 at para 8-135 relating to the strictness of the rules for proving authorship of a document, and on R v. Windass [1989] 89 Cr App R 258 , which decided that a document admitted as against one defendant as its author could not be used to cross-examine another co-defendant, who was not its author. That reasoning would have been all very well if it had been a question of seeking to rely on the note for the truth of its contents, in which case it would have been hearsay. Where, however, it was said to be relied on as “real evidence” (see Archbold 2003 at para 9-7), we think that the test is simply, as there stated, whether there is a sufficient foundation to link the document with Jamieson. We think that that test was here met in circumstances where the evidence was that Jamieson handed the note to Hobden for the purposes described by Hobden, and where the note’s contents show that it is written in the first person ( sc Jamieson), refers to “my car” ( sc the Cavalier) and to “JH” (ie Hobden), and amounts to a complete template for putting Archie Andrews on the scene at the Butterfly Hotel plus an alibi for Jamieson (“I then left you”). 38. Having said that, we are however at a complete loss as to what use Hobden really intended to put the document to. It seems that Hobden’s trial counsel, Mr Fullerton, may have been similarly in some uncertainty about the matter, for we are told that at the time when the jury asked to see it, he objected: and that it was only subsequently that he seems to have come round to the view that he would prefer it to be in. On the appeal, Mr Atkinson was not really in a position to explain how its admission would have been used, beyond what was already achieved by Hobden’s evidence in chief, viz to cast Jamieson as the villain. We think that if it had been produced, it would have been disastrous to both co-defendants: as a conspiratorial attempt to share a fabricated story seeking to give to their presence at the Butterfly Hotel together with Andrews (who is said to have shared a room there with Padula and Smith) an innocent explanation, namely to rescue Jamieson’s broken down Cavalier which Hobden is supposed to have let Andrews use and which Andrews is supposed to have taken to Bury St Edmunds. We therefore think that in the end there is nothing whatever in this ground to affect the safety of Hobden’s conviction. 39. Hobden’s ground 8, on which he also has leave, takes us back to the question of the Sussex robberies. Whereas Jamieson’s complaint is that he was not given fuller or free range to cross-examine Hobden about them, Hobden’s complaint is that, such was the prejudice to him of even the limited information which did emerge about those robberies, his trial should have been severed from that of Jamieson. In this connection the ultimate focus of the complaint was that, although the judge sought to disguise from the jury the fact that Hobden had been arrested in Jamieson’s Cavalier on 3 March 2000 in the company of Padula and Smith as a result of a robbery in Sussex, the jury could nevertheless have put two and two together from the information that they did have. Thus the Crown had opened, and it was an admitted fact, that Hobden had been arrested on 3 March. Ms Griffin for Jamieson had later cross-examined Padula to the effect that he had been involved in and had pleaded guilty to other armed robberies in Sussex involving the use of firearms, knife and baseball bat; that he and Smith had been arrested in Jamieson’s Cavalier on 3 March by armed police, that Padula was a passenger in the front and Smith in the back, that a third person had been driving, and that a knife and gun were found in the car; and that on 3 March Jamieson was in Scotland, but Hobden was in Sussex. It is submitted that such cross-examination was in breach of the judge’s ruling and that in any event the eliciting of this evidence deprived Hobden of a fair trial. An application was made to sever the trial of Hobden, but was refused by the judge. 40. This ground is linked with a further ground, ground 9, on which Hobden makes a renewed application for leave to appeal. This ground arises from the fact that immediately upon an adjournment in the summing up, as the jury were filing from the court room, Jamieson created a disturbance, the earlier part of which is on the transcript and the latter part of which can be reconstructed from submissions on the transcript which then took place in the absence of the jury. The transcript reads: “Jamieson: Excuse me. Ms Griffin: Mr Jamieson, sit down. Jamieson: I have to give evidence. Ms Griffin: Sit down. Judge Beddard: I will rise now. If there is any point…” The tape was then turned off, but later, in the absence of the jury, the transcript reads: “Mr Fullerton: …your Honour…I believe you were through the door when Mr Jamieson became more vocal and he called out to his counsel and stated: “I have to give evidence. Lynn,…I’ve got to give evidence.” He then commented: “They’ve used my car on other robberies; it’s unbelievable.” This is as jurors are filing out, some still here. Clear as a bell…In my submission, what occurred in the presence of the jury was nothing short of a deliberate and calculated attempt to compromise either this trial, or lay the grounds for an appeal on the basis of safety of conviction, either on the basis that a retrial be ordered with some possibility of severance. In any event, whatever his motivation, it was clearly deliberate. It has undoubtedly prejudiced not Mr Jamieson but Mr Hobden.” 41. Mr Fullerton then made an application that the trial be abandoned in respect of Hobden. Ms Griffin resisted that application and submitted: “…I was telling him to be quiet over the top of it. We don’t know how much the jury heard. I cannot even say with any certainty what words Mr Jamieson was using as I heard. The one thing that we can say with certainty, if Mr Fullerton is right that what he said was: “They’ve used my car in other robberies”, well, that is not telling the jury anything that they don’t know because it is clear on the evidence that Mr Padula and Mr Smith have used his car – “Judge Beddard: And were being arrested for robbery on the day that Padula was arrested. Ms Griffin: Yes, when he was in Scotland, so – Judge Beddard: And we have been at pains not to say who else was in the car.” 42. The judge refused Mr Fullerton’s application to discharge the jury in Hobden’s case. He was prepared to accept Ms Griffin’s assurance that the outburst was not deliberately calculated to bring the trial to a halt. He ruled: “What I will do is tell the jury that there was a bit of an outburst just as I rose, Mr Jamieson has apologised about it; and that obviously they pay no attention to anything they hear in outburst from the dock.” 43. On the jury’s return he said to them: “…you may remember that Mr Jamieson was a bit upset and started shouting out from the dock. He was asked by his counsel to be quiet. He has through her asked me to apologise to you for that. Trials are a strain for everybody concerned in them, obviously. I am sure you will pay no attention to the words of somebody just in an emotional state speaking from the dock.” 44. We do not think that there is merit in either of these grounds. We have already said, in relation to Jamieson’s second ground, that he should not have been restricted in his cross-examination of Padula on the Sussex burglaries. Mr Hobden received the benefit of those restrictions. We have also said that Mr Hobden could in any event have been cross-examined directly under section 1(f)(iii) of the 1898 Act . In any event, we do not think the jury would have assumed that Hobden was the driver of the Cavalier on 3 March: even if they had speculated on it, we think they would have concluded that if he had been the driver, they would have been told of it. As for Jamieson’s outburst, we agree with the judge that it went no further than the evidence already before the jury. We agree with the way in which the judge dealt with it. 45. We therefore turn, briefly, to the other grounds of appeal on which Hobden seeks to renew his application. Grounds 1, 2, 4, 5 and 6 concern the identification evidence relating to him (see paras 10/11 above). Ground 1 is that the judge was wrong to rule that the victim did not have to give evidence on the first voire dire to clarify matters related to the identification. Ground 2 is that the judge wrongly exercised his discretion following the first voire dire in ruling that the identification evidence was admissible despite what were said to be breaches of the Code. Ground 4 is that the judge wrongly exercised his discretion in continuing to rule that the identification evidence was admissible after the victim’s evidence that “man 1” had been masked on entry into the cottage; and ground 5 is that the judge wrongly exercised his discretion in refusing to discharge the jury in the light of the victim’s evidence about the masked “man 1”. Grounds 4 and 5 relate to applications made before the second voire dire at which the victim did give evidence. Ground 6 is that the judge wrongly exercised his discretion in corresponding applications to exclude the identification evidence and to discharge the jury after the victim had confirmed in the second voir dire his evidence about the masked “man 1” and how he had set about his identification. At the end of the day Mr Atkinson accepted that the essence of his renewed applications in this connection could be summed up under ground 6 as amounting to the submission that in all the circumstances the victim’s identification of the masked intruder was so poor, so brief, and altogether so unsatisfactory, that it should not have been left to the jury, and that having been opened to the jury, they should have been discharged. 46. We see no merit in these applications and we refuse them. The judge had ample opportunity to consider these matters carefully, as he did, in soundly reasoned rulings. No error in his reasoning is identified: it is simply said that he was wrong. He did not accept that any breaches of the Code had occurred, or that if they had, it would have made any difference. Mr Atkinson was unable to tell us what difference the breaches complained about would have made. The jury were able to see the video of the identification parade for themselves. The victim was no doubt well cross-examined on the points made about the security of his evidence. In truth he had more than an adequate opportunity to identify the robber. He had always identified “man 1” as someone he had seen on three occasions: the first two in the morning, when he had every opportunity to mark the man, of whom he was always suspicious, and the third in the evening, when his opportunities for identification were no doubt less favourable, but he was seeing, and hearing, the man for the third time. Discrepancies, such as the ginger hair, were well in the jury’s mind. 47. Ground 3 relates to the admissions concerning to the post robbery sightings in Brighton, and is that the judge erred in exercising his discretion by ruling that evidence of such sightings was admissible. The submission is that the admissions were only made because otherwise evidence of the police surveillance which had led to those sightings would have been permitted by the judge’s ruling. As it was, the admissions were highly redolent of such surveillance and thus unfairly prejudicial. We see no merit in this ground either. We regard this evidence as strongly probative of guilt and can see no error in the judge’s exercise of his discretion. It was he who suggested, rightly we think, that it would assist the defence if the matter was dealt with by admissions. 48. We have already dealt with ground 9. Grounds 10, 11 and 12 do not widen the scope of the grounds already dealt with, but seek to express them under the headings of article 6(1) of the ECHR and the requirement of a fair trial, the concept of equality of arms as between the two co-defendants, and the concept of safety. So far as Hobden is concerned, they take none of the matters already discussed any further. 49. In the case of Jamieson we have held that the judge had erred in restricting cross-examination regarding the Sussex robberies and said that we would visit the question of safety at the end of this judgment. We turn, then, finally to that question, which we will reconsider in the case of Hobden as well, seeing that we have also held that he should have been allowed to produce the note as real evidence (see paras 37/38 above). In that context we will also consider the fairness of this joint trial, bearing in mind Jamieson’s submission that the trial should have been severed. 50. In our judgment the convictions of both appellants are entirely safe. The evidence against Hobden was overwhelming. In his case Padula’s evidence was supported by the victim’s identification of him as “man 1” and by the discovery of his shoe print at the scene. He was present at the Butterfly Hotel with the other three, whom he did not dispute had committed the robbery; and he continued to be associated with Padula and Jamieson in Brighton on the very next day and in circumstances which connected him with the proceeds of the robbery. He admitted that his first alibi was false, and his second alibi and his explanation of his presence at Bury St Edmunds, quite independently of the direct evidence against him which of course made him part of the robbery, were wholly unrealistic and presented grave difficulties in themselves. Although he should have been permitted to produce the note as real evidence, it would have been disastrous for him if he had. 51. In Jamieson’s case, the prosecution lacked an identification and a shoe print, but in all other respects the evidence against him was damning. There was no good reason for Padula to lie about Jamieson’s involvement, and it would have been very dangerous for him to have done so. He was obviously not lying about Hobden. Jamieson’s presence at the Butterfly Hotel in association with the others, who his defence positively asserted had committed the robbery, was entirely unexplained by him, and to the extent that it was explained as part of Hobden’s second alibi, that was a story which would have harmed rather than helped him. In his case too there is the firmly probative evidence of the Brighton sightings. He gave no interview and no evidence. This is the context of the judge’s error in not permitting him to develop his case that he was not involved in the Sussex robberies, whereas Hobden and the other three had been. Nevertheless, the critical evidence that Padula and Smith had been committing robberies in Sussex, and had done so on an occasion with the use of his car, when he had been in Scotland, was before the jury. There was no suggestion that he was involved in the Sussex robberies. What Jamieson lacked was further evidence against Hobden; but whereas that might have been material (but unnecessary) if there was only one further slot to fill in a total of only three robbers, there was perfectly good evidence of four robbers. There was convincing evidence of full association with Hobden on this occasion, and no evidence from Jamieson to explain it. We therefore conclude that his conviction is also entirely safe. 52. In these circumstances the judge can be in no way faulted for declining to sever the trials of Hobden and Jamieson. He rightly considered that their trials should be joint even though he sought, wrongly in our view, to give Hobden protection against the prejudice of exposure on the Sussex robberies. As has often been said, the jury are entitled in the public interest to see such matters in the round. And even though the judge made the fact of joint trials a reason for wrongly limiting cross-examination on behalf of Jamieson, we have concluded that that error can in no way affect the safety of Jamieson’s conviction. 53. In conclusion, these appeals are dismissed and Hobden’s renewed applications are refused.

```yaml citation: '[2003] EWCA Crim 193' date: '2003-02-07' judges: - LORD JUSTICE RIX - MR JUSTICE MITTING ```

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Neutral Citation Number: [2018] EWCA Crim 856 No: 201505651 B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 27 March 2018 B e f o r e : LADY JUSTICE HALLETT DBE (VICE PRESIDENT OF THE CACD) MR JUSTICE PHILLIPS MRS JUSTICE MCGOWAN DBE R E G I N A v JOHN PHILLIP MCALEER Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Fleet Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) 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. Mr S Mayo QC and Mr W Aleeson appeared on behalf of the Applicant Mr J Price QC and Ms A Evans appeared on behalf of the Crown J U D G M E N T (Approved) THE RE-TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY THIS JUDGMENT IS NO LONGER SUBJECT TO REPORTING RESTRICTIONS PURSUANT TO S.4(2) CONTEMPT OF COURT ACT 1981. IT REMAINS THE RESPONSIBILITY OF THE PERSON INTENDING TO SHARE THIS JUDGMENT TO ENSURE THAT NO OTHER RESTRICTIONS APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT RELATE TO THE IDENTIFICATION OF INDIVIDUALS. THE VICE PRESIDENT: Background 1. On 20 November 2015, at the St Albans Crown Court, before Her Honour Judge Catterson, the applicant was convicted by a majority of 11 to 1 of an offence of attempted murder. On 1 April 2016, Her Honour Judge Catterson sentenced him to an extended sentence of 20 years, comprising a custodial term of 15 years' imprisonment and an extension period of 5 years. 2. His application for leave to appeal against conviction and to rely on fresh evidence, pursuant to section 23 of the Criminal Appeal Act 1968 , has been referred to the full court by the single judge. 3. Represented by fresh counsel, Mr Simon Mayo QC, he now pursues one ground of appeal based on an alleged jury irregularity. The facts 4. Late in the evening of 29 June 2015, the applicant and his girlfriend, Danielle Hammond, went with friends to the applicant's sister's flat. It was on the fourth floor of a residential building and had a balcony to the front of the building. Most present had drunk a lot and been taking drugs. An argument took place between the applicant and Danielle Hammond in the hallway. Jake Hulse heard a loud thud and went out to the hallway to find the Ms Hammond lying on the floor. The applicant was trying to pick her up and she was crying. He and a friend ushered the applicant away and told him to apologise to Ms Hammond. The applicant went to the her and they were initially in the front room together. They later moved out onto the balcony and shut the balcony door behind them. 5. Mr Hulse heard the balcony door slam. He walked into the front room and saw Ms Hammond with her back to the balcony railings. Her elbows were propped on the railings. According to Mr Hulse, the applicant took one step back into the front room from the balcony. Ms Hammond spoke, causing the applicant to spin round as if to hit her. She raised her leg to protect herself, the applicant grabbed her leg and shoved her over the balcony. The applicant looked over the balcony, turned and walked back in the flat. He told a witness in the front room, "Danielle jumped". The witness told him that he had seen what he had done and the applicant became hysterical. 6. Ms Hammond sustained serious injuries and did not give evidence at the trial. SMITH BERNAL WORDWAVE 7. The Crown case was that the applicant had deliberately forced Danielle Hammond over the balcony with the intention of killing her. The prosecution also relied, apart from the evidence of Mr Hulse and others at the scene, upon the evidence of two earlier incidents in June 2015 which they said indicated the applicant had been physically abusive towards Ms Hammond in the past and demonstrated a propensity for him to abuse her and for her to be reluctant to complain. 8. The defence case was accident and a denial of intention. The fresh evidence of a possible jury irregularity 9. The jury irregularity came to the attention of the authorities when a few days after the verdict one of the jurors, Ms CA, emailed the trial judge with her concern about members of the jury researching the case and the applicant online. Cambridgeshire Police conducted an investigation in relation to potential juror offences under the Juries Act 1974 . Statements were taken from all the jurors and one juror, Mr MD, was interviewed under caution. He denied researching the case on the internet and no charges were brought against him. None of the nine other jurors knew of any internet research. We must focus on the statements of Ms CA, the jury foreman Mr JP and another juror Ms JB. Ms CA 10. The investigation established that during her time as a juror CA discussed the case with a friend who was not a juror, in breach of the judge's direction. She made it clear to the friend she would not convict and was having a battle with her fellow jurors. They discussed her tactics. Soon after the verdict she was in touch with the applicant's brother and his partner, Lauren Wiseman. At that time, she was complaining about the conduct of her fellow jurors but appeared to be focusing on allegations of bullying. CA got in touch with the applicant's solicitor and was advised to contact the court. She emailed the court on 26 November 2016, claiming that she knew "some jury members had Googled the case and the defendant. Some were very knowledgeable about Mr McAleer's previous convictions. This worries me that the decision made by some of the jurors could have been swayed by the information obtained by them independently". 11. She was interviewed by the police on 15 December 2015 and was less than frank with them about her conduct with members of the applicant's family and how she knew the name of the applicant's solicitor. 12. In a statement dated 26 January 2016, she claimed that during a break in the trial one juror declared, "He's got a criminal record as long as his arm. He needs to be thrown under the bus", that another juror fell asleep and had to be woken by a member of court staff and also during the jury deliberations one juror declared, "Oh yes, when I saw it on the BBC news website". That juror was reprimanded by the foreman. 13. We were invited by Mr Mayo to hear from CA with her examination confined to the issue of whether she heard a fellow juror speaking about the result of his research into the applicant's antecedent criminal history. It was common ground that great care would be necessary if we agreed to this course so as not to trespass into the jury's deliberations. 14. The importance of observing the common law rule that prohibits investigating jury deliberations was confirmed by the House of Lords in the R v Mirza [2004] 2 Cr App R 8 . However, the decision in Mirza and paragraph 4 of a subsequent decision of this court in R v Thompson [2010] 2 Cr App R 27 indicate that the rule is subject to two narrow exceptions: "The first arises if it emerges that there may have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence ... The second exception arises in cases where extraneous material has been introduced into the jury deliberations ... Examples are provided by earlier decisions of this court. They include telephone calls into or out of the jury room, papers mistakenly included in the jury bundle, discussions between jurors and relatives or friends about the case, and in recent years, information derived by one or more jurors from the internet ... Where the complaint is made that the jury has considered non-evidential material, the court is entitled to examine the evidence (possibly after investigation by the CCRC) to ascertain the facts." 15. It is said that this case falls into the second exception. 16. However, given the very thorough police investigation, the wealth of material they have produced and given the obvious comments that could be made about CA's accounts on the papers, coupled with a concession made by Mr John Price QC, who now represents the prosecution, as to the effect of JB's account, we decided this morning it was not necessary to hear from CA. 17. Ms JB 18. JB informed the court that CA herself had looked up the applicant and the witness Mr Hulse on Facebook. She also volunteered that during a tea break with another juror called MD, he told her that the applicant had a conviction for breaking a man's jaw. She informed MD that it did not surprise her to learn the then defendant had been in trouble with the police as a result of evidence adduced in the trial including the fact the applicant had admitted being banned from the town centre. She told him in direct terms that what he was saying was irrelevant; she intended to focus solely, as the judge had directed them to do, on the evidence called in the trial. She then described the very methodical and fair way in which she says the jury approached its task of deciding the case. Mr JP 19. JP was the foreman who facilitated the jury deliberations and he confirmed JB's account of their methodical approach to an analysis of the evidence and the arguments. SMITH BERNAL WORDWAVE He accepted that towards the end of their deliberations as they struggled to reach a unanimous verdict there was a degree of frustration at CA's behaviour. It seemed to the other jurors that she was obviously determined to acquit come what may. He also heard MD express his frustration at what was happening and MD explained that he had come across a news article on the case on the BBC News website to confirm just how serious the matter was. JP told MD that he had been wrong to look at the article. JP and the others jurors were taken aback at what MD had said but felt that no harm had actually been done. Appeal 20. In the light of that material and the concession made by the Crown, it is not in dispute that in flagrant breach of the trial judge's express directions, one juror, MD, carried out research about the applicant and discovered information about his criminal record. The investigation has established that this information was disseminated to at least two other jurors: JB and CA. The improper disclosure to a jury of a defendant's previous convictions is regarded by this court as a grave irregularity - see, for example, R v Brandon 53 Cr App R 466, where a comment made by a jury bailiff suggestive of the defendant's previous convictions was regarded as so serious as to require the conviction to be quashed. 21. Information that the applicant had a previous conviction for serious violence whereby he had fractured another person's jaw in an unprovoked attack was highly prejudicial. There was, Mr Mayo asserted, therefore a very high probability that being privy to such information would impact adversely on a juror's judgment of the defendant and his actions. It is extremely difficult, Mr Mayo argued, for this court now to analyse the extent of any impact upon the jury deliberations without encroaching on the common law rule endorsed in Mirza . 22. When considering JB's assertion that the disclosure of the information had no impact on her personally, he invited us to be alert to two matters: (1) JB failed to bring the misconduct of a fellow juror to the attention of the judge. This fact, consciously or not, is likely to have led her to seek to minimise the importance of the event to mitigate her failure. (2) To accept that the information may have affected her judgment would involve her also accepting she had not been faithful to her oath to decide the case solely on the evidence presented in court. Consciously or not, there would be an obvious tendency for someone in her position to deny the true impact that the disclosure had had on her. 23. Mr Price invited us to add a third factor to our consideration or her account, namely that she was not in any way forced to disclose the conversation with MD and had she not done so, this court would have been none the wiser. 24. As far as MD is concerned, other than the foreman's evidence that suggests he was convinced of the applicant's guilt and was frustrated at CA's behaviour, we know nothing of the possible impact upon him. 25. Furthermore, Mr Mayo submitted the prejudice the applicant would inevitably suffer through the introduction of the extraneous information was all the greater because the judge did not give the jury a bad character direction tailored to this particular evidence. She gave them a bad character direction directed at the alleged propensity evidence but nothing about this particular conviction. Had she done so, it would have provided, Mr Mayo submits, significant safeguards against the jury using the evidence improperly. 26. Defence counsel, similarly unaware of the fact the extraneous material had been introduced, was deprived of the opportunity to seek to set the conviction in context and to advance argument as to why it was not relevant. In this regard, we were invited to note that Ms Evans, who had prosecuted at trial, had applied to admit the evidence of propensity but had deliberately not sought to adduce the defendant's previous conviction through the bad character gateways of the Criminal Justice Act 2003 . The applicant's previous convictions were not, as acknowledged by the Crown, relevant to any matter in issue or probative. 27. Mr Mayo placed emphasis on this court’s repeated recognition of the importance of the trial judge giving a jury an appropriate direction when evidence of a defendant's bad character has been admitted. The direction must be crafted to meet the needs of the individual case but a warning against attaching undue weight to the evidence will always be an essential component. This is consistent with observations of the then Vice President, Rose LJ, in R v Edwards [2006] 1 Cr App R 3 at paragraph 3. 28. Mr Mayo posed a situation for us in which the prosecution adduced bad character evidence during a trial but the trial judge had failed to any give direction as to how the jury should approach it. In this event, he described the lack of directions as a serious deficiency and, in his submission, such a deficiency would render a conviction unsafe. He gave as an example the decision in R v Sullivan [2015] EWCA Crim 484 . 29. Finally on this particular aspect, Mr Mayo reminded us of the observations of Judge LJ (as he then was) in R v Karakaya [2005] 2 Cr App R 5 to the effect that accessing extraneous and prejudicial material contravened two fundamental principles of justice. He stated at paragraph 24: "It is easy, but superficial, to dismiss these rules as purely technical or procedural. In truth, they reflect something much more fundamental. If material is obtained or used by the jury privately, whether before or after retirement, two linked principles, bedrocks of the administration of criminal justice, and indeed the rule of law, are contravened. The first is open justice, that the defendant in particular, but the public too, is entitled to know of the evidential material considered by the decision making body; so indeed should everyone with a responsibility for the outcome of the trial, including counsel and the judge, and in an appropriate case, the Court of Appeal Criminal Division. This leads to the second principle, the entitlement of both the prosecution and the defence to a fair opportunity to address all the material considered by the jury when reaching its verdict. Such an opportunity is essential to our concept of a fair trial. These principles are too basic to require elaboration. Occasionally, however, we need to remind ourselves of them." Finally, Mr Mayo observed that had the irregularity come to the trial judge's attention, the defence would have made an application to discharge the jury and it is highly unlikely the prosecution would not have resisted the application. Even if they had, the trial judge would have concluded that the only safe course was to discharge the whole jury. 30. In response, Mr Price, having Ms Evans as his junior before us, did not dissent from that final proposition. Mr Price accepted there is "credible evidence that prejudicial extraneous material was accessed by one juror, MD, and communicated to one other: JB. An application to discharge the jury would probably have succeeded. But he invited us to find that the proven disclosure was limited to one juror JB. It went no further. 31. Given the breath of the police investigation, this court has the advantage of knowing what happened; it does not need to speculate as to the possible impact on the jury. Looking at all the material we have from all the jurors save MD, it is clear, he submitted, that the extraneous information did not feature at all in the jury's deliberations and did not influence its verdict. Nine jurors knew nothing of any researches on the internet, the foreman only knew of MD's looking at the BBC website, where there was no prejudicial material, and both he and JB are confident the jury focused solely on the evidence adduced at trial and the arguments advanced. 32. He also invited us to find that CA's accounts are incredible, they are full of inconsistencies and they appear to have been prompted by her having lost the battle to persuade her fellow jurors that the case against the applicant was not proved. He took us through her various accounts in his written submissions to highlight the inconsistencies, the contact between her and members of the applicant's family and what he called her lies about that contact. He described her conduct as having been improperly motivated to the extent that it suggests she was and remains biased. She was in clear breach of the trial judge's direction not to discuss the case herself and acted in contravention of section 20 D(1)(a) of the Juries Act 1974 . 33. Mr Price did, however, invite us to accept the account given by JB, that MD had told her he had searched on the internet and discovered the applicant had previous convictions, including one for breaking a man's jaw. The police have conducted a similar search on the internet and discovered the information relayed by MD to JB. The question posed for the court by Mr Price is whether what JB stated happened, viewed as a whole, tainted the jury's deliberations and thus undermined the safety of the conviction. Mr Price maintained it did not. 34. When JB heard the information, she did what she could to suppress it and it was not communicated to the other jurors. It did not taint or influence her and could not have tainted or influenced the others. The jury were already aware that the applicant was "well known to the police". Although JB did not report MD's conduct, Mr Price suggested the reasonable inference is that she did not do so because she genuinely regarded what she had learned as utterly immaterial. 35. The foreman, JP, it is obvious from his statement, was a conscientious juror who discharged his duties in full compliance with his oath and the directions of the judge. He was unaware of any misconduct in the same way as the other eight jurors were. Thus, Mr Price submitted, the extraneous information played no part in the jury's deliberations and even CA herself does not suggest otherwise. 36. Mr Price described this as a very simple, if serious, case. There was but one real issue: did Danielle Hammond fall or was she pushed? A witness saw her pushed and said so at once to another witness present and to a police officer. The applicant gave three different inconsistent accounts and the jury was in retirement for 10 hours and 19 minutes before the majority direction and a further 100 minutes after it, spread over a period of 3 days. This indicates the extent of their careful analysis of the evidence put before them. Our conclusions 37. First, we wish to express our gratitude to the parties for the great care they have taken in ensuring we have not infringed the principles set out in Mirza . We are also grateful to the police for their detailed and thorough investigation. 38. Second, we wish to express our concern at the contact between the applicant's family and CA. We appreciate and understand why they wish to support the applicant given his conviction for such a serious offence but once CA had spoken to them, they should have put her in touch with the applicant's solicitor and withdrawn. 39. Third, for the reasons Mr Price gave, we have very considerable reservations about the accounts given by CA. Her approach to jury service was surprising to say the least. She was well aware of the judge's directions but the text messages she sent indicate she was prepared to discuss the details of the jury's deliberations with a friend. She may well have lied about her contact with the applicant's family and how she knew to approach the applicant's solicitor. Her accounts have been inconsistent and they suggest an improper motive and a bias. 40. It comes to this. We would not be prepared to receive anything that CA may say save and insofar as it is confirmed by other sources. However, there is one important respect in which CA's account is confirmed by another source and that is the allegation that one juror accessed the internet in direct violation of the judge's directions, discovered a previous conviction and informed at least one other juror of the result of his research. JB knew that MD had discovered the applicant had broken a man's jaw. 41. This would be potentially bad character evidence of some significance in the context of a trial for an offence of attempted murder where the issue was: did the applicant push Ms Hammond over the balcony or did she fall? It was potentially very damaging to the appellant’s case. It was evidence of bad character that the prosecution did not consider was probative of their case against him. Had it been admissible, it would have been accompanied by a clear direction from the judge on why it was admissible and the approach the jury should adopt to it. The judge was unaware of the juror’s misconduct and gave no such direction. 42. Had the defence been aware that two jurors knew of the applicant's previous conviction, they would undoubtedly have made an application to discharge the whole jury. In all probability, this would have been granted. 43. We are in the position therefore that ignoring CA's account save in that one respect and accepting JB's account, as Mr Price invited us to do, we know at least two jurors, possibly three, knew of the applicant's bad character. We have nothing from MD on whether that knowledge affected him. We have no reason to doubt JB's assertion that she truly believes the information he provided did not affect her. However, we cannot be sure. We cannot be sure it did not affect her subconsciously and we cannot be sure it did not affect MD. If so, we cannot be sure that what they had learned of his conviction did not influence the other jurors as they contributed to the discussions. Neither JB or MD had the benefit of clear directions from the judge on bad character or, most importantly, submissions from the defence on its relevance. Both were in the convicting majority. 44. For those reasons, therefore, we have concluded that there was a serious irregularity of a kind that has undermined the safety of the conviction. We give the applicant leave to appeal against his conviction. We quash it and we will hear any representations on a retrial. 45. Mr Mayo, you know that there is an application. I can see no reason for not ordering one. 46. MR MAYO: None at all. My arguments were predicated on the basis that the court would. 47. THE VICE PRESIDENT: Indeed. Very well. The first thing to say is that there will of course be reporting restrictions in relation to this judgment pending the outcome of any retrial. We allow the appeal. We quash the conviction. Ms Evans, he was convicted on count 1. I cannot remember, were there other counts? 48. MS EVANS: Off the top of my head, I do not think there were. 49. THE VICE PRESIDENT: Mr Aleeson, were you at trial? 50. MR ALEESON: I was not, but I think there was just the single count. 51. THE VICE PRESIDENT: It was just a single count, was it? 52. We quash the conviction on count 1. We order a retrial on count 1. We direct that a fresh indictment be served. The appellant, as he now is, will be re-arraigned on the fresh indictment within 2 months. The venue for the retrial should be determined by the Presiding Judges for the South East circuit. There is no reason why it cannot go back to Her Honour Judge Catterson but it will all depend on the decision of the Presiding Judges. The appellant will remain in custody until the retrial and, as I have indicated, we make an order under section 4(2) of the Contempt of Court Act restricting reporting. Anything else we need to do? 53. MR MAYO: May I tentatively raise one matter. My Lady, we have all read about the important public interest principle which underlines the common law rule and that, to state it shortly, is to protect the jury from any criticism, ridicule or harassment; those are the words that their Lordships used. Now, it occurs to me that in the course of argument in this appeal both sides have made criticism of the conduct of jurors and, quite properly, my Lady in giving the judgment today has repeated those. 54. THE VICE PRESIDENT: You think we should anonymise them? 55. MR MAYO: I wonder whether that might be appropriate. 56. THE VICE PRESIDENT: I did wonder that earlier this morning. I was going to invite your submissions. I am glad you have raised it. 57. MR MAYO: I do invite the court to consider that, because, of course, they personally have not had an opportunity to respond to those criticism and I just wonder whether -- 58. THE VICE PRESIDENT: Mr MD has denied it. 59. MR MAYO: He has. 60. THE VICE PRESIDENT: We have not actually heard from Ms CA, although we have made criticisms on the papers. 61. Ms Evans, it is a thought. 62. MS EVANS: I agree actually, I do. 63. THE VICE PRESIDENT: Very well, when I come to perfect the ex tempore judgment I will anonymise, I will just refer to them by their initials. 64. MR MAYO: I am grateful. 65. THE VICE PRESIDENT: Thank you all very much for your help. 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 856' date: '2018-03-27' judges: - LADY JUSTICE HALLETT 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} ======

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral Citation No  [2022] EWCA Crim 1687 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202202630/A3 Royal Courts of Justice Strand London WC2A 2LL Wednesday 14 December 2022 Before: LORD JUSTICE DINGEMANS MR JUSTICE SWEENEY HIS HONOUR JUDGE PICTON (Sitting as a Judge of the CACD) REX V ALBJON AXHAMI __________ 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 V FOWLER appeared on behalf of the Appellant _________ J U D G M E N T LORD JUSTICE DINGEMANS: 1. This is an appeal against sentence. The appellant is a 19-year-old man having been born on 12 February 2003. He is an Albanian national and was of previous good character. 2. On 9 August 2022 he appeared before the Crown Court at Aylesbury and was sentenced to two years eight months' imprisonment for the production of a class B drug. The appeal raises the issue of whether the judge gave sufficient discount for the appellant's youth and immaturity, and issues about how he was categorised for the purposes of the sentencing guidelines. 3. It is necessary to record that the appellant should have been sentenced to detention in a young offender institution and not to imprisonment and we alter the record for those purposes. 4. On 24 February 2022, so just after his 19th birthday, the appellant was arrested in a warehouse unit which had been vacated by a previous tenant in 2019, which had been converted (without the knowledge of the owner) to grow cannabis plants. There were approximately 900 well-established cannabis plants and the electricity supply had been bypassed. There were hydroponics and quite a sophisticated system for maintaining the plants. The appellant was found in the kitchen and had keys to the warehouse and was able to come and go. About two hours after his arrest his brother arrived. He had a car and had cash upon him. The position in relation to the brother's prosecution is not known. 5. At police interview the appellant made a prepared statement suggesting that he had been present only for one week but knew that he was growing cannabis. 6. The appellant was charged with the production of a class B drug on 26 February 2022, so four days after his arrest. He pleaded guilty at the Magistrates' Court and was committed for sentence. On 9 August 2022 he then appeared and was sentenced as already indicated. 7. During the prosecution opening of facts the judge asked whether it was still being contended on behalf of the appellant that he had only been in the premises for one week in the light of the fact that the plants were well-established and in the light of the fact that the appellant had the keys. Defence counsel took instructions and clarified that the appellant was not contending that he had a role limited to that of a gardener and that there was a factor of significant role. It was also contended that there were factors of lesser role present. 8. When sentencing the judge identified that this was a Category 2 case based on the yield and that the appellant had a significant role. That gave a starting point of four years with a range of two years six months to five years. The judge identified that there were aggravating factors being the expected profit, the unlawful access to electricity and the expensive and specialised equipment. The judge said that there were mitigating factors being a lack of previous convictions and the fact that the appellant was 19 years old. The judge said that there was no evidence that the appellant lacked maturity and that there was no evidence that the appellant had been exploited. The judge said it was a well-organised enterprise and the appellant had the significant role already identified. 9. The judge then said that he had taken account of aggravating and mitigating factors and came up with a sentence of the four year starting point which was then discounted by one-third for guilty plea, giving a sentence of 32 months (which is two years eight months). 10. Miss Fowler, to whom we are grateful for her written and oral submissions this morning, pursues three grounds of appeal. The first is in relation to personal mitigation. It is said that the appellant made admissions in interview and pleaded guilty, that he was of previous good character and that some weight should have been given to the fact that he said he had been brought into this country illegally and that he owed a debt. The second ground of appeal was that insufficient reduction was made on account of his age. The third ground of appeal was that in fact properly analysed he was on the borderline of a significant and lesser role and somewhere between the two and therefore the starting point taken by the judge was too high. 11. So far as the first ground of appeal is concerned, we agree that there was mitigation in the appellant's previous good character and that his age was relevant. It is well-established that the age of 18 is not a cliff edge and that the youth and maturity of an offender will be factors that inform any sentencing decision, even after an 18th birthday. It is common ground in all the authorities that a reduction for age and maturity does not cease simply on the cliff edge, as it was described, of the 18th birthday. 12. The judge did not express the effect of this, but the judge had identified, and was right to identify, aggravating factors. These were the expected profit, unlawful access to electricity and expensive and specialised equipment. The judge must therefore have taken a starting point of four years and gone up to reflect those aggravating factors before reducing that increased sentence to take account of the mitigating factors, in particular of age and previous good character. That means that the judge then ended up with the sentence which he had, before he then gave the full and appropriate discount for the plea of guilty and the fact that admissions were made in interview. In those circumstances we do not consider that grounds 1 and 2 take the matter any further or forward. It is right, as Miss Fowler pointed out in her submissions, that that was not made clear in the sentencing remarks, but it was certainly implicit from the judge's sentencing. 13. That leaves the question of whether the judge was entitled to find that the appellant had a significant role and Miss Fowler points out that there was exploitation and lack of maturity in this case. In this case the judge expressly addressed the issue of maturity and said that there was no evidence of a lack of maturity and he also considered the issue of exploitation. The judge was entitled to find that there were no indications of exploitation. This appellant had the keys to the property, it was his brother who turned up two hours later who had cash and a car, and we note, and Miss Fowler has confirmed it today, that there has been no reference to the Single Competent Authority. A reference can be made to the Single Competent Authority regardless of whether the circumstances would amount to a defence under the Modern Slavery Act (and it was common ground in this case that the circumstances were not such that there would have been a defence under the Modern Slavery Act). 14. In all these circumstances we are unable to say that the sentence was either wrong in principle or manifestly excessive. We will therefore dismiss the appeal. 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 1687' date: '2022-12-14' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE SWEENEY - 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: [2017] EWCA Crim 2163 Case No: 201702412 A3 and 201702442 A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEWES CROWN COURT (PARSONS) HHJ Niblett S20170166 ON APPEAL FROM WORCESTER CROWN COURT (MORGAN) HHJ Pearce-Higgins T20170108 Royal Courts of Justice Strand, London, WC2A 2LL Date: 20/12/2017 Before : LORD JUSTICE GROSS MR JUSTICE TEARE and MR JUSTICE KERR - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - HAYDEN GRAEME PARSONS Appellant - and - REGINA Respondent - and - STUART JAMES MORGAN Appellant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Simon Heptonstall (instructed by Crown Prosecution Service, Appeals and Review Unit ) for the Crown Paul Luttman (instructed by David Street & Company ) for the Appellant Parsons Mark Thompson ( instructed by Coulson Read Lewis Solicitors) for the Appellant Morgan Hearing date : 23 November, 2017 - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Lord Justice Gross : INTRODUCTION 1. This is the judgment of the Court to which we have all contributed. 2. The two separate cases before the Court have been listed together. Both concern prohibitions on internet access and use imposed by Sexual Harm Prevention Orders (“SHPOs”). The question arises as to whether the guidance given in R v Smith [2011] EWCA Crim 1772 ; [2012] 1 WLR 1316 , the leading case as to restrictions on internet access and use under the predecessor Sexual Offences Protection Orders (“SOPOs”), requires adaptation in the light of developments in technology and everyday life. A further question is whether the decision in R v McLellan and Bingley [2017] EWCA Crim 1464 applies to SHPOs, mutatis mutandis , as well as to SOPOs. 3. The legislation governing SHPOs is found in ss. 103A and following of the Sexual Offences Act 2003 (“the Act”). Whereas a SOPO could only be imposed where necessary to guard against a risk of “ serious ” sexual harm, it is apparent that a SHPO can be imposed where necessary to protect “….the public or any particular members of the public” from sexual harm, simpliciter : s.103A(2)(b)(i). This change has already been reflected in R v NC [2016] EWCA Crim 1448 , amending the questions posed in Smith (at [8]) to be considered by a Court when considering the imposition of a SHPO. As formulated in NC , at [9], those questions are now as follows: “ (i) is the making of an order necessary to protect the public from sexual harm through the commission of scheduled offences?; (ii) if some order is necessary, are the terms imposed nevertheless oppressive?; (iii) overall, are the terms proportionate? ” 4. A further change under the SHPO regime is that “child” now means a person under 18, rather than a person under 16: s.103B(1). GENERAL CONSIDERATIONS 5. At the outset, we underline the following: i) First, as with SOPOs, no order should be made by way of SHPO unless necessary to protect the public from sexual harm as set out in the statutory language. If an order is necessary, then the prohibitions imposed must be effective ; if not, the statutory purpose will not be achieved. ii) Secondly and equally, any SHPO prohibitions imposed must be clear and realistic . They must be readily capable of simple compliance and enforcement. It is to be remembered that breach of a prohibition constitutes a criminal offence punishable by imprisonment. iii) Thirdly, as re-stated by NC ( supra ), none of the SHPO terms must be oppressive and, overall, the terms must be proportionate. iv) Fourthly, any SHPO must be tailored to the facts. There is no one size that fits all factual circumstances. 6. The present matters raise individual questions of wider importance going to: i) Blanket bans on internet access and use; ii) Where children are concerned, whether the prohibition should extend to those under 18 or those under 16 (“the question of age”); iii) Risk management monitoring software; iv) “Cloud storage”; v) Encryption software; vi) The application of the decision in McLellan and Bingley to SHPOs. 7. We take each in turn. 8. (1) Blanket bans on internet access and use: While eschewing any attempt to lay down a rule for all cases (see [20]), the Court in Smith made plain its disapproval in general of such blanket bans. Hughes LJ (as he then was), said this (at [20] (i)): “ A blanket prohibition on computer use or Internet access is impermissible. It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment…..” 9. We respectfully agree, adding only that the importance of the internet for everyday living has increased considerably even since the decision in Smith . We accept the broad thrust of Mr Thompson’s submission on behalf of Morgan , namely, that the need for an individual to be able to access the internet and to possess devices capable of accessing the internet, has become “the established norm”. The internet is now an integral part of social life, of commercial transactions and is very much encouraged in dealings between an individual and government departments or local authorities. The massive expansion of social media further highlights developments in this regard. 10. While we agree with Mr Heptonstall for the Crown and would be unwilling to say that a blanket ban on internet access and use can “never” be justified, we cannot envisage that such a prohibition would be appropriate in anything other than the most exceptional cases. In all other cases, a blanket ban would be unrealistic, oppressive and disproportionate – cutting off the offender from too much of everyday, legitimate living. 11. (2) The question of age: We have already drawn attention to the fact that the SHPO regime defines a child as a person under 18: s.103B(1) of the Act. Although, at first blush, this may seem surprising because much sexual offences legislation is focused on prohibitions in respect of activity or relationships with those under 16, that is not always so and some legislation is directed to the protection of those under 18. See the discussion in Smith , at [21]. 12. Two further examples suffice. First, for the purposes of the offence of making an indecent photograph of a child, contrary to s.1(1) of the Protection of Children Act 1978 (“the 1978 Act”), a child is defined (by s.7(6) of the 1978 Act) as a person under the age of 18. Secondly, the same definition of a child is adopted in respect of the offence of possession of an indecent photograph of a child, contrary to s.160(1) of the Criminal Justice Act 1988 (“the 1988 Act”) – albeit that s.160A of that Act provides a specific defence for images of a child over 16 with whom the defendant was in a marriage, civil partnership or with whom the defendant was living together as part of an enduring family relationship. 13. Against this background, we can see no objection in principle to a prohibition geared to those under 18 - a matter plainly contemplated by the Act in respect of SHPOs. That said, we can readily understand that the facts of an individual case might point towards confining prohibitions to children under 16 (for the reasons given in Smith, at [21]). 14. (3) Risk management monitoring software: Under this heading and in respect of the discussion of “cloud storage” and encryption software (below), we acknowledge our gratitude to Mr Caithness, an expert instructed following prompting by the Court and who produced, at short notice, effectively agreed reports of the 21 st and 24 th November, 2017. 15. Mr Caithness took “risk management monitoring software” to mean: “ …software which monitors the use of a computing device (including but not limited to: PCs, smart phones and tablets) for prohibited behaviours such as: 4.1 the installation of restricted software 4.2 access to prohibited resources (whether stored locally on the device or on the web) 4.3 attempts to change the device’s software settings or hardware configuration” The software may simply record that the prohibited action took place or it may block the activity altogether. 16. As explained by Mr Caithness, such software is most widely used within businesses to mitigate the risks posed by employee misconduct – which may damage the company’s reputation (e.g., by accessing pornographic websites) or result in a leak of the company’s intellectual property. In a corporate environment, these software solutions would usually be controlled centrally by the IT department. Mr Caithness went on to add that monitoring software could also be used at home, with a view (for example) to preventing children from accessing inappropriate and pornographic content. 17. Mr Caithness added the following observations as to risk management monitoring software: “8. Installing these solutions onto each device…to be monitored generally requires either that the device is under administrative control of a corporate network or that physical and administrative access is provided to the device in question. It will also be required that the monitoring software to be installed is compatible with the hardware and operating system. 9. These software products should be kept up to date and as new versions of operating systems are released for the monitored devices, the monitoring software should be tested for compatibility to ensure that monitoring continues unabated. This additional work creates an administrative overhead for these solutions.” 18. Given the administrative burdens thus imposed and the realities of Police time and resource constraints, we would be concerned about a prohibition which assumed that a Police force would necessarily wish to insist on the installation of such software or which made the use of the device contingent on the approval by the Police force of software already installed on it; the latter prohibition could unintentionally (and by the backdoor) become a ban on usage of the device. 19. Instead and without dissent from the parties, we would prefer to approach this topic as follows. The trigger should be notification by the offender to the Police of his acquisition of a computer or device capable of accessing the internet; the Police cannot be expected to know otherwise. The device should have the capacity to retain and display the history of internet use and the offender should be prohibited from deleting such history. The device should be made available immediately on request for inspection by a Police officer (or employee) and the offender should be required to allow any such person to install risk management software if they so choose. The offender should further be prohibited from interfering with or bypassing the normal running of any such software. For our part, this is a workable and proportionate solution to the questions raised by risk management monitoring software. It is reflected in the agreed form of words ultimately adopted in the orders in both Morgan and Parsons , set out below. 20. (4) “Cloud storage”: Mr Caithness defined “cloud storage” as “a service which allows a user of a computing device (including, but not limited to: PCs, smart phones and tablets) to store data and files in a remote location accessible over the internet.” A broader definition of cloud storage could also apply to any service where storage was offered on the internet – so that webmail could be regarded as a type of cloud storage. Cloud storage furnishes various benefits, which need not detain us here. 21. As further explained by Mr Caithness, access to cloud storage can take place using an application (“app”), through use of a web browser or via direct integration with an operating system – or a combination of these methods. 22. Examples of services offering and marketing themselves as cloud storage solutions, include (but are not limited to) Dropbox, Microsoft OneDrive, Google Drive and Apple iCloud. 23. Mr Caithness saw cloud storage as “practically ubiquitous” when considering computing devices currently available on the market. As he put it, this was due to access to cloud storage being a “built-in or pre-installed feature on the prevailing Desktop PC and Smartphone operating systems”, including Windows 10, Apple’s MacOS (desktop) and IOS (smartphone) and Google’s Android smartphone operating system. It followed that for users following the default installation or set-up options for these operating systems, “logging into, or signing up to one these cloud storage services is implicit in the process”. Accordingly and unless the user specifically configured the device not to do so, “use of the pre-installed cloud services will take place transparently (and in many cases preferentially to the use of local storage such as an internal hard drive….”. 24. It is against this background that any prohibition on cloud storage falls to be considered. As expressed by Mr Caithness: “20. Prohibiting the use of cloud storage services would require specific configuration of a computing device in the first instance to ensure that the default and automatic access offered by an operating system was not enabled. Care would also need to be taken that updates to the devices did not re-enable access to these services. 21. The primary impact on a user prohibited from using these services would be that storage of the data and files under their control must be managed locally by said user..….. There is also a burden upon a user to maintain a configuration on current or new computing devices which disables the automatic use of these services. ” 25. Accordingly, the vice against which a prohibition should be targeted is not the default or automatic use of cloud storage, “practically ubiquitous” in the devices available to consumers today. That would be altogether too blunt an approach. A prohibition too widely worded would not only be unnecessary but could readily be a trap for the unwary user of (for example) a smartphone in mass usage. The vice is instead the deliberate installation of a remote storage facility, specifically installed by an offender without notice to the police and which would not be apparent from the device he is using – and not intrinsic to the operation of any such device. As will be seen, this more targeted approach, together with a notification requirement, is reflected in the orders set out below. 26. (5) Encryption software: Mr Caithness defines encryption as “the process of encoding data or information so that it should only be able to be read or accessed by an authorised party who has access to the ‘key’ to the data.” 27. Once again, any prohibition on encryption software falls to be considered against the reality of the devices available to consumers for everyday legitimate use. That reality is expanded upon by Mr Caithness, as follows: “26. Anyone interacting with a modern computer system (including, but not limited to: PCs, smart phones and tablets) will likely be making use of encryption in one form or another for a significant period of that usage. Some examples of this include….: 26.1 Access and communication with websites. Where the address of a website begins with ‘https’, encrypted communication shall be used by the browser….. 26.2 Many smartphones and desktop computers implement encryption of the data stored by the user. In the case of Apple iPhones, for example, this encrypted storage is mandatory and cannot be disabled…. 26.3 Communication applications (apps) for text, voice and video calls widely make use of encryption to prevent eavesdropping on communications. Many of the best-known communication applications make use of encryption for communications, for example: Skype….Whatsapp…. …. 27. Beyond its use in personal computing devices, encryption is used in other aspects of everyday life for example: 27.1 Mobile phone calls…… 27.2 Subscription TV (such as ‘Sky’)…. 28. Prohibiting the use of all encryption would have a great impact on the ability of a person to operate within a digital landscape, especially where data must be transmitted or received. Use of the internet would become limited and insecure…. Specific provisions would have to be made to ensure that a system did not accidentally ‘stray’ onto a secure website…… 29. Making use of mobile communication would also be made problematic…..” 28. As with cloud storage, it is readily apparent that a prohibition here must be fashioned in such a manner as neither to be a blunt instrument nor a trap for the unwary (simply using the default setting of a device in everyday legitimate use). A suitable prohibition must instead be targeted - and aimed at the installation of encryption or wiping software on any device other than that which is intrinsic to its operation. That is the approach adopted in the orders set out below. 29. (6) The application of the decision in McLellan and Bingley to SHPOs: Extended discussion is unnecessary. We need say no more than that the observations in McLellan and Bingley (at [51] et seq ) as to the demarcation between appeals to this Court and applications to vary or discharge SOPOs, apply equally, mutatis mutandis , to SHPOs. For completeness, the Crown Court’s jurisdiction to vary or discharge a SHPO is furnished by s.103E of the Act. 30. (7) Pulling the threads together: With respect, the guidance given by Smith (esp., at [18] and following) remains, in general, essentially sound and should continue to be followed. However, as has been seen, in certain specific areas, developments in technology and changes in everyday living call for an adapted and targeted approach. This is so especially in relation to risk management monitoring software, cloud storage and encryption software. Moreover, it is necessary to take account of the SHPO legislation defining “child” as a person under 18 (rather than under 16). 31. With these views in mind, we turn to the individual appeals. STUART JAMES MORGAN Introduction 32. On 20 th April 2017, in the Crown Court at Worcester before His Honour Judge Cartwright, the applicant pleaded guilty to five counts alleging the following offences: counts 1-3, making indecent photographs of a child contrary to section 1(1) (a) of the Protection of Children Act 1978; count 4, possession of an extreme pornographic image contrary to section 63(1) of the Criminal Justice and Immigration Act 2008; and count 5, possession of a prohibited image of a child contrary to section 62(1) and 66(2) of the Coroners and Justice Act 2009. 33. On 12 th May 2017, before His Honour Judge Pearce-Higgins QC, the applicant was sentenced on each of counts 1-5, concurrently, to a community order for 36 months with a requirement to participate in the Community Sex Offender programme. 34. A SHPO for a period of 5 years was made pursuant to s. 103 of the Act, containing the following terms: “1. The Defendant is prohibited from accessing the internet or 2. Possessing any device capable of accessing the internet save in a public place, public library or under the supervision of a Police Officer or a Probation Officer. ……” 35. There was a Victim Surcharge order in the sum of £85. Forfeiture and destruction was ordered of the items the police had seized. 36. Having been convicted of an offence listed in Schedule 3 of the Act, the applicant was required to comply with the provisions of Part 2 of the Act (notification to the police) for 5 years. 37. The applicant applies for leave to appeal against sentence. His application has been referred to the full court by the Registrar. We give leave and refer to him hereafter as “the appellant”. The facts 38. The facts are as follows. 39. The appellant is now aged 49. He is of previous good character. 40. On 10 th May 2017, police entered the appellant’s address with a warrant to search. Various items of computer and computer-related equipment were seized. He told the officers, “I’ve been deleting some stuff I’ve found from emule” (a peer-to-peer sharing network). 41. Later that day he was interviewed. He explained that he had a lifetime’s collection of pornography which he obtained from the network and stored on his hard drives. He viewed pornography on a daily basis. Over time, he had accidentally downloaded indecent images of children, some of which he had viewed and some he had deleted. 42. Following an analysis of the items seized from his address – consisting of computers, three hard drives, and a box of discs - he was interviewed again. He accepted that he had copied indecent images and videos of children onto CDs and DVDs, although he thought he had since destroyed them by copying over the indecent material. 43. The indictment covered the period from 2002 to 2017. The material involved 172 category A moving images of a child (count 1), 7 category B moving images of a child (count 2); 2 category C moving images of a child (count 3), 144 extreme images and 602 extreme moving images portraying a person performing an act of intercourse or oral sex with an animal (count 4) and one prohibited image (namely an indecent cartoon image of a child) (Count 5). 44. It was noted that there was an attempt to dispose of or conceal the images and evidence of systematic storage and organisation of the collection. 45. There was a pre-sentence report, stating that the appellant admitted that having initially encountered indecent images and movies involving children by accident, whilst searching for adult pornography, he thereafter searched for, downloaded and stored material involving children using the “emule” “peer to peer” internet sharing network. He accepted that he gained sexual gratification from such images and also from images involving animals. 46. He was assessed as being highly sexually preoccupied. He only worked two days a week and spent the rest of his time watching films and pornography. His lifestyle was isolated and revolved around his computer. 47. Even though he had viewed images of children as young as three years, his preference was for children aged between 9 and 13 years. He appeared detached and unemotional about the effect his offending behaviour might have on others. 48. He was assessed as posing a medium risk of re-offending. He was considered as presenting a high risk of harm to children because his offending behaviour supported an exploitative industry. Sentence 49. Sentencing the appellant, the Judge gave full credit for his guilty plea. He commented that for many years, the appellant’s life had been dominated by online activity, living in an unreal world on the internet. 50. Having read the pre-sentence report, the Judge considered that the best way to address the appellant’s problems, and to protect society in the future, was to impose a 36 months’ community order, with a requirement to attend the Community Sex Offenders programme as directed by the responsible probation officer, on each count concurrently. 51. In relation to the SHPO, the Judge’s view was that the appellant was unlikely to make much of a recovery until he started living a real life rather than an online life. 52. To achieve this, the Judge considered he should be prevented from using or having access to a computer except in a public place such as a public library or under the supervision of the police or a probation officer as part of the community programme. 53. It may be noted that the Judge’s approach in this regard was unsupported by the submissions of either counsel. The prosecution, while seeking a SHPO, highlighted that the authorities were against the making of a blanket ban on accessing the internet. Defence counsel, in sustained submissions, contended that such a “blanket prohibition” on computer use or internet access was neither permitted nor proportionate; he relied, inter alia , on Smith (supra) . 54. The Judge accepted that authority appeared to be against a blanket prohibition on use of any computer. Nevertheless, he observed that every case was different. In this case, it was necessary to remove the temptation if there was to be any prospect of significant rehabilitation. Draconian measures were necessary. The Judge agreed that the order would restrict the appellant, but said it was for his own benefit and that of society. He drew an analogy with an alcoholic and emphasised the appellant’s lifestyle. Discussion and conclusions 55. The grounds of appeal focused entirely on the blanket prohibition in the SHPO on the appellant’s use of the internet. We should note that, despite the exception for a public place, public library or the supervision of a Police or probation officer, we entertain no doubt that the SHPO passed did entail an effective blanket prohibition on the appellant’s access to and use of the internet. By way of simple example, the exception confines the appellant to sending a simple, legitimate e-mail either in a public place or under the supervision of a Police or probation officer. 56. Notwithstanding Mr Heptonstall’s valiant attempt to defend the SHPO as passed, we are satisfied that it cannot stand. The present case is not, in any sense, a truly exceptional case. The blanket ban was well-intentioned but it is unrealistic, oppressive and disproportionate. That would have been the case at the time of Smith; for the reasons already given, it is all the more so now. 57. We accordingly quash the SHPO imposed on the appellant ( Morgan ) and substitute a SHPO, for the same period of time, in the terms set out below. It may be noted that no questions of prohibition of contact arose in the case of this appellant. 58. The terms of the substituted SHPO are as follows: “ The Defendant is prohibited from: (1) Using any computer or device capable of accessing the internet unless: (a) He has notified the police VISOR team within 3 days of the acquisition of any such device; (b) It has the capacity to retain and display the history of internet use, and he does not delete such history; (c) He makes the device immediately available on request for inspection by a Police officer, or police staff employee, and he allows such person to install risk management monitoring software if they so choose. This prohibition shall not apply to a computer at his place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within 3 days of him commencing use of such a computer, he notifies the police VISOR team of this use. (2) Interfering with or bypassing the normal running of any such computer monitoring software. (3) Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using ‘incognito’ mode or private browsing. (4) Using any ‘cloud’ or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless, within 3 days of the creation of an account for such storage, he notifies the police of that activity, and provides access to such storage on request for inspection by a police officer or police staff employee. (5) Possessing any device capable of storing digital images (moving or still) unless he provides access to such storage on request for inspection by a police officer or police staff employee. (6) Installing any encryption or wiping software on any device other than that which is intrinsic to the operation of the device.” 59. The diligence of the Court of Appeal Office, for which we are, as always, most grateful, has also brought to light two aspects in which the sentence passed was or may have been unlawful: i) As not all the offending commenced after the 1 st October, 2012, the imposition of the Victim Surcharge Order of £85 was unlawful. We quash the Victim Surcharge Order. ii) With regard to the Community Order, the difficulty relates to the Programme Requirement if and insofar as the offending under counts 1 - 3 pre-dated the coming into force of the relevant provisions of the Criminal Justice Act 2003 , on 4 th April, 2005. The simplest solution which makes no practical difference to the outcome is to quash the sentence on counts 1-3 and impose no separate penalty. We do so. The Community Order imposed in respect of counts 4 and 5, remains in force and unaffected. 60. To the extent indicated, the appeal of Morgan is allowed. HAYDEN GRAEME PARSONS Introduction 61. The appellant is aged 31 and on 12 April 2017 pleaded guilty before the magistrates to one count of making indecent photographs of a child and to one count of possessing a class B drug. He was committed to the Crown Court for sentence and, on 10 May 2017, he was sentenced by HHJ Niblett, sitting in the Crown Court at Lewes, to 12 months’ imprisonment on the first count, suspended for 24 months, and to one month’s imprisonment, consecutive, on the second count, also suspended for 24 months. In addition, there were supervision and programme requirements and the appellant was made subject to a SHPO for 10 years. Still further, a Victim Surcharge of £115 was imposed. The appellant, who has previous convictions but none relevant to the present offending, appeals to this Court by leave of the Single Judge. 62. It is the terms of the SHPO which are the subject of this appeal. The prohibitions were as follows: “ (1) Living in the same household as any child under the age of 18 or entering or remaining in any household where a child under 18 is present unless with the express approval of Social Services for the area in which he resides. (2) Having any unsupervised contact or communication of any kind with any child under the age of 18 other than: (i) such as is inadvertent and not reasonably avoidable in the course of daily life, or (ii) with the consent of the child’s parent or guardian (who has knowledge of his convictions) and with the express approval of Social Services for the area. (3) Using any device capable of accessing the internet unles: (i) It has the capacity to retain and display the history of internet use, and (ii) He makes the device available on request for inspection by a police officer, and (iii) Using any computer or other electronic device capable of accessing the internet unless the device is installed with risk management monitoring software approved by the police force responsible for monitoring the Defendant, save for computer(s) at the Defendant’s place of work or computer(s) at the Defendant’s local library which must be notified and approved by the risk management officers responsible for monitoring the Defendant prior to use. (4) Utilising any ‘cloud’ or similar remote storage media unless he declares such use (provides account details) to the Public Protection Unit of the area in which he resides and provides access to it on request for inspection by a police officer. (5) Deleting such internet history on any device as detailed above. (6) Possessing any device capable of storing digital images unless he makes it available on request for inspection by a police officer. (7) Purchasing, downloading, obtaining, owning or using any encryption or wiping software and possessing any media or other storage device which is encrypted. If any device is password protected, passwords must be made available to the Public Protection Officer or any officer acting in the course of their duty. Any device authorised must be made available for inspection by the Public Protection Officer or an officer acting in the course of their duty upon request.” Before us, objection was taken to prohibitions 1, 2, 3(iii), 4 and 7. There was no issue as to prohibitions 3(i), (ii), 5 and 6. The facts 63. The facts of the offences to which the appellant pleaded guilty were these. On 5 December 2016 police officers attended at the appellant’s home address and seized a laptop and a mobile phone. They also found 8 grams of herbal cannabis. 64. On the mobile phone were found 27 category A images, 48 category B images and 2161 category C images. There was a mix of still photographs and moving images. The forensic report shows that examples of the images in category A involved female children aged between 3 and 10 years old, that examples of the images in category B involved female children aged between 3 and 10 and that examples of the images in category C involved female children aged between 3 and 14. The vast majority depicted female children under 10. The forensic report shows the presence of search terms which indicated searching for the images in question and also websites which could be used for online chats with young children. The image files appear to have been created between 31 March 2016 and 22 November 2016. 65. On the laptop were found 39 category A images, 52 category B images and 1879 category C images. There were a mix of still photographs and moving images, The forensic report shows that examples of the images in category A involved female children aged between 4 and 8 years old, that examples of the images in category B involved female children aged between 5 and 8 and that examples of the images in category C involved female children aged 7. The forensic report shows the presence of search terms which indicated searching for the images in question and also websites which could be used for searching for such images. The image files appear to have been created between 29 March 2013 and 13 March 2015. 66. The only examples of male children were found on the phone. There were amongst the samples of category B images an image of male child, aged 15-16 (with a female child aged 4-5) and an image of a male child aged 8-10 (with a female child aged 6-8). Sentence 67. Passing sentence, the Judge stated that it needed to be brought home to the appellant, by a programme of therapeutic treatment, that every one of the images was of a real child being abused. A custodial sentence was to be imposed but the Judge was satisfied that it could and should be suspended. 68. As to the SHPO, all the prohibitions were necessary to protect young children from further harm from the appellant, albeit he did not harm them directly. Discussion and conclusions 69. We were grateful to both Mr Luttman, for the appellant and Mr Heptonstall, for the Crown, for their respective submissions on the prohibitions in dispute (namely, 1, 2, 3(iii), 4 and 7). We can state our views relatively shortly. 70. (I) Prohibitions 1 and 2: Three matters were here in issue: (1) Whether any prohibitions on contact were justified? (2) If so, whether contact should be prohibited in respect only of female children rather than all children? (3) Whether any such prohibition should relate to children under the age of 18 or whether the prohibition should be limited to children under the age of 16? 71. (1) Prohibitions on contact: As explained in Smith, at [22] – [23], it is “not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence”. There must be “an identifiable risk of contact offences” before prohibitions on contact can be justified. 72. The present case is close to the borderline. The appellant’s relevant offending comprised making indecent photographs of children. That said, the facts (set out above) disclosed his browsing or searching for websites which could be used for online chats with young children. Such searches could have been a first step towards the commission of predatory offending, seeking out children for sexual purposes. In the circumstances, we are persuaded that the inclusion of some contact prohibitions in the SHPO was necessary and proportionate. 73. (2) All children or only female children? The gravamen of the appellant’s offending related to female children. On the material before us, the images of male children were incidental to the appellant’s interest in female children. Accordingly, we are of the view that prohibitions 1 and 2 should be confined to female children. 74. (3) Female children under the age of 18 or under the age of 16? Given the particular nature of the appellant’s offending and the definition of “child” now contained in the SHPO legislation, we are not persuaded to interfere with the prohibition restricting contact in respect of (female) children under 18. 75. (II) Prohibitions 3(iii), 4 and 7: For reasons which will already be apparent from our earlier and more general discussion, these prohibitions require amendment. With regard to prohibition 3(iii), we are concerned about the administrative burdens which it imposes and the unintended consequences which might flow therefrom. As drafted, both prohibitions 4 and 7 are too blunt and create a trap for the unwary user, in a manner going well beyond the mischief intended. 76. (III) The substituted SHPO: We accordingly quash the SHPO as imposed on the appellant ( Parsons ) and substitute for the same period of time (10 years) a SHPO in the following terms (which are the same as those in Morgan, above, save for the addition of the contact prohibitions): “ The Defendant is prohibited from: (1) Living in the same household as any female child under the age of 18 or entering or remaining in any household where a female child under 18 is present unless with the express approval of Social Services for the area in which he resides. (2) Having any unsupervised contact or communication of any kind with any female child under the age of 18 other than: (i) such as is inadvertent and not reasonably avoidable in the course of daily life, or (ii) with the consent of the child’s parent or guardian (who has knowledge of his convictions) and with the express approval of Social Services for the area. (3) Using any computer or device capable of accessing the internet unless: (a) He has notified the police VISOR team within 3 days of the acquisition of any such device; (b) It has the capacity to retain and display the history of internet use, and he does not delete such history; (c) He makes the device immediately available on request for inspection by a Police officer, or police staff employee, and he allows such person to install risk management monitoring software if they so choose. This prohibition shall not apply to a computer at his place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within 3 days of him commencing use of such a computer, he notifies the police VISOR team of this use. (4) Interfering with or bypassing the normal running of any such computer monitoring software. (5) Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using ‘incognito’ mode or private browsing. (6) Using any ‘cloud’ or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless, within 3 days of the creation of an account for such storage, he notifies the police of that activity, and provides access to such storage on request for inspection by a police officer or police staff employee. (7) Possessing any device capable of storing digital images (moving or still) unless he provides access to such storage on request for inspection by a police officer or police staff employee. (8) Installing any encryption or wiping software on any device other than that which is intrinsic to the operation of the device.” 77. (IV) Unlawful sentence: Once again, we are indebted to the Criminal Appeal Office. It is unnecessary to say more than that having regard to the dates of the offending, the correct Victim Surcharge was £100 rather than £115. We quash the order for the payment of £115 and substitute an order for the payment of £100. 78. In the various respects and to the extent indicated, we allow the appeal of Parsons .

```yaml citation: '[2017] EWCA Crim 2163' date: '2017-12-20' judges: - LORD JUSTICE GROSS - MR JUSTICE KERR ```

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

Neutral Citation Number: [2009] EWCA Crim 962 Case No: 2008/03986/A5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHELMSFORD MR JUSTICE DRAKE Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/05/2009 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE DAVID CLARKE and MR JUSTICE WYN WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between : R - v - Jeremy Bamber - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Horwell QC and Mr L Hindmarsh for the Applicant Mr V Temple QC and Miss A Darlow for the Crown Hearing date : 28 th April 2009 - - - - - - - - - - - - - - - - - - - - - Judgment The Lord Chief Justice of England and Wales : 1. On 28 October 1986 at the Crown Court at Chelmsford before Drake J and a jury Jeremy Bamber (the applicant) was convicted of murdering his adoptive father, his adoptive mother, his adoptive sister, and his nephews, her 6 year old twin sons, on 7 August 1985. 2. In December 2002, following a reference by the Criminal Cases Review Commission, these convictions were upheld in this court. (See (2002) EWCA Crim 2912 ) 3. The present application is not concerned with the convictions, or their safety, or any grounds of appeal against them. The issue to be addressed arises from the sentencing process, which culminated on 16 May 2008 in a decision by Tugendhat J who, following a review of sentence conducted in accordance with schedule 22 of the Criminal Justice Act 2003 ( the 2003 Act ) ordered that the applicant should be subject to what can be summarised as a “whole life tariff” sentence for these offences. This order is the subject of the present application. 4. On 28 th April 2009 we heard the submission advanced on the applicant’s behalf by Mr Richard Horwell QC. We refused the application and indicated that we would reduce our reasons to writing. Brief Summary of the Facts 5. These murders were planned. On 7 August 1985 the applicant, then aged 24 years, broke into the family home. The members of his family were asleep. He fired a total of 25 bullets from a rifle into their bodies. They were all killed. 6. As a result of these deaths the applicant stood to make a considerable financial gain. With the death of his sister, and her children, he was the sole beneficiary to his parents’ estate, valued in excess of £400,000. 7. The pre-planning incorporated a scheme to avoid detection. The applicant’s sister had a history of mental illness. He sought to divert blame to her. After her death he positioned the body so that it would appear that she had killed the family, including her two infant sons, and then committed suicide by shooting herself. The sound moderator was removed from the murder weapon. It was concealed in a downstairs cupboard. If the sound moderator had remained attached, the investigations would almost certainly have concluded that the applicant’s sister could not have committed suicide. 8. In a further step the applicant removed the telephone in the downstairs kitchen from its cradle. Having constructed the scene so as to cast suspicion on his sister, the applicant telephoned the police to report a conversation with his father who, according to the applicant’s report, had asked him to come over because his sister had gone crazy and had a gun. The line then went dead. This report appeared later to be reinforced by the absence of the kitchen telephone from its cradle, which suggested that the father had been attacked while making the telephone call to his son for help. The applicant went on to tell the police that his sister had a history of psychiatric illness. He confirmed that there were guns at his father’s home. 9. A police car was despatched to the scene. Basing themselves on what the appellant had told them the police believed that his sister had been responsible for what had happened, and that a fraught situation might still obtain. They decided to wait until daylight before entering the house. Armed officers entered at 7.45. They found all 5 occupants dead from multiple gunshot wounds. 10. The applicant’s father, was 61 years old. From a later examination of the home it appeared that he was shot 4 times while he was upstairs in his home, but that he managed to make his way downstairs where a violent struggle took place in the kitchen. During this struggle he was struck a number of times with the rifle. He was found dead in his kitchen. The applicant’s mother was dead on the floor in her bedroom, and his sister was lying on the floor of her mother’s bedroom. The automatic rifle was found on her body with her right hand resting lightly on it, and the muzzle of the weapon just below wounds to her neck. The two small children were dead in their beds, shot through the head. 11. In the immediate aftermath and during the course of the police investigation, the applicant made a number of public appearances affecting profound distress and grief. For a while, the deception looked as though it might work, and the trial judge was later to express concern about the “less than thorough investigation” conducted by the police because they were “immediately persuaded” that the sister was responsible for the killings. However the applicant’s former girlfriend reported to the police that he had told her of his plans to kill his family, and indeed of his involvement in their killing. The applicant was arrested and remanded in custody from 29 September 1985. 12. On the basis of these facts the Crown contended and, following conviction, the sentencing decision had to reflect that these five murders were carefully planned, that the applicant made careful and sophisticated preparation to carry out the killing, to exculpate himself and to cast blame on his sister, and that the execution of his plans was utterly ruthless. This was a crime at the highest level of seriousness. The legislative background 13. In view of the submissions addressed to the court on behalf of the applicant we must briefly remind ourselves of the sentencing framework which applied at the date of conviction. Section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 provided that the sentence for murder was a mandatory sentence of imprisonment for life. By section 1(2) the court was empowered to “declare the period which it recommends” as the minimum period which should elapse before the release of the prisoner should be ordered. Two specific points relevant to the present and similar applications require emphasis. First, the recommendation was never intended to be and never was more than a recommendation, and it is plain that although the Secretary of State was required and would wish to attend to it, he was not bound by it. Second, it was never understood that every mandatory sentence of life imprisonment should automatically be regarded as a whole life sentence: subject to issues of public safety, the possibility of an eventual release was implicit in the vast majority of such cases. Subsequent sentencing enactments governed the exercise of the power of the Secretary of State to decide the time when the convicted murderer could, notwithstanding the mandatory sentence, be released from custody. That responsibility continued to be vested exclusively in the Secretary of State, and not the judiciary. 14. In 1986 therefore, the trial judge was enabled to make a recommendation about the minimum period which should elapse before the offender might be released on licence. His assessment was case specific, based on his judgment of the true level of the defendant’s culpability and the immediate and individual circumstances of the case. His recommendation reflected his view about the “actual length of detention necessary to meet the requirements of retribution and general deterrence”. The Lord Chief Justice was similarly involved in the process, but he was involved in each and every such case. In making his recommendation the Lord Chief Justice was removed from the immediate circumstances of the individual case, but basing himself on the report prepared by the trial judge for the Secretary of State, and his much wider, nationwide responsibilities, his recommendation ensured both appropriate oversight and consistency of approach to the assessment of the tariff period. Neither the trial judge nor the Lord Chief Justice decided the length of the period to be served by the offender for the purposes of retribution and general deterrence. Their role was advisory. 15. In the present case, following conviction, Drake J imposed the mandatory sentence of life imprisonment on each count of murder. In his sentencing remarks he recommended that a minimum of 25 years should be spent in prison. According to a contemporaneous newspaper report the judge stated “I have to consider when I think it is likely to let you live in the community. But I think it is difficult to foresee whether it will ever be safe to release into the community someone who can shoot and kill five members of his own family, including two little boys asleep in their beds” That observation would not have been before the Lord Chief Justice, Lord Lane. 16. Consistently with practice, Drake J wrote subsequently to the Secretary of State setting out his assessment of the case and his views about the length of detention necessary to meet “the requirements of retribution and general deterrence”. His assessment of the case was that this was an “exceptionally monstrous crime”. He drew particular attention to the way in which the applicant had decided to throw suspicions on to his sister, and how the plan very nearly led “to him escaping detection”. He then commented that “when I made the recommendation in court I emphasised that it was 25 years as a minimum ” (his underlining). 17. Shortly afterwards Lord Lane, again in accordance with practice, and writing on the same document as that signed by Drake J, expressed himself in these terms: “I agree with Drake J, adding that for my part I would never release him”. (Again, his underlining). It is suggested on the applicant’s behalf that Lord Lane was indicating his agreement which Drake J’s recommendation, and not, as Tugendhat J concluded, recommending a whole life tariff. 18. We disagree. It is quite clear to us, as it was to Tugendhat J, that while Lord Lane indicated his agreement with Drake J’s assessment of the crime as “exceptionally monstrous”, when he was addressing the minimum period which he was recommending, he was deliberately emphasising that his recommendation was that the applicant should never be released. If he had been agreeing that the 25 year minimum recommendation made by Drake J was appropriate, he would have confined himself to the words “I agree with Drake J”, or even, “I agree”, or, simply “25 years”. The additional words he used expressly indicated that his view about the minimum term did not coincide with that of Drake J, and that even as a “minimum”, 25 years was an inadequate punitive term. Lord Lane’s recommendation was that the appellant should “never” be released. The Secretary of State was thus provided with two judicial recommendations. He was entitled to choose between them, or to adopt neither of them. 19. In 1988, the Secretary of State, in agreement with the Lord Chief Justice, ordered that the applicant should be subject to a “whole life tariff”. 20. On 15 December 1994, in accordance with the practice laid down by the House of Lords in Doody [1994] 1AC 531 , the applicant was informed that the Secretary of State had concluded that “the requirements of retribution and deterrence could only be satisfied by you remaining in prison for the whole of your life”. As far as we are aware, and after investigation by Mr Horwell with his client it is apparent that there was no response to an indication in the letter that the Secretary of State would be willing to entertain written representations by or on behalf of the application about the whole life tariff, but whether such representations were received or not, the whole life order was not varied. There the matter appeared to rest. Developments after 1994 21. In Anderson [2003] 1AC 837 the House of Lords concluded that the right of an offender under Article 6 of the European Convention on Human Rights (the Convention) to have sentence imposed on him by an independent and impartial tribunal was infringed by the arrangements by which the Secretary of State was involved in setting the minimum term to be served by an offender sentenced to life imprisonment for murder. The present application arises directly from the new arrangements put in place to address this decision. 22. The Secretary of State’s responsibility for the assessment of the appropriate minimum term was ended by the 2003 Act . Subject to any appeal to this court, or a reference to this court by the Attorney General of an unduly lenient sentence, the responsibility for fixing the minimum term to be served, or for making a whole life order is vested in the trial judge. 23. To cater for those cases where, as here, the Secretary of State had already notified the prisoner of the minimum period to be served by him as the tariff period, including a whole life tariff, paragraph 3 of schedule 22 of the Act entitled the prisoner to seek a review of minimum term, or whole life tariff set by the Secretary of State. The process is now governed by schedule 22 . 24. Paragraph 3 of schedule 22 provides: “(1)On the application of the existing prisoner, the High Court must, in relation to the mandatory life sentence, either – (a) order that the early release provisions are to apply to him as soon as he has served that part of the sentence which is specified in the order, which in a case falling within paragraph 2(a) must not be greater than the notified minimum term, or (b) in a case falling within paragraph 2(b), order that the early release provisions are not to apply to the offender. (2) In a case falling within paragraph 2(a), no application may be made under this paragraph after the end of the notified minimum term. (3) Where no application under this paragraph is made in a case falling within paragraph 2(a), the early release provisions apply to the prisoner in respect of the sentence as soon as he has served the notified minimum term (or, if he has served that term before the commencement date but has not been released, from the commencement date). (4) In this paragraph “the notified minimum term” means the minimum period notified as mentioned in paragraph 2(a), or where the prisoner has been so notified on more than one occasion, the period most recently so notified. ” 25. Paragraph 4 of schedule 22 provides: “(1) In dealing with an application under paragraph 3, the High Court must have regard to – (a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, (b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c.80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and (c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such notification has been given. (2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to – (a) The general principles set out in Schedule 21 , and (b) Any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence. (3) In this paragraph “the notified minimum term” has the same meaning as in paragraph 3.” 26. The applicant sought a review of his sentence. The matter was considered by Tugendhat J. He refused an application for oral hearing. He considered the recommendations made by the trial judge, and the views expressed by the Lord Chief Justice and the Secretary of State. He was provided with victim impact statements, together with written submissions advanced on behalf of the applicant. These submissions noted the positive behaviour by the applicant in prison. Tugendhat J addressed the general principles relating to sentences following conviction for murder set out in schedule 21 of the 2003 Act . He concluded that there was no reason to depart from the views expressed by the Lord Chief Justice and the Secretary of State. In accordance with para 3(1)(b) of schedule 22 of the 2003 Act he ordered that the early release provisions should not apply to the applicant. In short, this would be a whole life order. The submission on behalf of the applicant 27. It is argued in written grounds in support of the application that this whole life order contravenes the rights provided for the applicant by the Convention. Article 7 of the Convention is said to be infringed by the imposition in 2008 of the whole life order for offences committed in 1985 by reference to sentencing criteria created in the 2003 Act . Furthermore, as there is no power in the court to review a whole life sentence, so that it is reducible neither de jure nor de facto, the applicant’s rights under articles 3 and 7 are engaged. Quite separately from the Convention, it is suggested that the whole life order made by Tugendhat J is excessive and unjustified. A fixed term should be substituted. 28. The main oral submission advanced by Mr Horwell can be briefly summarised. He did not contend that a whole life sentence was incompatible with the application’s Convention rights, and further accepted that a whole life sentence may represent just punishment. However the applicant, and others in his position, who, following the review were made subject to a whole life order, were left without any hope of or possible consideration being given to release, whatever his or their progress and therefore, such a sentence, reducible neither de jure nor de facto, was incompatible with article 3 rights. Mr Horwell drew attention to the limited circumstances in which release could be ordered by the Secretary of State contained in section 30 of the Crime (Sentences) Act 1997 . This permits the release of a life prisoner on licence where exceptional circumstances exist justifying the release on “compassionate grounds”. Mr Horwell submitted that as enacted, this is extremely restrictive in any event, and provides no hope of release on the grounds of, say, exceptional progress in prison, and in any event, inquiry has revealed that in relation to prisoners subjected to whole life tariffs, none has been released on the basis of the exercise of these powers. 29. The foundation for Mr Horwells’ submission is the decision of the Grand Chamber of the European Court of Human Rights in Kafkaris v Cyprus, 12 th February 2008. Stripped to essentials the issue before the Grand Chamber was whether the mandatory sentence of life imprisonment following conviction of murder in Cyprus constituted a breach of the defendant’s article 3 rights. However in Cyprus the mandatory order was not subject to any form of judicial discretion and the sentencer did not and could not reflect the differing levels of culpability of those convicted of murder and the varying levels of gravity of all such cases. There was no parole or licensing system, and, effectively, no arrangements for the admission back into society of any convicted murderer. The exception to this blanket prohibition was vested in the President of Cyprus who was entitled to remit or commute any sentence or to order conditional release of any convicted prisoner back into the community. Any such order required the approval of the Attorney General to whom any applications were to be made. 30. The Court’s decision was that the imposition of a sentence of life imprisonment on an adult offender was not prohibited by or incompatible either with article 3 or with any other article of the Convention. However concern arose from the imposition of an irreducible life sentence. If a life sentence was de jure and de facto reducible then, although in practice an individual life sentence might be served in full, the sentence itself was not “irreducible”. Mr Horwell suggested that the wide powers vented in the President of Cyprus were to be contrasted with the narrow powers of the Secretary of State under section 30 of the 1997 Act . It therefore could not be said that any whole life sentence imposed in this jurisdiction was reducible so as to avoid a breach of article 3. 31. There are a number of problems with the decision in Kafkaris as it applies in this jurisdiction. The most immediate, and ultimately decisive, is that it has been examined in this jurisdiction in the Court of Appeal in R v Bieber [2008] EWCA Crim 1601 and in the House of Lords in R(on the application of Wellington) [2008] UKHL 72 . These decisions bind us in this court. The decision of the Grand Chamber in Kafkaris does not. In any event, however, for Mr Horwell’s submission to succeed it is necessary to equate the whole life system as operated in Cyprus following a mandatory life sentence, and the whole life system operated in this jurisdiction. Yet as we have explained the mandatory order of life imprisonment on conviction here did not and does not carry with it the necessary consequence of incarceration for the remainder of the prisoner’s natural life. 32. As a result of the 2003 Act , following the imposition of the mandatory life sentence, the trial judge is required to assess rather than merely recommend the minimum term to be served by the appellant for the purposes of punishment and deterrence. Normally that is a finite period, and once it has been served, subject to considerations for public safety, which are addressed by the Parole Board, the prisoner may be released. Indeed once the Parole Board concludes that it is safe for him to be released, he is entitled to be released. The whole life order is exceptional. The vast majority of convicted murderers are not made subject to it. Where they are, this is not the consequence of an inexorable statute but a judicial decision, subject to review in this court, that the circumstances of the particular case are so grave that a whole life order should be imposed. In this case therefore, we are concerned with a whole life order imposed in an extreme case, rather than a whole life order which applies to every case of murder, whatever the circumstances. 33. In Bieber it was submitted that a life sentence “without any prospect of release or any reconsideration of the facts of the case and regardless of any changes which might occur in the mind or behaviour of the inmate or progress made by him towards rehabilitation” amounted to inhuman treatment. Assuming for the purposes of the argument that the whole life order imposed on Bieber was an irreducible life sentence, this court did not accept that it followed from the decision in Kafkaris that such a sentence to reflect “appropriate punishment and deterrence for a very serious offence” was in potential conflict with article 3. The conclusion was expressed in these observations by Lord Phillips of Worth Matravers CJ: “ While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies a minimum term to be served by way of punishment and deterrence before the offender’s release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days…We do not consider that the Strasbourg Court has ruled that an irreducible life sentence, deliberately imposed by the judge in such circumstances, will result in detention that violates article 3. Nor do we consider that it will do so”. 34. The court went on to consider that limited powers granted to the Secretary of State under section 30 of the 1997 Act . The court believed that in practice this power was used “sparingly”. The court, argued Mr Horwell, was not as well informed as we are, following the inquiry of the relevant Department, revealing that there have been no such cases, at any rate where the judge imposed a whole life order by way of punishment. If, however, the continued detention of a prisoner in circumstances which amount to inhuman or degrading treatment were to arise, then, assuming the Secretary of State failed to exercise his powers under section 30 of the 1997 Act , he would be subject to a judicial review requiring him to do so. In any event, in Bieber the court concluded that the question whether continued imprisonment amounts to inhuman or degrading treatment does not arise for consideration in the context of a whole life order properly imposed to reflect the appropriate punishment does not amount to inhuman or degrading treatment. 35. In Wellington the House of Lords examined Kafkaris in the context of extradition proceedings taken in the United States by a prosecutor in Missouri and in effect adopted the decision in Bieber . Lord Hoffman agreed that an irreducible life sentence, imposed to reflect the requirements of punishment and deterrence for a particularly heinous crime, was not in potential conflict with article 3. Lord Scott adopted precisely the same approach. He said, “Once, however, it is accepted that a full life tariff may be a just punishment, merited by the heinous quality of the crime or crimes for which the sentence has been, or may be, imposed, reliance on the denial of possibilities of atonement or redemption seem to me to miss the point of the sentence…if a whole life sentence of imprisonment without parole is a just punishment for the crime…I do not follow why it is said to require a reduction of the length of the just punishment sentence”. Lord Brown of Eaton-under-Heywood concluded that where a whole life term was fixed at the date of sentencing “the prisoner’s individual circumstances (including naturally the circumstances of his particular offending) will have been considered and will have been thought by the judge (or the Court of Appeal) to merit that degree of punishment, draconian though undoubtedly it is”. 36. In our judgment it is plain that the House of Lords adopted the reasoning of this court in R v Bieber . In relation to whole life terms imposed in cases of extreme gravity, we respectfully suggest that the decision of the Grand Chamber in Kafkaris does not support the argument on behalf of an applicant or appellant that the whole life sentence imposed in such circumstances constitutes a breach of any of his Convention rights. In our judgment therefore nothing in the Convention meant that Tugendhat J was precluded from making a whole life order if, in his judgment, such an order represented appropriate punishment for extreme criminality resulting in five murders. 37. We have fully examined the contention that the review procedure created by the 2003 Act constitutes or may constitute a breach of the applicant’s article 7 rights. This issue was raised by Mr Edward Fitzgerald QC in R v Pitchfork, which was heard before a differently constituted court, two days after the argument in the present application was concluded. As developed by Mr Fitzgerald, it was contended that the judge conducting the 2003 Act review is virtually bound to adopt the judicial recommendation made by the trial judge or Lord Chief Justice, alternatively that the judicial recommendations should be accorded primacy ahead of any of the considerations in schedule 21 of the 2003 Act . For the reasons set out in the judgment in R v Pitchfork, which will be handed down on the same occasion as this judgment is handed down, we disagree with the submission, which in any event is inconsistent with an earlier decision of this court in R v Caines, R v Roberts [2006] EWCA Crim 2915 . As we shall explain in R v Pitchfork , and repeat for the purposes of this judgment, the general common law principles, prohibiting retrospectivity in the criminal law, now found in article 7 which provides that “a heavier penalty shall not be imposed than the one which applied at the time when the criminal offences was committed”, are preserved by the express statutory provision which means that the outcome of the review process is that the prisoner cannot be disadvantaged. The term to be served may be reduced, or maintained, but it cannot be increased or extended. 38. We must address some further submissions. Mr Horwell suggested that Tugendhat J misdirected himself. Our attention was drawn to the comment “… there is no reason for me to depart from the view of the Home Secretary and the Lord Chief Justice in this case”. If Tugenhat J allowed the view of the Secretary of State to influence his decision, plainly he would have been wrong. It is however clear to us that in expressing himself as he did, he was simply indicating that the end result of his reflection on the issues led him to the same conclusion as the Lord Chief Justice and the Secretary of State. That was a conclusion he was entitled to reach. 39. It is equally clear that the applicant was notified in writing, many years ago, that he would indeed be subject to a whole life order. It simply cannot be suggested that there is some unfairness arising from Tugendhat J’s decision, as if, by making the order he did, he had somehow suddenly interfered with a realistic expectation in the applicant’s mind that he would shortly reach the point in his sentence where his release might arise for consideration. It is perhaps important to underline that even if the 25 year period had been adopted by Tugendhat J, that would not have involved the applicant’s release at the end of the period, but that attention could then have been given by the Parole Board to the possibility of his release on licence. 40. The occasions when a whole life order should be made whether by a sentencing judge, or the judge conducting the review under the 2003 Act , are rare, and should be reserved for the most extreme cases. We were asked to consider a number of decisions where a whole life order was not made, or was quashed on appeal, notwithstanding the extreme gravity of the offences. We have considered them. Our concern, however, is with this particular sentence. We can see no possible basis for interfering with Tugendhat J’s decision. It was neither wrong in principle nor did it produce a manifestly excessive result. We would, however, and unusually, go further. On conviction of these crimes, even when committed by a relatively young man, punishment and retribution in the form of a whole life order was fully justified.

```yaml citation: '[2009] EWCA Crim 962' date: '2009-05-14' judges: - MR JUSTICE DAVID CLARKE - 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} ======

Neutral Citation Number: [2014] EWCA Crim 747 Case No: 2013/03862/A6 , 2013/04457/A3 , 2013/04460/A2 , 2014/00377/A4 2013/04689/A5 , 2013/03756/A8 2013/03550/A5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/04/2014 Before: THE LORD CHIEF JUSTICE OF ENGLAND and WALES LORD JUSTICE TREACY and MR JUSTICE SIMON - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - JURANIR SILVERTRE GOMES MONTEIRO and others Appellants - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Adam Morgan for the appellant Gomes Monteiro James Murray-Smith for the Respondent in the appeal of Gomes Monteiro Edward Boateng-Addo for the appellant NT Duane Bridger for the appellant Smith Mohammed Hussain for the applicant Varey Michael Edmonds for the applicant Shakespeare Muthupandi Ganesan for the applicant RAB Henry Day for the applicant LD John Price QC and Benedict Kelleher for the Respondent in the other appeals Hearing date: 30 January 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Thomas of Cwmgiedd, CJ : 1. The court ordered these six appeals and applications to be heard together so that it could review whether the guidance given in R v Povey [2008] EWCA Crim 1261 by Sir Igor Judge CJ (as he then was) was being followed and applied, and so that it could decide whether any further guidance was required. We are very grateful to the Ministry of Justice and Mr John Price QC for the very considerable assistance they have given in obtaining the information to enable us to do this. The offences 2. The principal offences in relation to offensive weapons are those under s.1 of the Prevention of Crime Act 1953 (as amended) (the 1953 Act) and s.139 and s.139A of the Criminal Justice Act 1988 (CJA 1988). 3. In addition on 3 December 2012 amendments to the 1953 Act to add s.1A and to the CJA 1988 to add s.139AA came into force. S.139AA of the CJA 1988 provides for a mandatory minimum sentence on those over 18 of six months imprisonment (save where it was unjust to do so) for using a knife to threaten in a public place or school. Provision is also made for a similar minimum sentence of four months for those aged 16 and 17. S.1A of the 1953 Act makes broadly similar provision in relation to offensive weapons. The guidance in R v Povey 4. In R v Povey , Sir Igor Judge made clear the dangers caused by carrying knives and the escalation that had occurred in the number of offences involving knives and in particular the carrying of knives in public places. He made clear that sentences passed by courts must focus on the reduction of crime, including its reduction by deterrence and the protection of the public. This court in further judgments and the subsequent guidelines issued by the Sentencing Council have made clear the seriousness with which the use of a knife or similar weapon in any crime must be treated. 5. It is evident, from appeals before this court from the Crown Court and in the appeals before us, that in the Crown Court the guidance given by Sir Igor Judge and repeated by him in other cases is being followed. No further guidance is required. 6. However for offences that either do not come to court where cautions are administered or are dealt with in the Magistrates’ Court and Youth Court, the position is more complex, particularly in relation to those between 10 and 15 and those aged 16 and 17. 7. This is illustrated by some of the matters that arose in the appeals before us. For example, a caution was given to one of the appellants (Gomes Monteiro) for possession of a flick knife at a school when he was 15 – see paragraph 31 below. Another appellant (RAB) had at the age of 14 received in accordance with the statutory regime a nine month referral order for possession of a lock knife in a public street – see paragraph 84 below. A co-defendant of another appellant (Smith) who was nine months younger than Smith had received a youth supervision order for the offence for which Smith received a sentence of 30 months imprisonment - see paragraphs 56 to 59 below. A Magistrates’ court had imposed a community order on another appellant (Varey) for a second offence of carrying a knife whilst stealing from shops - see paragraphs 66 and following below. 8. We therefore asked for information about the way in which the police, the Magistrates and the Youth Court approached the imposition of cautions and sentencing respectively. ACPO Guidance on the use of cautions 9. Cautions in relation to knife crimes are issued by the police in accordance with Guidelines issued by ACPO entitled Guidelines on the investigating, cautioning and charging of Knife Crime Offences issued in July 2009. It states: “The starting point for police will be an expectation to charge 16 and 17 year olds (unless there are exceptional circumstances) in all cases. In the case of any young person aged 15 or under in the cases of simple possession with no aggravating factors, the starting point will be the issuing of a warning” 10. Account is also taken of the ACPO Youth Offender Case Disposal Gravity Matrix; its guidance is: “It is recommended that forces follow a national agreement to interpret Knife-Crime offences as follows: The first arrest of a youth under 16 for simple possession of an Offensive Weapon or Sharp Pointed Blade, with no aggravating factors, will result in the first instance with a youth conditional caution. This must be supported by an appropriate YOT intervention, preferably with elements focussed on anti-knife crime education. A youth aged 16 or over will normally be charged. The second arrest of a youth under 16 for simple possession of an Offensive Weapon or Sharp Pointed Blade will result in a charge (unless, in exceptional circumstances, 2 years have passed and it is considered appropriate to give another youth conditional caution). The first arrest of a youth of any age for simple possession of an Offensive Weapon or Sharp Pointed Blade, with aggravating factors, will result in the first instance with a charge.” 11. The most recent version of this matrix was issued in March 2013. It is essentially unchanged (save to make reference to youth conditional cautions in place of warnings). It makes clear, however, that an offence under s.139A or s.139AA of the CJA 1988 or under s.1A of the 1953 Act committed by a youth aged 16 or over should normally result in a charge and should not be dealt with by an out of court disposal. The Magistrates Courts and the Youth Court 12. The Guidance for Magistrates was revised in August 2008. Although that Guidance referred to the earlier decision which R v Povey followed, the timing meant Povey had not been handed down and the original guidance did not refer to the increase in knife crime as set out by Sir Igor Judge in that judgment . However, the Sentencing Guidelines Council issued a Note (with effect from 4 August 2008) headed “Sentencing for possession of a weapon – knife crime”, which specifically sets out the effect of the decision in Povey on the guideline. It is therefore essential that Magistrates’ Courts strictly apply the guideline as explained in this Note in relation to knife crime and the starting point of 12 weeks custody for the lowest level of offence involving the use of knives. 13. In the Youth Court the principles are set out in the Guideline of the Sentencing Guidelines Council dated November 2009 entitled: “ Overarching Principles: Sentencing Youths”. There are also a number of statutory restrictions; for example a first time offender under 15 who pleads guilty to one of the offences relating to knives or offensive weapons can only be made subject to a referral order (as we have mentioned at paragraph 7 above). The statistics 14. In the first nine months of 2013 there were 12,132 offences under s.1 of the 1953 Act and s.139 and s.139A of the CJA 1988 Act. 18% resulted in a caution, 28% resulted in immediate custody. The results have been broadly consistent for the past 5 quarters; the 28% of cases resulting in custody can be seen as an increase from 18% current before Povey , whereas the number of cautions is falling. 15. 813 offences were committed by those between 10 and 15. 43% were given a police caution and 47% a community sentence. Only 4% were given an immediate custodial sentence. 16. We were provided with statistics for 2013 that showed that out of the 89 over 18s who had pleaded guilty or been convicted of offences under s.139AA of the CJA 1988 or s.1A of the 1953 Act, 49 had been given sentences of immediate custody; 3 had received a caution; 7 community service and 19 a suspended sentence. Three were 18, 16 and 17 year olds; 10 had been sent to immediate custody. Conclusion 17. As we have stated, no further guidance is needed in relation to the Crown Court pending the issue of a guideline by the Sentencing Council. However there are two observations we make. 18. First, it is important that the Youth Court plays the closest attention to the guidance given in Povey . Given the prevalence of knife crime among young persons, the Youth Court must keep a very sharp focus, if necessary through the use of more severe sentences, on preventing further offending by anyone apprehended for carrying a knife in a public place and to securing a reduction in the carrying of knives. Such sentences fulfil the principles applicable to the sentencing of such persons as set out in s.142A of the Criminal Justice Act 2003 and the Sentencing Council Guidelines. The appeals of NT and RAB illustrate the very serious consequences that can follow from the carrying of knives by young persons and why it is of great importance that the Youth Court maintains the sharp focus called for in Povey by imposing appropriate sentences that will contribute to preventing further offending and to a reduction in knife crime. 19. Second, it is important particularly in relation to knife crime that the guidance given in respect of cautions is aligned to the sentencing practice (as it should be in the light of our observation) in the Youth Court, the Magistrates’ Court and the Crown Court. There is an urgent need for this to be done. 20. We turn to the six cases. JURANIR SILVETERE GOMES-MONTEIRO The background 21. On 27 October 2012 there was a party to celebrate a birthday in Hackney. Many of those who attended were of the Guinea Bissau community in London. Amongst those was Jason Dos Santos. 22. Through various social networking sites others who had not been invited came to the party. Some belonged to a gang called “the Portuguese Mafia”. At the party, probably as a result of a previous incident at an earlier party, members of the gang set about one of the others. There was a serious and violent fight within the house between a number on both sides. Knives were used and at least one was seriously stabbed. Jason Dos Santos escaped from the house, most likely through the back garden, and ran down the street with others, being pursued by members of the gang. He was caught by eight members of the gang who attacked him with at least one knife and a belt, kicked and punched him. He received serious injuries which we shall describe. The incident was caught on CCTV. 23. A woollen hat belonging to the appellant, then aged 18, was recovered from the scene of the stabbing. Of all the participants in this serious violence he was the only one to be arrested and tried. On 17 May 2013 at the Crown Court at Snaresbrook before Mr Recorder Holborn and a jury he was convicted of wounding with intent contrary to s.18 of the Offences against the Person Act 1861 (the 1861 Act) and having an offensive weapon. He was subsequently sentenced by the judge on 21 June 2013 to nine years detention in a young offender institution for the offence contrary to s.18 of the 1861 Act with a concurrent sentence of one year for having an offensive weapon. He appeals against sentence by leave of the Single Judge. The seriousness of the offence 24. We consider first the seriousness of the offence. The judge found that the appellant, although he might not have been a member of the Portuguese Mafia gang, had joined in with that gang on that night at the party and involved himself in the culture of that gang. It is clear that he had had a substantial quantity of drink. He then joined in the pursuit of Jason Dos Santos down the road. 25. It is common ground on the appeal that the appellant approached the scene of the attack approximately 30 seconds after the main group chased the victim along the street. It is clear on the judge’s finding and the jury’s verdict that he joined in the attack at that stage whilst another gang member stabbed Jason Dos Santos and others subjected him to a vicious and brutal beating. The judge was satisfied that the appellant used a belt in the attack on Jason Dos Santos and stamped on him. The judge was satisfied that the jury convicted the appellant on a joint enterprise basis because, apart from using the belt and stamping on Jason Dos Santos, he was fully aware that Jason Dos Santos was being stabbed. 26. It has been submitted that those findings are open to criticism. We cannot see any basis for criticising them. The judge found first that he was a , but not the , leading member of the group that attacked Jason Dos Santos; second that he most certainly did not have a subordinate role in the attack. We again do not see how those findings can be criticised given the fact that the judge heard the evidence at the trial. The harm caused 27. We next turn to the harm caused. The judge obtained for the purposes of sentencing statements from the doctors at the hospital about the injuries sustained by Jason Dos Santos. He also had statements from two police officers who had tended him at the scene and taken him to the hospital. We see no reason to criticise the judge for taking into account all of that evidence. 28. There were a total of eleven wounds inflicted on Mr Dos Santos, three on the torso (one of which was to the chest), six on the legs and two on the scalp. They required stitching in theatre. They had a lasting physical and emotional effect on him. One of the wounds passed deeply behind the right femur. He was in hospital for two to three days. It is quite clear from the statement of the police officers that there was significant bleeding at the scene and on the way to hospital and the victim was veering in and out of consciousness. 29. Mr Dos Santos also made a victim personal statement in which he described the longer term effect of the attack on him; although he had made a good physical recovery (apart from the scarring and difficulty in bending and moving his leg) he did not go out to parties and did not trust people. The sentence 30. The judge placed the offence into category 1/category 2 of the Guideline; it was submitted on behalf of the appellant that the judge should have concluded the offending behaviour fell within category 2, principally on the ground of his lesser role; as we have set out we cannot accept this. This was, in our view, an offence within category 1. A person who has caused the injury of the type caused in this case and has the culpability of participating in an attack of this type in a leadership role, is plainly within category 1. The use of a knife in a public street is a very serious aggravating factor. 31. The appellant was only 18 both at the time of the attack on Jason Dos Santos and his conviction. Nonetheless he had a caution imposed by the Cambridgeshire Police for carrying a flick knife on school premises imposed on 29 March 2010 (when he was 15) in accordance with the guidance to which we have referred at paragraphs 9 to 11 above and a conviction for common assault on 17 January 2012 for which he had received a referral order. We take the view that a previous conviction for the possession of any bladed article, but particularly a knife such as a flick knife, is a seriously aggravating factor in a subsequent offence involving a knife for the reasons we have given. 32. The only mitigating factors were his age and his working on a part-time basis whilst also engaging in full-time education; he spoke a number of languages. He had obtained eight GCSEs with good grades and had gone on to study art as well as travel and tourism. 33. In the light of the factors we have set out, particularly his use of the belt, his knowledge of the use of the knife in the attack and his previous caution for possession of a flick knife, there is no proper ground for criticising the sentence imposed by the judge. The appeal is dismissed. NT The background 34. On the evening of Monday 18 February 2013 KW (the victim) who was then aged 14, had been at McDonald’s in Lewisham with friends. The appellant, who was born on 10 November 1999 and then aged 13, and another youth, SB, confronted the victim wanting a battery for a mobile phone. Nothing came of that but the victim and his friends went to the Ladywell Youth Club to roller skate. The appellant and his friends also went to the same club. 35. When the youth club closed at 9.15 p.m. the youths congregated outside. An argument developed between another of the appellant’s friends, TM, and a girl. TM turned on the victim. That fight descended into insults and violence between a number of those present, including the appellant. The victim hit back at TM and the appellant. The victim who was still on roller skates, then calmed down and skated a short distance away. The appellant ran after him, produced a knife and stabbed the victim twice in the chest and abdomen. The victim described the knife as a fat knife with a long blade; one witness described it as 2.5 inches wide, but not that long. Another as a kitchen knife. It was never found. TM ran off. The victim collapsed. He was taken to hospital by helicopter and underwent emergency surgery. The appellant was interviewed the following day and made no comment on the advice of his solicitors. 36. On 2 July 2013 the appellant was convicted at the Crown Court at Woolwich before His Honour Judge Moss QC and a jury of attempted murder. He was subsequently sentenced on 26 July 2013 to a 13 year extended sentence under s.226B of the Criminal Justice Act 2003, comprising a custodial term of ten years and three years extended licence. His application for permission to appeal had been referred to the court by the Registrar. We grant leave. The seriousness of the offence 37. We consider first the seriousness of the offence. On the jury’s verdict the appellant had attempted to kill the victim. The judge who had had the benefit of hearing the evidence found that the appellant had come to the youth club on that evening armed with a knife; the judge expressly rejected the applicant’s evidence that he had been given a knife at the scene. The harm caused 38. It is clear that the harm was of a very serious level. The wound was so deep that the knife entered through the chest and penetrated the kidney. He was found to have a collapsed lung, a penetrating gastric injury, a shattered spleen and very serious renal injury. He underwent emergency surgery, including the removal of the spleen. He was in the high dependency unit for two days; his wounds have healed, but he will require life-long antibiotic medication. The judge was satisfied that he was lucky to have survived. The aggravating and mitigating features 39. An aggravating feature of the case was that the applicant, despite the fact that he was then only 13, had a number of previous convictions. i) On 7 July 2011 he had been convicted of common assault at the Youth Court and received a six month referral order. He had been part of a group that had surrounded a 14 year old girl in a park; he was said to have held a knife to her throat and demanded her phone. Although he pleaded guilty to the assault he denied possession of a knife. ii) On 10 May 2012 he was convicted of assault occasioning actual bodily harm and received a nine month rehabilitation order. The case against him was that he had taken a magazine from the victim, and then assaulted the victim punching him in the face. iii) On 20 December 2012 he was convicted of disorderly behaviour and received a conditional discharge. He had used threatening and abusive language to a bus driver. As the judge rightly commented, he had a pattern of offending behaviour that was of great concern. 40. It is clear from the pre-sentence report that the applicant had had a difficult home life, living first with his mother and then for some years with his father with little contact with his mother. He developed emotional and behavioural difficulties at school and was transferred to a school to cater for children with those needs. At that school and at the secure children’s home at which he had been placed after his remand for the purposes of these proceedings, reports showed his ability to do very well at subjects but to have serious behavioural problems. An assessment carried out showed that he had suspected Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder; he had then been assessed as having moderate to high Attention Deficit Hyperactivity Disorder, Conduct Disorder and Oppositional Defiance Disorder. He was being placed on medication. The judge also had a report from the secure children’s home. 41. The appellant accepted that he had stabbed the victim. Although he continued to deny that he intended to cause serious injury or to kill the victim, the writer of the pre-sentence report accepted that the appellant showed genuine remorse for what he had done. The writer of the pre-sentence report was nonetheless of the view that the applicant presented as a high risk of causing serious harm. The finding of dangerousness 42. The judge concluded that he was a youth who met the dangerousness criteria of s.226B of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). He considered that an extended determinate sentence was the appropriate sentence. 43. In R v Burinskas [2014] EWCA Crim 334 this court set out at paragraphs 24-30 the main features of the operation of the provisions of LASPO relating to extended sentences (s.226A) and at paragraphs 41-44 the approach that a court should follow when applying the dangerousness provisions of the Act. It is not necessary to make any separate observations in relation to s.226B in relation to this appeal. 44. On the appellant’s behalf it has been contended that the judge was not entitled to make the finding of dangerousness and should not have done so without obtaining a full psychiatric report. 45. We were provided with a more recent report from the secure children’s home at which the appellant was held. His medication had been changed and his behaviour had improved significantly; he had also shown more commitment to his learning and engagement with the staff; there has been a vast improvement in his school reports. He was responding well to the offending behaviour programmes. 46. We have carefully considered the further material before us. It does not cast any doubt on the basis on which the judge proceeded. On all the evidence the judge was entitled to make a finding of dangerousness. He had heard the evidence at the trial; the pre-sentence report and the report from the secure children’s home provided considerable information about his mental state. It was not necessary for the judge to have a psychiatric report. The length of the sentence 47. It was also contended that a custodial sentence of ten years was manifestly excessive. 48. In Attorney General’s Reference 127 of 2010 [2011] EWCA Crim 760 , [2011] Cr App R (S) 99 this court, drawing on the Sentencing Guidelines Council’s youth sentencing guidance, set out at paragraph 17 a guide to the proportion of the sentence of imprisonment for an adult prisoner a sentencing court should impose when considering such a sentence for a person of the age 15, 16 and 17, having regard to both his chronological age and his maturity. For a person of 13 that proportion will be even lower. 49. It seems to us in the light of the further information before us, particularly the effect of the medication, his real engagement with the staff at the secure children’s home and the youth of the appellant, the custodial term of ten years for a person of the appellant’s youth was too long. We propose therefore to quash the custodial term of ten years, but substitute for it a custodial term of seven years, leaving in place the extension period. We therefore allow the appeal to that extent; his sentence will therefore be an extended sentence of ten years, comprising a custodial term of seven years and an extension period of three years. RHYS SMITH The background 50. On 10 November 2011 the appellant (born on 4 May 1994 and then aged 17) and a co-defendant, Willis (born on 9 February 1995 and then aged 16), approached a group of young males and females aged about 16 at a bonfire and firework night in a park in Rye. After speaking amicably, Willis and the appellant began shouting and swearing at the group, claiming to be from a gang in London. Willis pulled out a knife and held it to the throat of one of the young people. When another of the group of young people intervened, Willis held the knife to his throat. Willis then waved the knife around at the faces of the young group, saying that he was going “to do” all of them. Willis was challenged by one of the group and then backed off shouting and swearing. 51. The appellant then asked Willis for the knife, took it from him and shouted at the group holding the knife outstretched: “Do you think I’m a prick?” He then held the knife to the face of one of the group saying “Do you think I’m a dickhead? Do you not think I will stab all of you including you two girls?” It was clear that the group of young persons was very frightened. 52. The police were called and the appellant and Willis were detained. The knife had been thrown away. The appellant told the police it was in the bin. It was a kitchen knife with a serrated blade about four inches long. 53. At his interview the appellant gave a prepared statement saying he was in drink, apologising for his behaviour and saying he would not do so again. The procedural history: the sentences passed on the appellant and Willis 54. Willis and the appellant were bailed to attend the Hastings Magistrates’ Court on 20 November 2011. Willis attended and entered a plea of not guilty; the appellant did not attend. A warrant was issued and the matter was adjourned for two weeks to 4 December 2012. At the hearing on 4 December 2012 Willis was committed for trial at the Youth Court, as the warrant against the appellant had not been executed and Willis, though only nine months younger than the appellant, was still only 17. 55. On 6 December 2012 the appellant was arrested. He was then sentenced at the Canterbury Magistrates’ Court to a period of imprisonment for other matters. On 20 December 2012, when he was 18, he pleaded guilty at Hastings Magistrates’ Court to possession of a bladed article and was committed for sentence. On 31 January 2013 in relation to the events we have described he was sentenced at the Crown Court at Lewes by His Honour Judge Kemp to 30 months detention at a Young Offender Institution. 56. Willis changed his plea on 23 April 2013 shortly before his trial that had been fixed in the Youth Court for 1 May 2013. He had convictions for malicious damage in 2007, robbery in 2009, battery in 2010, and racially aggravated intentional harassment in 2011. He was sentenced by the Youth Court at Eastbourne on 4 June 2013 to a Youth Rehabilitation Order with programme and supervision requirements. 57. We asked for enquires to be made as to whether the Youth Court at Eastbourne was aware of the sentence passed on the appellant. There was no record and no recollection that the matter had been drawn to the attention of the Youth Court. We infer that it is highly unlikely that the Youth Court was told. The CPS accepts that it was at fault in failing to draw the sentence imposed on the appellant to the attention of the Youth Court. It has resulted in serious injustice. The basis of the appeal 58. The appellant had a history of offending behaviour. In April 2009 he was given a four month referral order for theft and possession of cannabis. In March 2010 he was given a further six month referral order for battery. In November 2010 he was given an 18 month referral order for theft, but that was revoked in April 2011 when he was sentenced to a four month detention and training order. He had further convictions for theft and other dishonesty in 2012. In September 2012 he was given a conditional discharge by Magistrates for possession of a prohibited weapon – a device for the discharge of CS gas. At the time of sentence he had unpaid fines and other orders totalling £810.10 and was subject to an 18 month suspended sentence; he had not complied with the conditions; he had breached them twice and committed two offences during its operation. 59. The appellant appeals by leave of the Single Judge solely on the grounds of disparity with the sentence imposed in the Youth Court on Willis. He did not seek leave on the grounds that the sentence was either wrong in principle or manifestly excessive viewed on its own, given the seriousness of the offence and his past offending behaviour. As the Single Judge rightly observed in granting leave to appeal, though the sentence was severe, it was not manifestly excessive in the light of the offence and the previous convictions. An extension of time was granted by the Single Judge. 60. The sentence passed by the Youth Court is inexplicable given the gravity of the offence committed by Willis. He should have received a significant custodial sentence in the form of a Detention and Training Order. The disparity in their punishment, even taking into account the more serious prior offending behaviour of the appellant and the fact he was older by nine months, was unjust: see the discussion at paragraphs 7 and 8 of R v Coleman [2007] EWCA Crim 2318 . Accordingly we quash the sentence of 30 months youth custody (though entirely merited) and pass in its place a sentence of 20 months youth custody. PETER WILLIAM VAREY The background 61. In the early afternoon of 3 November 2013 the applicant was shopping at an ASDA supermarket. He was seen to put an item into his pocket, discard the other items and make to leave. When he was stopped by security guards, he produced a Stanley knife from his pocket and threatened the guards. They backed away and he ran from the store. 62. On the following day, 4 November 2013 the applicant entered Millets where he stole a North Face jacket. 63. Some days later on 26 November 2013 the applicant was seen to be acting suspiciously in Boots. He was searched and found to be in possession of a Stanley knife. He was arrested 64. On 12 December 2013 at the Crown Court at Bradford he pleaded guilty to three offences. He was sentenced by the Recorder of Bradford, His Honour Judge Roger Thomas QC, to 15 months imprisonment for threatening with a bladed article on 3 November contrary to s 139AA of the CJA 1988, to six months consecutive for the theft on 14 November and to 15 months consecutive for possession of a bladed article on 26 November contrary to s.139 of the CJA 1988, making a total of three years. His application for leave to appeal was referred to the court by the Registrar. The application for leave to appeal 65. The applicant was some 41 years of age. He had a very lengthy record of previous offending commencing in 1994. The offences were largely theft, but there were also offences of resisting arrest and breaching non-custodial orders. Much of the offending was due to his significant drug habit. It is important to note that in July 2012 he had been sentenced to six months imprisonment for being in possession of a craft knife. In March 2013 he was given a community order for theft from shops and being in possession of a craft knife. He continued to steal from shops. On 25 October 2013, shortly before the first of the present offences, the magistrates had deferred sentence on offences of theft until January 2014. 66. Although it was accepted that no complaint could be made for the sentence in respect of the offence of threatening with the knife on 13 November 2013, it was contended that the sentence for possession of a knife on 26 November 2013 was too long, as he had not then threatened anyone with it; that the sentence for theft was too long; that the sentences in total were too long. 67. We do not agree. The judge rightly identified the gravity of the offences for which the appellant was sentenced and the escalation from theft to committing such offences as carrying a Stanley knife. He had been given a short sentence of imprisonment by the Crown Court at Bradford for carrying a knife in July 2012; he had been given another chance in March 2013 when the wholly exceptional course was taken by magistrates in giving him a community order and a drug rehabilitation order for possession of a craft knife when stealing. He had not desisted. Nor, as the evidence from the probation officer made clear, had he cooperated with the probation service. A very lengthy sentence was inevitable; the total of three years cannot in any way be criticised. There is no merit in the application. It is therefore refused. HARRY WILLIAM SHAKESPEARE The background 68. In the early hours of 15 June 2013 the victim and a friend went to meet the applicant, then aged 22, to buy some cocaine. The victim approached the applicant in his car and handed him £40. The applicant did not hand over any drugs but showed the victim a large knife. He accused the victim of trying to set him up for a robbery. He got out of his car, but did not take the knife with him. He assaulted the victim, punching him numerous times about his face and head and kneeing him in the left eye. The attack caused the victim bruising and swelling to the left eye, bumps to the left side of his head and forehead and a minor cut to his nose. The applicant then got back into the vehicle. 69. The victim, fearing that the knife would be produced and used, ran back to his friend’s car. The friend drove off. The applicant who was in drink followed at high speed; he had no licence and no insurance. He rammed the car. The friend was able to continue to a police station, although followed by the applicant at high speed most of the way. 70. On 28 June 2013 the applicant pleaded guilty before the Magistrates to threatening with a bladed article in a public place, dangerous driving, theft and assault. He was committed to the Crown Court for sentence. 71. On 8 August 2013 at the Crown Court at Chelmsford before His Honour Judge Turner QC, he was sentenced to a total of 21 months imprisonment. A six month sentence was passed for threatening with a bladed article contrary to s.139AA of the CJA 1988 and consecutive sentences of 12 months, one month and two months respectively were passed for dangerous driving, theft and assault. The Single Judge refused leave to appeal. The applicant renews his application to this court. The application for leave to appeal 72. Although the applicant was 23 at the time of the sentencing hearing, he had appeared before the courts on nine previous occasions largely for drugs offences, but including one offence of possessing an air gun in a public place. In March 2010 he was sentenced to 30 months for robbery and on 13 August 2010 to a consecutive sentence of 12 months for assault occasioning actual bodily harm. He was on licence at the time of these offences. 73. Although it was accepted that it was permissible to pass a consecutive sentence for the offence of dangerous driving, it was argued that it was wrong to pass consecutive sentences for the other offences; they should have been made concurrent. 74. In our view no criticism can properly be made of the total sentence of 21 months. The sentence of 12 months for the dangerous driving was entirely justified. There was no basis for departing from the minimum sentence of six months for the offence of threatening with a bladed article under s.139AA of the CJA 1988. It would have been permissible for the judge to have passed a longer sentence for the offence under s.139AA to reflect the theft and the assault, but the way the judge sentenced the applicant made clear that he received the statutory minimum for the offence under s.139AA and received a further three months for the assault and theft. 75. The application is refused. RAB The background 76. On the afternoon of Wednesday 26 December 2012 two youths bullied a 14 year old schoolboy who, after leaving the Walworth Academy in his school uniform, was in a street near the Old Kent Road. Others joined in the bullying including the applicant, then aged 16, who lashed out at him. A knife was seen tucked into the waistband of one of them. A truancy officer intervened. Before the incident escalated further the 14 year old ran off and the youths dispersed as they saw a police van. The 14 year old telephoned a friend, Huy Pham (18 years old), and told him what had happened. Pham told the 14 year old to wait. Pham then arrived in a motor vehicle driven by Ayodele (who was 20) and Chambers (aged 21) as a passenger. The 14 year old got into the vehicle. They drove to an estate in Walworth. 77. The 14 year old recognised a group of youths standing on a balcony as those who had confronted him. The group included the applicant. Pham, Chambers and Ayodele went up to the balcony and spoke to the group about bullying their 14 year old friend. They wore hoods and their faces were masked. 78. The applicant was unable to get away. There was a confrontation. Pham hit the applicant with a belt buckle. Chambers pushed the applicant. The applicant then produced a knife and stabbed Chambers in the chest, penetrating his heart. Chambers collapsed and died. The applicant then threatened Ayodele with a knife. Pham tried to run away. The applicant caught him but Pham curled up in an attempt to protect himself. The applicant lent over and stabbed Pham in the leg. Ayodele then punched the applicant who turned and swung the knife, cutting Ayodele’s neck in such a way that the wound required five stitches. 79. The applicant was identified from YouTube footage and tried at the Crown Court at Southwark before His Honour Judge Pitts and a jury for three offences : i) The murder of Sean Chambers. ii) Wounding with intent of Ayodele. iii) Wounding with intent of Pham. 80. He was acquitted of the murder of Sean Chambers and wounding Ayodele with intent. He was convicted of wounding Pham with intent. It is clear that by the acquittals in respect of the count of murder and the s.18 offence in respect of Ayodele, the jury accepted the defence of self defence. The judge sentenced the applicant to six years detention under s.91 of the Powers of Criminal Courts (Sentencing) Act; he stated that if the applicant had been over 18, he would have received a sentence of 8-10 years. Leave to appeal was refused by the Single Judge. He renews his application to the full court. The seriousness of the offence and the harm caused 81. We first consider the seriousness of the offence. The judge who had heard the evidence was entitled to find that the applicant was carrying the knife, not because he was expecting particular trouble nor because of threats; he was carrying it for protection as part of his ordinary daily clothing, because it made him feel safer or perhaps because it added to his aura with other young people. That cannot be any justification for carrying a knife or bladed weapon. The judge found there was absolutely no need for him to have taken out his knife when he tried to get away. There was no need for him to have used the knife on Pham. The judge concluded that he was under no threat from Pham as he lay curled on the floor. The evidence was clear that the applicant leant over and deliberately stabbed him. The application for leave to appeal 82. There can be no doubt, as the judge was plainly entitled to find, that the very serious aggravating factor in this case was the fact that the appellant carried a knife on him as an ordinary part of his everyday appearance. He had deliberately used the knife on Pham when he was on the ground. It was very serious criminality. 83. As to the harm caused, the wound was a 1-2 cms long wound to the left thigh. It was closed with three stitches. 84. The applicant had had a difficult upbringing, going to Jamaica and then returning to the UK. On 22 September 2010 when was just 14 he pleaded guilty to possessing a lock knife in a public place. This related to an incident three months earlier when he was 13. He had been with a group of other youths when the police stopped them; he attempted to dispose of it, but was noticed. His sentence was a nine month referral order 85. The judge was entitled to conclude that there was little provocation in relation to the applicant’s stabbing of Pham. It was an offence which fell at the top end of category 2. His previous conviction for carrying a lock knife was a seriously aggravating factor. In our judgment, the sentence of six years, taking account of the applicant’s age, cannot be faulted. The application is refused. LD Background 86. On 31 October 2012 the complainant, a youth then aged 15, was at a party in Hitchin. The applicant, who was born on 22 June 1996 and then aged 16, and some of his friends were also at the same party. The complainant had been associating with a girl whom the applicant had hoped would become his girlfriend. The applicant felt slighted as a result of a previous incident and that he had been shown disrespect. 87. Whilst the applicant and his friends were in the kitchen he enlisted their help, put on some gloves, picked up a knife and lunged towards the complainant, aiming for his abdomen. The complainant managed to move out of the way a little but was stabbed in the inner thigh. The complainant kicked out, managed to free himself and ran out of the kitchen whilst one of his friends grabbed the applicant’s wrist to prevent him using the knife again. The complainant made his way outside and was found bleeding profusely. An ambulance attended and he was taken to hospital where his wound was stitched; the judge commented that it was good fortune that the femoral artery was not severed. The victim personal statement made clear that, although he did not have any residual pain or any other physical effects, he was still affected by the incident at home and at school; he did not go out at all. 88. The applicant was arrested some days later. He was tried at the Crown Court at Cambridge before His Honour Judge Hawkesworth and a jury on a count of wounding with intent. He was convicted of that offence on 3 May 2013. On 7 June 2013, when aged 16, he was sentenced to an extended sentence of ten years imprisonment, comprising a custodial term of six years and an extension period of four years. His application for leave to appeal was refused by the Single Judge. He renews it to this court. The application for leave to appeal 89. It is accepted on behalf of the applicant that when the judge placed the offence within category 2 of the sentencing guideline, he was correct in doing so. Greater culpability existed in view of the use of the weapon, the intention to commit more serious harm than actually resulted from the offence and the circumstances in which the crime was committed. 90. It was also accepted that the judge was entitled to find that the applicant was dangerous. There were ample grounds for doing so given his record of previous offending to which we will refer, the judge’s own assessment and the careful pre-sentence report. 91. The ground of appeal is that the custodial term was too long. It is premised upon the submission that the judge failed to give sufficient weight to the age of the applicant and to take into account his background circumstances. As was set out in the pre-sentence report, his family background was chaotic, he was beyond the control of his mother and used to getting his own way for a long time, associating with other criminals of his age and acting as a leader. 92. Although he was only 16, he had a significant criminal record. On 9 January 2008 when he was not yet 11 he was convicted of using threatening words or behaviour. He was given a referral order a few months later. On 13 August 2008 he was convicted of another similar offence and given a supervision order with a curfew and electronic tagging. Encompassed within those sentences were two further offences of malicious damage and common assault. In February 2008 he was convicted of arson, two offences of malicious damage and two offences of battery. On 13 August 2008 he was convicted of burglary and theft. On 19 November 2008 he was convicted of two offences of battery. On 5 February 2009 he was found in breach of his curfew order. On 26 March 2009 he was found guilty of theft, malicious damage and battery. On 5 January 2010 he was convicted of common assault and given his first custodial sentence of detention and training for four months. On 11 March 2010 he was found guilty of failing to comply with that order. On 1 July 2010 there were numerous further failures to comply with that order. On 1 August 2010 he was found guilty of malicious damage. He was convicted of a similar offence on 9 December 2010. There were subsequent further convictions on 20 January 2011 for malicious damage. On 13 June 2011 he was involved in aggravated vehicle taking and given a further detention and training order for four months. On 15 July 2011 there was theft from a dwelling and on 15 December 2011 theft from a person. On 30 August 2012 there were two offences of battery on two females and further offences of failing to comply with orders imposed upon him. On 27 September 2012 he was made subject to a youth rehabilitation order which was in force at the time of this offence; despite his arrest and remand for this offence he was given a four month detention and training order on 10 January 2013 by magistrates for breach of the youth rehabilitation order imposed on 27 September 2012. 93. The pre-sentence report recorded that, although he had been under statutory supervision for the past five years, he had always re-offended and failed to comply with requirements. He had been placed in custody seven times. He had made no real use of the help offered, except for short periods. In his period of remand after October 2012 he had been highly disruptive and involved in violent incidents though he had in the six weeks prior to sentence been better behaved. He refused to cooperate with the writer of this pre-sentence report. He expressed no remorse. 94. In our judgment the judge’s approach to sentencing this applicant cannot be faulted. He had regard to all the relevant matters and properly discounted the sentence that would have been applicable to an adult. This application is therefore refused.

```yaml citation: '[2014] EWCA Crim 747' date: '2014-04-16' judges: - 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 CASE NO: 2022 01569 A4 NCN [2022] EWCA Crim 1812 Royal Courts of Justice Strand London WC2A 2LL Thursday 3 November 2022 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MRS JUSTICE COCKERILL MR JUSTICE CAVANAGH REX v JAMIE DEAN BRADFORD __________ 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 OLAJIDE LANLEHIN appeared on behalf of the Applicant _________ J U D G M E N T (Approved) THE VICE PRESIDENT: 1. This applicant pleaded guilty on the day fixed for his trial to an offence of arson being reckless as to whether life was endangered. After an adjournment to obtain both a pre-sentence report and a psychiatric report, he was sentenced by Recorder Fields, sitting in the Crown Court at Luton, to 4 years 5 months' imprisonment. His application for leave to appeal against that sentence was refused by the single judge. It is now renewed to the full court. 2. The offence was committed at the ground floor flat of Anthony Summerfield, a disabled man with limited mobility. He and the applicant had known each other for some years but had fallen out. On the afternoon of 16 March 2021 the applicant rang Mr Summerfield and threatened to burn his mobility scooter and smash up his house. That evening the applicant was driven to the flat. Mr Summerfield was in the flat. His mobility scooter was parked outside and his lights were on. At least one person was in the flat immediately above. 3. The applicant made an unsuccessful attempt to break in, smashed a window and then used an accelerant to start a fire on an outside window ledge. He then departed, taking the can of accelerant with him. 4. Fortunately no serious damage was done before the fire went out. Mr Summerfield was not physically hurt. He was, however, badly affected by the incident. In a victim personal statement made about a year later he spoke of the fear he had felt at the time and had continued to feel ever since. Fears for his safety had caused him to leave the flat, which had been his home for 3 years and where he had a good support network of neighbours. He had subsequently moved home again because of fear that the applicant or his associates would find him. An important medical operation had been cancelled and rescheduled because of his changes of address. He said that the post-traumatic stress disorder from which he had already suffered had become severe since this incident. He was constantly anxious and on edge. 5. The applicant (now in his late 30s) had a number of previous convictions for offences of violence, disorder and damage. In October 2021 he was sentenced to imprisonment for an offence of affray committed in September 2019. 6. Both the pre-sentence report and the psychiatric report referred to the applicant's substance misuse and excessive drinking over a number of years. The author of the pre-sentence report assessed him as presenting a high risk of harm to persons against whom he held a grievance. The consultant forensic psychiatrist diagnosed a mental and behavioural disorder due to polysubstance misuse, and moderate episodes of depression with anxiety symptoms, but did not make any specific psychiatric recommendations. 7. The judge was unwilling to accept a written basis of plea, in which the applicant claimed that he did not know anyone was in the property at the relevant time, without first hearing evidence. The applicant declined to give evidence. 8. The judge rejected a submission both by prosecution counsel and by Mr Lanlehin, who then appeared, as he does today, on behalf of the applicant, that the offence came within category 3B of the Sentencing Council's relevant definitive guideline. The judge placed it in category 1B, with a starting point of 6 years' custody and a range from 4 to 10 years' custody. He identified a number of aggravating factors. He accepted that the applicant had done well whilst in custody and was addressing issues in his life. He did not accept the assertion of genuine remorse on the part of the applicant. 9. The judge concluded that the appropriate sentence before credit for the late plea would have been 5 years 6 months' imprisonment. He reduced that by 10 per cent to reflect the guilty plea and made a further reduction of 6 months because of the particular difficulties faced by prisoners as a result of the Covid 19 pandemic. Thus he imposed the sentence of 4 years 5 months' imprisonment. 10. Mr Lanlehin submits that the sentence was manifestly excessive, in particular because the judge wrongly categorised the offence and so took too high a starting point, wrongly refused to accept that the applicant was genuinely remorseful, wrongly dismissed the rehabilitative work which the applicant had been undertaking in custody and failed to take account of the difficult conditions in prison. Mr Lanlehin goes on to submit that the judge was wrong to find that Mr Summerfield had suffered very serious psychological harm when there was no expert evidence to that effect and when the applicant had made a recording of a phone conversation in which he alleged that Mr Summerfield was blackmailing him. 11. We are grateful to Mr Lanlehin for his very clear and well-structured submissions. 12. We consider first the categorisation under the guideline. The offence plainly involved category B culpability. The judge found that it involved category 1 harm because very serious psychological harm was caused to Mr Summerfield. As is made clear by the decision of this court in R v Chall & Ors [2019] EWCA Crim 865 , expert evidence is not a necessary prerequisite of such a finding: a judge may make it if sufficient evidence is provided by a victim personal statement. In our view the judge was, just, entitled to make the finding in this case, having regard to the evidence of increased PTSD, constant anxiety, repeated house moves and consequent dislocation from the established support of neighbours. The starting point and category range were therefore as the judge identified them. 13. But even if the harm fell somewhat below the level of category 1, the suggestion that this was a case of "no or minimal" psychological harm and therefore in category 3 is, with respect, wholly unrealistic. This was on any view high in the range of significant psychological harm covered by category 2, for which the starting point is 4 years and the range 2 to 6 years. It will be noted that the sentence passed by the judge, before giving credit for the guilty plea, was below the starting point of category 1B and within the category 2B range. 14. There were many aggravating features of the offence: relevant previous convictions; the commission of the offence either whilst on bail or at least whilst under investigation for the 2019 affray; the planning and premeditation involved in the arson; the use of an accelerant; the motive of revenge; and the vulnerability of Mr Summerfield, who would have been placed in great peril if the fire had taken hold. 15. We do not accept the submission that the judge simply dismissed matters put forward in mitigation. The reality is that there was comparatively little mitigation. Neither the psychiatric report nor the pre-sentence report provided any basis for finding that the applicant's culpability was to any significant degree reduced by his mental health issues. He is to be commended for the efforts he has made to address his alcohol and substance abuse and to better himself whilst in prison; and the judge rightly took that into account. The judge was nonetheless entitled to reject the claim of genuine remorse for committing this offence. That claim was inconsistent with the applicant's conduct in denying the offence and putting forward a defence of alibi between his arrest in March 2021 and his trial date in late January 2022, and in then pleading guilty on a basis which was rightly rejected by the judge. Moreover, nothing which the applicant was recorded as saying to the authors of the two reports displayed any appreciation of, or regret for, the harm he had caused to his victim. 16. It follows that a balance of the aggravating and mitigating factors justified a significant upwards movement from the starting point. 17. Finally, the judge did take into account the difficult conditions in prisons and made a significant reduction on that account. 18. For those reasons, grateful though we are to Mr Lanlehin for his helpful submissions, we reach the same conclusion as did the single judge. There is no arguable basis on which it can be said that the sentence was manifestly excessive. 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: '[2022] EWCA Crim 1812' date: '2022-11-03' judges: - LORD JUSTICE HOLROYDE - MRS JUSTICE COCKERILL - MR JUSTICE CAVANAGH ```

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. 2003/05750/A2 Neutral Citation Number: [2004] EWCA Crim 287 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 3 February 2004 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE RICHARDS and MR JUSTICE HENRIQUES __________________ R E G I N A - v - SHANE P __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ DR D THOMAS appeared on behalf of THE APPELLANT MISS J M DAGNALL appeared on behalf of THE CROWN ____________________ J U D G M E N T Tuesday 3 February 2004 THE LORD CHIEF JUSTICE: I will ask Mr Justice Henriques to give the judgment of the court. MR JUSTICE HENRIQUES: 1. In addition to considering the length of this sentence, this appeal focuses upon the propriety of courts making anti-social behaviour orders and suspending such orders pending the release from custody of the defendant. 2. The appellant has the leave of the single judge to appeal firstly against two incidental unlawful sentences, which do not affect the sentences to be served, and to argue matters relating to the anti-social behaviour orders. The full court today has granted leave to appeal against the totality of the sentence. 3. The appellant, who was born on 7 May 1987, appeared before Judge Ensor at the Manchester Crown Court when he was 16 years and almost two months old. He is now 16 years and nearly nine months old. He pleaded guilty in the Crown Court sitting at Manchester to a total of twelve offences, all of which took place between 20 and 26 March 2003, when he was 15 years and 10 months old. 4. On the first count he was sentenced to twelve months' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for an assault with intent to rob. He had chased a 12 year old boy across a park and hit him with a stick whilst demanding money and his mobile phone. 5. Count 2 was a charge of theft for which a concurrent sentence of twelve months' detention purporting to be pursuant to section 91 was passed. The appellant approached a 14 year old boy, told him that someone had stolen his mobile phone and asked to look at the phone belonging to that boy. The boy produced his phone and the appellant grabbed it before cycling off. 6. Count 3 was a charge of robbery for which a consecutive sentence of 12 months' detention was passed. The appellant approached a 15 year old boy and threatened to hit him with a bat unless he handed over his phone. When he did so the appellant snatched it and ran off. 7. Counts 4-11 involve four allegations of false imprisonment and four linked allegations of attempted robbery for which sentences of two years' detention said by the judge to be “on count 4 consecutive on count 4, concurrent on all other counts....” Four 14 year old boys were detained in a park for a considerable time. The appellant threatened to knife them if they tried to leave. He forced one of them to dance for him and reduced that boy to tears. He also demanded money from all four boys. 8. Count 12 was a charge of theft for which a concurrent twelve-month sentence of detention was imposed again purporting to be pursuant to section 91 . The appellant approached and asked to see the phone of a 14 year old boy. When the boy produced the phone the appellant snatched it from his hand. 9. The total sentence was expressed to be four years' detention. Doubtless that was the judge's intention, although the expression “consecutive on count 4 and concurrent on all other counts” permits of the argument that in fact sentences totalling only three years were passed. We proceed, however, on the basis that this was no more than a slip of the tongue and that sentences on counts 1, 3 and 4 were all intended to run consecutively. 10. The most convenient starting point is to make the necessary correction in relation to counts 2 and 12. So far as section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 applies to those aged at least 14 and under 18, the Act provides that offenders between those ages who are convicted on indictment of any offence punishable in the case of an adult with imprisonment for fourteen years or more, other than an offence the sentence of which is fixed by law (indecent assault, causing death by dangerous driving, or causing death by careless driving while under the influence of drink or drugs). It follows that the power to impose detention under section 91 does not apply to the offence of theft. Accordingly, the sentences of detention on counts 2 and 12 must necessarily be quashed. Rather than substitute sentences of 12 months' conditional discharge on each count, it appears to us to be appropriate that no separate penalty be imposed in relation to either of those matters. Since the sentences were in any event ordered to run concurrently, the overall sentence is in no way affected. 11. The next criticism relates to the judge's failure to state in terms that he was giving the appellant credit for his pleas of guilty. It is beyond argument that those who plead guilty may expect some reduction in sentence, although there is no statutory right to such discount. Section 152 of the Powers of Criminal Courts (Sentencing) Act provides: “(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court shall take into account -- (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty; and (b) the circumstances in which the indication was given. (2) If, as a result of taking into account any matter referred to in subsection (1) above, the court imposes a punishment on the offender which is less severe than the punishment it would otherwise have imposed, it shall state in open court that it has done so.” There was no such statement in the present case. 12. It has been said more than once (see R v Fearon [1996] 2 Cr App R(S) 25, and R v Aroride [1999] 2 Cr App R(S) 406) that it is highly desirable that a sentencing judge in every case makes it absolutely plain to a defendant that he has been given credit for his plea of guilty; otherwise there is likely to be a reasonable possibility that the plea of guilty was not taken into consideration. 13. It is clear from a consideration of the judgment of this court in Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr App R(S) 77 ( R v Lobban and Sawyers and R v Stephen Q ) that a plea of guilty, the age of the offender, the number of previous convictions, the degree of violence used, the number of offences committed, and whether a team of offenders was involved, are all relevant in determining where in the eighteen month to five year bracket an offender should be placed, having committed offences of robbery on persons using mobile phones. 14. This appellant was 15 at the time of the offences. He pleaded guilty. He has one previous conviction for assault occasioning actual bodily harm, five previous convictions for theft, but no earlier convictions for robbery. None of his victims appears to have suffered physical injury. These offences were not committed as part of a gang. Further, this was his first custodial sentence. Without a plea of guilty the sentences passed indicate a starting point of five years or more which, in our judgment, is excessive. Giving due credit for the pleas of guilty, avoiding as they did a number of young witnesses giving evidence, and further, the appellant is able to rely on an early childhood wherein he was disadvantaged in a number of respects not of his own making, we take the view that the appropriate sentence, giving due credit for these matters, would have been one of three years' detention. 15. The remainder of the appeal relates to the order under section 1 C of the Crime and Disorder Act 1998 , made by the learned judge immediately after the appellant had been sentenced to the term of four years' detention. The effect of the order was to prevent the appellant from acting in various ways, principally excluding him from two parks in the locality and from Manchester Airport. The duration of the restraint was stated to be for a period of two years after the appellant's release from custody. 16. A problem has arisen by reason of the fact that the order served and signed by the judge was not the same as that indicated by him in court. Be that as it may, the judge clearly intended to suspend the order until the appellant's release from custody, and it was then to apply for the duration of two years. 17. Section 1 C was inserted into the Crime and Disorder Act 1998 by the Police Reform Act 2002 . It came into force on 2 December 2002. It is accepted that the section applies in this case, the appellant having been convicted of a relevant offence. So far as relevant the section reads: “(2) If the court considers -- (a) that the offender has acted, at any time since the commencement date, in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and (b) that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him, it may make an order which prohibits the offender from doing anything described in the order. .... (5) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody. (6) An offender subject to an order under this section may apply to the court which made it for it to be varied or discharged. .... (8) No application may be made under subsection (6) for the discharge of an order before the end of the period of two years beginning with the day on which the order takes effect.” It follows that the judge was empowered both to make this order and to suspend it until the appellant's release from custody. 18. The scope and proper exercise of the power given by section 1 C has been considered only once by the appellate courts, namely in C v Sunderland Youth Court (DC) [2003] EWHC 2385 (Admin) , a case in which the justices appeared to have acted on evidence which had not been given in open court. The terms of the order were not explained to the defendant by the magistrates in open court. It was unclear why such a geographical limit encompassing the entire local government area of Sunderland was appropriate; and finally the order was drawn up on a wholly inappropriate standard form which related to section 1 orders. 19. In quashing the order the following general principles appear from the judgment of Sullivan J: “25. While section 1 C does not prescribed any particular procedure for making an order, whether the proceedings are civil or criminal it is common ground that, in making an order, the Magistrates' Court must act fairly and have regard to all relevant considerations. What fairness requires and what considerations are relevant will depend upon the circumstances of each particular case. In addition to the requirement to act fairly, there is the elementary requirement that there should be clarity as to the basis for, and scope of, any order made by the magistrates under section 1 C, particularly if breach of such an order exposes a person to potential criminal penalties.... It is vital that the terms of the order are clearly and accurately explained to the defendant by the magistrates in open court.” Brooke LJ, concurring with Sullivan J, stated: “43. What is essential, however, is that whatever procedure is adopted must be a fair procedure culminating in the making of an order which correctly reflects the order the justices actually made.” We unhesitatingly adopt those general principles in relation to the Crown Court. 20. We turn to consider whether, having passed a substantial sentence of detention, it was (to use the words of section 1 C(2)(b)) “necessary to protect persons in any place in England and Wales from further anti-social acts by the appellant”. Dr Thomas, who appears on the appellant's behalf, submits that an order restraining an offender from behaving in a particular way should not be made unless there is a demonstrable necessity to make the order and to include in it the specific prohibitions made in the order. He goes on to raise a number of procedural objections to the course taken in this case, but the principal question for our consideration is whether in the particular circumstances of this case, assuming proper procedure, the judge was justified in making such an order, having regard in particular to the fact that aged 16 this appellant would remain in custody until he was 18. Thereafter, he would remain on licence for a further year if he was convicted of any imprisonable offence committed within two years of his release from custody or 18 months on the reduced sentence which we are minded to substitute. 21. It is submitted that these sanctions are sufficient to provide a deterrent to criminal behaviour in the period after his release from custody and accordingly it is not necessary to add a further sanction in the form of an order under section 1 C to cover the period during which he will be liable to the revocation of his licence or returned to custody under section 1 16 of the Powers of Criminal Courts (Sentencing) Act. 22. Further it is said that in the case of an offender aged 15 at the time of the offences the sentencing court should in principle assume that the term of custody will have a beneficial effect on his behaviour on release. It is contended that the present order under section 1 C carries with it the implication that the appellant is a hopeless case who will not succeed in amending his behaviour. In his sentencing remarks the judge stated: “.... I am satisfied so that I am sure that his conduct is likely to cause harassment, alarm or distress in one or more persons not of the same household as himself, and of course he has admitted that by way of his pleas to these counts, and it is furthermore clear he was described to me that his conduct was similar to a one person crime wave, but certainly the extent of his criminality over that period of time was quite appalling, and I am in no doubt that an order is quite appropriate ....” Nowhere in his sentencing remarks does the judge address the submission of Miss Crossley, who appeared in the court below for the appellant, to the effect that at 18 the appellant is going to be a very different individual to the 15 year old who committed the offences in Woodhouse Park or to the 16 year old being sentenced. 23. Having read both the pre-sentence report of Mr Anwar dated 19 August 2003, and the psychiatric report of Dr Lengua, it is clear to us that the appellant is by no means a lost cause and was certainly not regarded by the Youth Offending Team as such. From 20 November 2002 until 20 February 2003 he had been on bail with bail support. This worked well. He co-operated and had a good relationship with the bail support worker. Between 1999 and 2001 there was a gap in his offending of over two years. As the report indicates, within a fortnight of sentence offending behaviour programmes, education and training programmes would be planned. The appellant's background history is set out at length in Dr Lengua's report. The appellant last saw his mother when he was five. He was brought up by a father with acute psychiatric problems, requiring frequent admissions to hospital. He has spent much time in children's homes and with foster parents. Dr Lengua has recommended psychological intervention for chronic depression, and there is no indication that he considers such a course to be hopeless. Of course we recognise that there is much work to be done, with no guarantee or even high expectation of success. On the most pessimistic prognosis, however, it seems to us that the court's powers under section 116 to return the appellant to custody will provide such deterrent as is appropriate in all the circumstances of this particular case. 24. We have regard to the arguments advanced by Miss Dagnall on behalf of the Crown Prosecution Service. Orders imposing a geographical restraint upon an offender may well supplement licence conditions. In the present case she submits that keeping the appellant out of parks and/or away from Manchester Airport during his licence period would effectively supplement the licence conditions. Further she submits that there is public confidence in this particular piece of legislation which appears to be working particularly well in the Manchester area. 25. Those are valid arguments. However, each case depends upon its particular facts. We are driven to the conclusion that, even having regard to the reduced sentence of three years' detention, it is simply not possible for a court to determine that an order is necessary to protect members of the public at some future date, having regard to the real possibility that the custodial element of the sentence imposed will prove to be effective. 26. Had we concluded that an anti-social behaviour order was appropriate in the present case, we would in any event have had grave misgivings as to the procedures adopted in the Crown Court. Firstly, when applying for the order counsel then appearing for the prosecution (not Miss Dagnall) addressed the judge for quite some time in the absence of the defendant (see page 2B to page 4D of the sentencing remarks). During that period of time counsel said this to the judge in the absence of the appellant: “.... the remand into custody of this defendant would indicate that the massive fall in crime in this particular area and the remanding into custody of the defendant, are not matters of coincidence. .... They are dealt with in the final paragraph, when one can see in the statement of Police Constable Berry that in March 2002 there were 437 incidents of youths causing annoyance. Following his remand that I have referred to, that has now reduced to 331.” 27. Whilst it is correct that the appellant was arrested in March 2003, it is positively misleading to suggest that the reduction in the number of incidents was attributable to the appellant's arrest. What PC Berry said in his statement was: “In my opinion anti-social behaviour orders are an effective way of dealing with persistent offenders. Just as a comparison, in March 2002 when the Wythenshawe area had four anti-social behaviour orders in place there were 437 incidents of youths causing annoyance. In March 2003, when Wythenshawe had 20 anti-social behaviour orders in place there were 371 incidents of youths causing annoyance.” The reduction in incidents was not said by PC Berry to be attributable to the appellant's arrest, as contended by the then prosecuting counsel, but rather to the greatly increased number of orders. 28. Further, in the absence of the appellant the following exchange took place: “PROSECUTING COUNSEL: He likes going to the airport and making a thorough nuisance of himself.” That observation, unsubstantiated by any clear evidence before the court and in due course challenged by Miss Crossley, appears to have resulted in one of the restrictions in the order. Such an observation should plainly not have taken place in the absence of the appellant and in the absence of plain evidence to substantiate it. 29. The totality of the proceedings should have been in the presence of the appellant. Further, it is submitted that paragraphs 1 and 3 of the order are too vague and general and cannot readily be understood by a person of the appellant's age and educational attainment. Paragraph 1 reads: “It is ordered that the defendant it prohibited from either by himself or by instructing, encouraging or inciting any other person to act in any anti-social manner.” Paragraph 3 prohibits him “either by himself or by instructing, encouraging or inciting any other person to engage in any conduct that tends to prevent the public from passing freely along the highway or enjoying free access to any place to which the public has access.” We agree that plain, simple, ordinary language should be used by courts when making orders in circumstances such as this. We invite the attention of courts to the Home Office guide entitled “A Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Courses”. It is an 80-plus page document which contains helpful instruction as to the drafting of such orders. 30. Next, it is submitted that the prohibitions imposed by paragraphs 2 and 7 are redundant as they prohibit conduct which is already subject to a general prohibition by the Public Order Act 1986 and the Prevention of Crime Act 1953 respectively. In that regard we are by no means persuaded that the inclusion of such matters is to be actively discouraged. So far as more minor offences are concerned, we take the view that there is no harm in reminding offenders that certain matters do constitute criminal conduct, although we would only encourage the inclusion of comparatively minor criminal offences in the terms of such orders. 31. It is further submitted that the order served on the appellant is defective in that it fails to set out or identify the anti-social behaviour in relation to which the order was made, notwithstanding the fact that paragraph 2 of the order commences in these terms: “The court found that the defendant had acted in the following anti-social manner which caused or was likely to cause harassment, alarm or distress, etc.” The paragraph has simply not been filled in. It should have been. Full particulars should be included in such an order. 32. Further, it is submitted that the procedure adopted in the Crown Court was defective in that the appellant was not given any opportunity to dispute the allegations contained in the witness statement of PC Berry. We have already mentioned that reference was mentioned to PC Berry's statement in the absence of the appellant. Whilst Miss Crossley stated in terms that the defendant would take issue with some of the elements that are contained therein, she quite properly chose to focus upon whether or not the public required protection for at least two years into the future. It is plainly the duty of a court making such an order to identify matters relied upon by the party seeking the order, to give the defendant an opportunity to dispute the allegation, and to record the findings of fact in the order. 33. Complaint is also made that the order as signed by the judge and as served upon the appellant differed from that pronounced in open court. The order served was without limit as to time whereas the order made in open court was for a duration of two years post-release. Further, in the order served some conditions were expressed to be suspended until the appellant's release from custody; others were not. In open court no such distinction was made. It need hardly be said that the court order must accurately represent what is said by the judge in open court: see the observations of Brooke LJ in the Sunderland Youth Court case. Further, it is said that no attempt was made by the judge to explain to the appellant the requirement of the order. Again, this submission is unanswerable; no such attempt was made. 34. In our judgment the following principles clearly emerge: (1) The test for making an order is one of necessity to protect the public from further anti-social acts by the offender. (2) The terms of the order must be precise and capable of being understood by offender. (3) The findings of fact giving rise to the making of the order must be recorded. (4) The order must be explained to the offender. (5) The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced. 35. It will be readily observed from a consideration of the Home Office Guide to Anti-Social Behaviour Orders that the conduct primarily envisaged as triggering these orders was for a less grave offence than street robbery, namely graffiti, abusive and intimidating language, excessive noise, fowling the street with litter, drunken behaviour and drug dealing. Doubtless in drafting that report the Home Office had in mind that courts have considerable powers to restrain robbers. We do not go so far as to suggest that anti-social behaviour orders are necessarily inappropriate in cases with characteristics such as the present. But where custodial sentences in excess of a few months are passed, and offenders are liable to be released on licence, circumstances in which there is demonstrable necessity to make anti-social behaviour orders are likely to be limited. We endorse the suggestion properly made by Miss Dagnall that there will be cases in which geographical restrains may properly supplement licence conditions. 36. Finally, it should be noted that whilst the making of such an order is strictly not part of the sentencing process, the appropriate venue for an appeal against the making of such an order when made in the Crown Court is plainly to the Court of Appeal Criminal Division. So much is plain from a reading of section 9(1) of the Criminal Appeal Act 1968 together with section 50(1) of the same Act. 37. Accordingly, the sentence of four years' detention is quashed and in its place is substituted a sentence of three years' detention. That can be conveniently achieved by ordering that the sentences on counts 1 and 3 run concurrently rather than consecutively. The anti-social behaviour order is quashed. 38. DR THOMAS: There is the question of the recovery of defence costs order. 39. THE LORD CHIEF JUSTICE: It is automatic. 40. DR THOMAS: I think the court should formally make no order. 41. THE LORD CHIEF JUSTICE: No, no.

```yaml citation: '[2004] EWCA Crim 287' date: '2004-02-03' judges: - MR JUSTICE RICHARDS - MR JUSTICE HENRIQUES ```

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 [2022] EWCA Crim 1868 No. 202201719 A4 Royal Courts of Justice Friday, 16 September 2022 Before: LORD JUSTICE SINGH MR JUSTICE FRASER MR JUSTICE HENSHAW REX V LEE ALEXANDER __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MS G TURUDUJA-AUSTIN appeared on behalf of the Appellant. THE CROWN did not appear and were not represented. _________ JUDGMENT MR JUSTICE FRASER: 1 This is an appeal against sentence, following the grant of permission by the single Judge. The appellant has been represented before us by Miss Turuduja-Austin, to whom we are grateful for her helpful and succinct submissions. She also appeared for the appellant at the proceedings below. 2 On 6 May 2022 the appellant was sentenced in the Crown Court at Oxford by the Honorary Recorder of Oxford, His Honour Judge Pringle QC, on one count of fraud, contrary to section 1 of the Fraud Act 2006, to which the appellant had pleaded guilty on 5 April 2022, so approximately one month earlier. There was a basis of plea, to which we will come in due course. 3 The second count on the indictment, namely one of blackmail, was not proceeded with by the prosecution. On the single count to which the appellant had pleaded guilty the judge sentenced him to a period of imprisonment of two years and nine months. The judge also imposed a restraining order upon him, not to contact either the victim of the fraud or his cousin, who had also received messages from him during the course of the offending. 4 The facts of the offending are as follows. The victim of the fraud was a young woman of 18 years old at the time, called Emily. In February 2020 she received a communication from someone who was calling themselves Joe Avery. The appellant had created a number of fake accounts on the social media applications Snapchat and Instagram. He knew the victim because they had both attended the same school, but he had never spoken to her. Joe Avery was one of the false profiles that he had created. The appellant and Emily communicated over the following days via social media, and a few days later he asked her if she was interested in modelling, and he sent her a link to something called Vision Models New. This account was designed to look like Vision Models, which is a genuine modelling agency based in London, but it had no connection with the genuine modelling agency and was a wholly false link. 5 Emily added this link to her Snapchat account, and the appellant, by now posing as the agency, asked her to send a photograph of her face and another of her in a bikini. Given that she was interested in a modelling career and also believing that she was dealing with a genuine agency, she sent those pictures of herself. In fact, she was sending them to the appellant, although she did not know this. Having received these pictures, the appellant, again pretending to be acting for Vision Models New, told her she was indeed suitable to model lingerie. The following day the agency asked her to send a photograph of her in her underwear, which she did. The Snapchat account for Vision Models New then asked her for a topless photograph. She became suspicious of this and messaged Joe Avery on Instagram to check the bona fides of the agency, and asked him if it was "Legit". He was the person who had sent her the link in the first place and it was understandable that she would ask him about this. He reassured her that it was a genuine request from a genuine agency, and so she sent Vision Models New a topless picture. She had by this stage sent what she believed to be the agency a number of photographs of herself, including those of her in a bikini, in underwear and now a photograph of herself topless. 6 She then received a message via Snapchat from another profile called Molly Proctor 567.  This, again, was the appellant using another false profile, with the difference being that this time he was pretending to be a female photographer employed by the modelling agency. This message asked Emily to send further topless photographs of herself to that account, which she did. 7 At the beginning of March the agency contacted her again. This time she enquired when she would receive payment for the photographs she had sent already. A negotiation followed about how much she would be paid and a number of photographs, additional to those she had already sent she would have to submit. The agency told her she had to provide a photograph of herself fully naked in order to receive payment, and she agreed to do this. The agency agreed to pay her £90 on the proviso that this time the photographs would include her face. Previous photographs had not. She sent the fully naked photographs which included her face, as requested, and also provided her bank details, but she did not receive any payment. 8 What then occurred was as follows. The appellant contacted Emily, not disclosing that he was the person behind this behaviour in obtaining the photographs, and said that he had hacked into the computer system of the agency and obtained her photographs as a result of  that exercise. He said he had both topless and nude photographs of her and would both post them online and distribute them around the town where she lived for everyone to see unless she sent more nude photographs to him, and he said she should also be prepared to do "what I tell you". There were some explicit sexual references in some of these messages. Luckily, rather than give in to these threats as some victims of such threatening behaviour sometimes do, she wisely contacted the police, and the appellant was arrested and the officer seized two mobile telephones. 9 In interview, the appellant fully denied being involved in this behaviour and claimed to police merely that he had received a topless photograph of her from an online friend who he called Harry Corbin. He also claimed that Joe Avery, which was the name of the original fake profile, was another online friend who lived in Manchester. A few weeks later, at the end of March 2020, the victim's cousin received the following message from the Joe Avery Instagram account: "Your sister was a joke, getting people arrested for something they didn't do. My mate messaged her saying, 'I'll help you out with something', then got him arrested for making bullshit up. Ha ha ha... Did you know about it? ...airing me now. Calm I'll just block you then I don't chat to Lee anymore but it's a joke. He's got a girlfriend and Emily accusing him of blackmailing her, what a joke." 10 The same day another friend of the victim received a message from Joe Avery warning him to be careful around her because she had “people arrested for no reason”. 11 The appellant was then interviewed for a second time by police. He provided a prepared statement in which he stood by the claims made in his initial interview, and then answered "no comment" to all questions. It was necessary, therefore, for the investigation to interrogate his electronic devices, and this was done and a detailed forensic investigation followed. The two mobile telephones taken from his address were analysed. The results clearly demonstrated that the two phones used in the behaviour we have recounted were the two phones seized from the appellant, and also that the Instagram and Snapchat of Joe Avery, Molly Proctor 567 and Vision Models New had all accessed the internet via an IP registered to the appellant's home address. This led to the appellant eventually accepting responsibility for what he had done and pleading guilty some time later. He entered a basis of plea which accepted the count of fraud on a full facts basis and also stated that that plea, "included the facts of the blackmail". This means that he accepted sending the messages demanding other nude photographs from the victim and threatening to distribute the ones that he had fraudulently obtained. 12 The court had before it for sentencing both a Pre-sentence Report and a psychiatric report. The Pre-sentence Report noted that the offences were sexually motivated and that "The Digital Media Investigator Report suggests the index offence was not an isolated incident." 13 In paragraphs 115 and 116 it is stated that: "Mr Alexander creates numerous real and fake personas online via Snapchat and Instagram and uses them to coerce, harm and blackmail females into sending him naked and sexual images of themselves. He pretends to be females and males and adopts images and accounts from other Snapchat and Instagram users and pretends to be these persons. He has pretended to be a fashion modelling agency as well as a photographer working for these companies, all with the intention of obtaining naked images of females." 14 The Psychiatric Report found that he suffered from social phobia and potentially also atypical autism, also known as Autistic Spectrum Disorder. This was mild. He was 22 and had no previous convictions. 15 The parties were agreed that culpability was high. Given the sophistication, amount of planning, the continuation of the deception, and indeed, the initial explanation given to the police in two interviews, such a conclusion is, in our judgment, inescapable. 16 In his sentencing remarks the judge said he had taken account of the guidelines for fraud but he could not factor in any monetary factor. He did, however, have regard to the high impact the offending had on the victim and the serious detrimental effect on the victim in terms of harm. It was agreed that the appropriate discount for the guilty plea was 10 per cent. The sentencing judge took a figure of three years and applied the 10 per cent discount to arrive at the sentence of two years and nine months’ imprisonment. 17 The grounds of appeal, which have been very well put before us today, are that this should have been a Category 5 harm case and that the guidelines for a Category 5A offence should have been used. There are three grounds, which are as follows: (1) The judge took too high a starting point. (2)  He failed to take account of relevant mitigating factors, including the mental health difficulties the appellant has. (3) The overall sentence is manifestly excessive. 18 We deal first with the guidelines. When dealing with harm, there are five categories, all identified or specified by money value of the fraud in question. However, the guidelines expressly state that harm is initially assessed by the actual, intended or risk loss. There is then a second aspect to this exercise which is to consider harm B, namely victim impact. This permits movement upwards within the category or, indeed, within the next category above. Here, this is an unusual fraud offence because there is no express financial impact. The victim here was not someone who suffered a financial loss, and what in fact she provided cannot be equated to any money value. The impact on her was something far greater, and in a sense, something that money cannot buy or put right, namely the supply to another of intimate photographs, including fully naked photographs that she would not have sent to this person at all, absent of the fraud. It was a fraud by representation, with those fraudulent representations being repeated numerous times and in more than one guise as a course of conduct. The victim did not suffer financial harm per se, but she suffered great harm. 19 The fact that there is no financial impact does not mean that one automatically starts the categorisation exercise in Category 5 based on value or perceived value of loss or gain, and then go on to consider whether or not to move up a category at stage B of the harm analysis. Because of the high impact, it was common ground that this could be categorised as a Category 4 case which has a starting point of 18 months and with the top of that range being three years. We have carefully considered the correct approach. We consider the harm suffered here can equate the offence to one falling into Category 3 or Category 4. Using table 1, which we consider to be the most suitable table, that would give under Category 3 a starting point of 3 years with a range of 18 months to 4 years, and as we have observed, the top of Category 4 is a 3-year figure. 20 We have also considered the authority of R v Falder [2018] EWCA Crim 2514 and is a judgment of this court presided over by Holroyde LJ, now Vice President of the Court of Appeal Criminal Division. That is a very different case and considers a large range of far more serious offences, but within those committed by the defendant in that case are similar frauds. We quote from paragraph 14: “The applicant targeted victims whom he knew to be both young and vulnerable – for example, by picking out girls who posted on a website devoted to those suffering from anorexia. He began by offering his chosen victim money in exchange for naked photographs of herself. In order to make the offer more acceptable he used a variety of deceptions. He posed, for example, as a female artist who had suffered from depression who found therapy making life sketches from photographs. Once his selected victim had been induced to provide initial images, the applicant asked for more. He continued to offer (but never actually to make) payment.” 21 Mr Turuduja-Austin has drawn our attention to the distinguishing features of that case compared to this one, namely that the offences took place over a longer period, there were far more victims and that the defendant (appellant in this case) is ten years younger. She does, however, very sensibly accept that there are similarities and the offences in that case that were charged as section 1 fraud offences attracted sentences after plea of three years' imprisonment. In the instant case before us there are significant aggravating factors. The deception went on for a period of time, included threats and intimidation, and as put in the basis of plea, that accepted the facts of the blackmail but also involved lying to the police during two separate interviews. 22 The appellant is young and does have some limited personal mitigation, but in our judgment, these would, putting it at its best for the appellant, balance out or reduce the aggravating factors. It must also be remembered that guidelines are exactly that, guidelines, and are not rigid tramlines into which sentencing for an offence must be forced. They are to guide the sentencing judge, who is expected realistically to take account all the relevant factors of any particular offence. No set of guidelines can accurately predict all aspects of any specific offence that may be committed, and they do not provide rigid boxes into which all offences must be forced regardless of their facts. The test for this court is whether the sentence passed is manifestly excessive or wrong in principle. 23 In our judgment, neither of these is demonstrated in the appellant's favour. The judge arrived at a sentence within the range that was properly open to him on the unusual facts of this offence. 24 It is not manifestly excessive, and therefore, we dismiss the appeal. __________

```yaml citation: '[2022] EWCA Crim 1868' date: '2022-09-16' judges: - LORD JUSTICE SINGH - MR JUSTICE FRASER - MR JUSTICE HENSHAW ```

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Case No’s: 2002/05798/X5 2002/05928/Y5 2002/06552/W4 2003/00080/R2 Neutral Citation Number: [2003]996 EWCA Crim 996 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT (1) HHJ DAVID WYNN MORGAN AT CARDIFF (2) HHJ BALSTON AT MAIDSTONE (3) HHJ DAVID CLARKE QC AT LIVERPOOL (4) HHJ SESSIONS AT CHICHESTER Royal Courts of Justice Strand, London, WC2A 2LL Thursday 3 April 2003 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES MR JUSTICE GAGE and MR JUSTICE MOSES - - - - - - - - - - - - - - - - - - - - - Between : (1) Robert Charles Cooksley (2) Ian Paul Stride (3) Neil Terence John Cook Appellants - and - Regina Respondent Attorney General’s Reference No. 152 of 2002 (4)Richard James Crump - - - - - - - - - - - - - - - - - - - - - (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 Hilary Roberts (instructed by Hodson Parsons James and Vaux) for the 1 st Appellant Mr Stephen Morley (instructed by Pattinson and Brewer) for the 2 nd Appellant Mr Gerald Baxter (instructed by Cobleys Solicitors) for the 3 rd Appellant Mr Geoffrey Mercer QC (instructed by Bennett Griffin Solicitors) for the 4 th Appellant Mr Nicholas Hilliard (instructed by the Treasury Solicitors) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown Copyright © The Lord Chief Justice: 1. This judgment relates to three appeals against sentence and one Attorney General’s Reference. The appeals and the reference have been listed together to enable us to decide whether we should issue fresh guidelines as to sentencing for the offence of causing death by dangerous driving and careless driving when under the influence of drink or drugs in view of the advice of the Sentencing Advisory Panel of February 2003 (the “Advice”) which recommended that there should be new guidelines. In his foreword, the Chairman of the Panel, Professor Martin Wasik, pointed out that: “This offence causes particular difficulty for sentencers. By definition, it is one which always gives rise to extremely serious harm: the death of at least one victim (and in some cases serious injury to others). Understandably this often leads to calls from victims’ families, and from the wider community, for tough sentencing. On the other hand, an offender sentenced for causing death by dangerous driving did not intend to cause death or serious injury, even in the extreme case where he or she deliberately drove for a prolonged period with no regard for the safety of others. The Panel believes that new guidelines will help sentencers to strike an appropriate balance between the level of culpability of the offender and the magnitude of the harm resulting from the offence. The Panel drew up its initial proposals on the basis that the outcome of an offence, including the number of people killed, was relevant to the sentence, but that the primary consideration must always be the culpability of the offender. That was supported by the majority of respondents to our consultation paper, and it remains our view. Two of the detailed points in the Panel’s Advice deserve particular mention. One is the significance of multiple deaths. Although the number of people killed is often a matter of chance, there are (as some of our consultees pointed out to us) cases where the offender has knowingly put more than one person at risk, or where the occurrence of multiple deaths was reasonably foreseeable. In such cases, we recommend that the occurrence of more than one death should be treated as a more seriously aggravating factor. The second point is the inclusion of ‘driving when knowingly deprived of adequate sleep or rest’ in the list of factors that would aggravate the seriousness of an offence. Under previous sentencing guidelines, ‘briefly dozing at the wheel’ was seen as an example of a ‘momentary dangerous error of judgment’, indicating a less serious offence. The Panel’s view (again supported by consultees) is that falling asleep is more likely to aggravate than mitigate the seriousness of an offence, because drivers do not normally fall asleep without warning, and the proper course of action for a motorist who feels drowsy is to stop driving and rest.” 2. Mr Nicholas Hilliard appears on behalf of the Attorney General on the reference. In addition, he has assisted the court by making submissions on the Advice of the Sentencing Advisory Panel. He has referred to paragraphs 1.1 to 1.3 of the Department of Transport’s paper “Tomorrow’s roads: safer for everyone. The Government’s road safety strategy and casualty reduction target for 2010”. Those paragraphs provide: “1.1 Road accidents cause immense human suffering. Every year, around 3,500 people are killed on Britain’s roads and 40,000 are seriously injured. In total, there are over 300,000 road casualties, in nearly 240,000 accidents, and about fifteen times that number of non-injury incidents. This represents a serious economic burden; the direct cost of road accidents involving deaths or injuries is thought to be in the region of £3 billion a year. 1.2 Nevertheless, Britain has had -relatively speaking -remarkable success in reducing road casualties. And this is despite the vast growth in traffic since the beginning of the last century. In 1930 there were only 2.3 million motor vehicles in Great Britain, but over 7,000 people were killed in road accidents. Today, there are over 27 million vehicles on our roads but far fewer road deaths. 1.3 In 1987 a target was set to reduce road casualties by one-third by 2000 compared with the average for 1981-85. We have more than achieved this target for reducing deaths and serious injuries. Road deaths have fallen by 39% and serious injuries by 45% and we are now one of the safest countries in Europe and indeed the world. However, there has not been any such steep decline in the number of accidents, nor in the number of slight injuries, although improvements in vehicle design have helped to reduce the severity of injuries to car occupants.” 3. He drew our attention to paragraph 12 of the Advice, which indicates that driving offences causing death are among those most frequently referred by the Attorney General to this Court because he considers that the sentence at trial was unduly lenient. The Attorney General is in favour of fresh guidelines being issued. We have come to the conclusion that the following guidelines should be issued. They are based upon the Advice, the terms of which in general we accept. The new guidelines shall come into force forthwith and should be applied by courts when passing sentence from the date of this judgment. 4. The Advice refers to the possibility of the maximum sentence being increased for causing death by dangerous driving by Parliament. This guidance is given on the basis of the existing maximum penalty which is 10 years imprisonment. In addition, disqualification for a minimum period of 2 years and endorsement of the offenders licence are obligatory and the offence carries 3 – 11 penalty points. The offender must also be required to pass an extended driving test before his licence can be restored. 5. The offence of causing “the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place” was created by section 1 of the Road Traffic Act 1988 (the “RTA 1988”), as substituted by section 1 of the Road Traffic Act 1991 (“the RTA 1991”). The maximum penalty for this offence was originally 5 years imprisonment but this was increased to the present maximum of 10 years by the Criminal Justice Act 1993. 6. The significant distinction between the former offence of causing death by reckless driving and reckless driving is that the new offences do not require evidence of the offenders state of mind as the test is now objective. When a person is to be regarded as driving dangerously for the purposes of both offences is now contained in section 2A of the RTA 1988 (inserted into that Act by the RTA 1991). That section provides that a person is to be regarded as driving dangerously if: “a) The way he drives falls far below what would be expected of a competent and careful driver, and b) It would be obvious to a competent and careful driver that driving in that way would be dangerous.” A person is also to be regarded as driving dangerously if, “it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.” 7. Section 2A(3) further provides that in determining what would be expected of and obvious to a competent and careful driver regard must be had not only to the circumstances of which he could be expected to be aware, but also to any circumstances shown to have been within the knowledge of the accused . This last provision does introduce a subjective element into the offence of driving a vehicle in a dangerous state but this does not materially alter the objective nature of the offence as a whole. 8. Dangerous driving has to be distinguished from a careless and inconsiderate driving ( section 3 RTA 1988) and causing death by careless driving when under the influence of drink or drugs ( section 3A RTA 1988). The former offence is a summary offence for which the offender is not subject to imprisonment and has a maximum penalty of a level 4 fine (currently £2,500). Disqualification is discretionary and the offence carries 3 – 9 penalty points. The latter offence is indictable only and subject to the same maximum penalty of 10 years imprisonment. 9. There is still the offence of motor manslaughter in relation to which a sentence of life imprisonment can be imposed. It is also an offence to which section 2 of the Crime (Sentences) Act 1997 applies so that in the absence of exceptional circumstances relating either to the offender or to his offences a mandatory sentence of imprisonment for life must be imposed if the offender has a previous conviction for a “serious offence”. 10. Where death is not a consequence of the dangerous driving, then the maximum penalty is 2 years imprisonment. As that offence can still result in catastrophic injuries being caused by an accident we agree with the Advice that “under the present structure there is an unduly large gap between the maximum of 2 years for dangerous driving and 10 years for an offence in which the same standard of driving “has by chance resulted in death”. Like the Panel, we therefore welcome the proposed 5 year maximum for the basic offence of dangerous driving. We do not see the same need to increase the maximum of 10 years imprisonment for death by dangerous driving, particularly as the offence of motor manslaughter still remains. That offence being reserved for situations where on the facts there was a very high risk of the driving resulting in death. (See R v Pimm [1994] RTR 391 .) 11. Before referring to the Guidelines, we would make the following points about sentencing for death by dangerous driving: i) Although the offence is one which does not require an intention to drive dangerously or an intention to injure, because before an offender can be convicted of dangerous driving, his driving has to fall “far below” the standard of driving that would be expected of a competent and careful driver and the driving must be such that it would be obvious to the same competent and careful driver that driving in that way would be dangerous, it will usually be obvious to the offender that the driving was dangerous and he therefore deserves to be punished accordingly. ii) In view of the much heavier sentence which can be imposed where death results as compared with those cases where death does not result, it is clear that Parliament regarded the consequences of the dangerous driving as being a relevant sentencing consideration so that if death does result this in itself can justify a heavier sentence than could be imposed for a case where death does not result. iii) Where death does result, often the effects of the offence will cause grave distress to the family of the diseased. The impact on the family is a matter that the courts can and should take into account. However, as was pointed out by Lord Taylor CJ in Attorney General’s References Nos. 14 and 24 of 1993 ( Peter James Shepherd, Robert Stuart Wernet ) [1994] 15 CAR (S) 640 at P644: “We wish to stress that human life cannot be restored, nor can its loss be measured by the length of a prison sentence. We recognise that no term of months or years imposed on the offender can reconcile the family of a diseased victim to their loss, nor will it cure their anguish.” iv) A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standards of driving. Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what the mitigating circumstances, normally only a custodial sentence will be imposed. This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence. 12. Prior to the increase in the maximum period imprisonment to 10 years and when the offence was still causing death by reckless driving this court gave a guideline judgment in R v Boswell [1984] 6 CAR 257. The legislative changes since that time have meant the guidance in that case is out of date. However, in the case of Warnet and Shepherd to which reference has already been made the court indicated that the list of aggravating and mitigating circumstances, set out in Boswell were still relevant, but that where a driver had driven with selfish disregard for the safety of other road users or of his passengers of with a degree of recklessness, instead of the appropriate sentence being 2 years or more, sentences of upwards of 5 years would be appropriate. As is pointed out by the Advice, the import of that decision is that bad cases should be dealt with at least twice as severely as before but without necessarily affecting sentencing in cases which previously attracted shorter custodial terms or making custodial sentences more likely in those cases where custody would not previously have been considered necessary. In practice, however, it is clear that there has been an upward trend across the range of cases, and, in particular that non-custodial sentences are rarely used. Assessing the seriousness of an offence 13. In the Advice the Panel expresses their view in these terms: “13. The key problem for a sentencer dealing with this offence is the tension between the outcome of the offence (which is inevitably the death of at least one victim) and the degree of the offender’s culpability. The Panel’s provisional view, that the offender’s culpability should be the dominant component in the sentencing exercise but that the outcome of the offence should have some effect, was strongly endorsed by the majority of respondents to the consultation paper. The Panel understands the view of the minority, that causing death is invariably a very serious crime, but reaffirms its initial view that culpability must be the dominant factor when the offence involves no intention to kill or injure.” 14. As we have made clear, in accord with the view of the minority referred to in the Advice, we accept that causing death is invariably a very serious crime. Nonetheless, we do not dissent from the Panel’s view that culpability must be the dominant factor when assessing as precisely as possible just where in the level of serious crimes the particular offence comes. 15. The Panel sets out a series of aggravating and mitigating factors. These are more extensive than those that were set out in Boswell . We adopt them but they stress that should not be regarded as an exhaustive statement of the factors. In addition it is important to appreciate that the significance of the factors can differ. There can be cases with three or more aggravating factors, which are not as serious as a case providing a bad example of one factor. They are as follows: Aggravating Factors “ Highly culpable standard of driving at time of offence (a) the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’ (b) greatly excessive speed; racing; competitive driving against another vehicle; ‘showing off’ (c) disregard of warnings from fellow passengers 5 (d) a prolonged, persistent and deliberate course of very bad driving (e) aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking) (f) driving while the driver’s attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held) (g) driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills 6 (h) driving when knowingly deprived of adequate sleep or rest (i) driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns Driving habitually below acceptable standard (j) other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle (k) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving Outcome of offence (l) more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable) (m) serious injury to one or more victims, in addition to the death(s) Irresponsible behaviour at time of offence (n) behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape (o) causing death in the course of dangerous driving in an attempt to avoid detection or apprehension (p) offence committed while the offender was on bail 8 .” Mitigating Factors “(a) a good driving record; (b) the absence of previous convictions; (c) a timely plea of guilty; (d) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend); (e) the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence), and (f) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.” 16. Having referred to the aggravating factors, the Panel deals with specific situations which have been considered in recent authorities. One such situation is what the Panel describes as “avoidable distractions”. The example given, supported by the case of Browning [2002] 1 CAR (S), 377 is the use of mobile phones when driving. In Browning the defendant was a lorry driver who veered of the road and killed a man in a lay-by while sending a text message. This court upheld the custodial sentence of 5 years. In giving the judgment of the court Mance LJ made a statement which we would endorse. He said, “The use of a mobile phone to read and compose text messages while driving is a highly perilous activity. Even the use of a hand-held mobile phone by a driver whilst moving, a much too common feature of driving today, is self-evidently risky. But the risks of reading and composing, text messages appears to us of a wholly different order and to be to use the judges words, of the most “blatant nature”. We would respectfully endorse those words. In that case Browning had pleaded guilty but there had to be a Newton hearing. Browning’s evidence was not accepted so he was not entitled to full credit for his plea. The sentence of 5 years for an offender of good character and who was remorseful was upheld. Browning provides a useful example of what we would regard as being the current appropriate level of sentencing. 17. Explaining their inclusion as an aggravating factor at (h), driving when knowingly deprived of sleep or rest, the Panel was right to draw attention to the observations of this Court in Attorney General’s Reference No. 26 of 1999 [2001] CAR (S) 394. There it was said that falling asleep at the wheel usually involves a period during which a driver is conscious of drowsiness and difficulty in keeping his or her eyes open and the fact that the proper course for a driver in such a position to adopt is to stop driving and rest. Multiple Deaths 18. The Panel then discusses the authorities in respect of multiple deaths and in particular the case of Pattipher [1989] 11 CAR (S) 321 and France [2002] EWCA Crim 14019 . We agree with the conclusion of the Panel that the number of deaths resulting from dangerous driving is relevant to the length of sentence. There are cases in which the defendant if, for example, he is a coach driver who drives after being deprived of sleep or under the influence of alcohol where he must be taken to appreciate that the consequence could be that there will be more than one death if he is involved in an accident. Certainly in that situation, multiple deaths will be a more seriously aggravating feature. 19. Even where there is no reason to suggest that the defendant is knowingly putting more than one person at risk, the fact that the consequences of dangerous driving are particularly serious, for example, involving multiple deaths is a relevant factor as to the length of sentence. That is the view that will be taken by the public. However, we are certainly not suggesting that the sentence should be multiplied according to the number of persons who sadly lose their life. It is still necessary to regard the offender’s culpability in relation to the driving as the dominant component in the sentencing exercise. While the sentence is increased to reflect more than one death the sentence must remain proportionate to the nature of an offence which does not involve any intent to injure. The offender’s own injuries 20. The Advice relies on the case of R v Maloney [1996] 1 CAR (S) 221 for suggesting that a sentence can be reduced because of the extent of the offender’s own injuries if the injuries are serious. We agree this is a relevant consideration. The injuries can make the sentence of imprisonment a greater punishment than usual. His injuries are also in themselves a punishment and should bring home to the offender, in the most direct possible way, what can be the consequences of dangerous driving. We however, also agree with the Panel that the fact that the offender has been injured should not automatically be treated as a mitigating factor and that only “very serious, or life changing, injury should have a significant effect on the sentence. Some indication of the scale of the effect is provided by the facts of Maloney . The offender had a very severe head injury, severe facial injuries, he lost the sight of his right eye and his right little finger, and there was continuing loss of use of his right arm and leg. On appeal this court reduced the sentence from 5 to 4 years but in doing so were taking into account, not only the injuries, but the fact that the trial judge had erroneously sentenced the appellant on the basis he had consumed an excessive amount of alcohol. Length of Sentence No Aggravating Circumstances 21. As in the case of sentencing for any offence a sentence of imprisonment should only be imposed if necessary and then for no longer than necessary. In these cases an immediate custodial sentence will generally be necessary. The starting point for causing death by dangerous driving should be a short custodial sentence of perhaps 12 to 18 months. That is the approach that should be adopted even when there is a plea of guilty, though the plea of guilty will justify the appropriate reduction in the length of sentence. This is in relation to an adult offender. We regard as an example of this approach the case of Brown [2002] 1 CAR (S) 504. In Brown the defendant momentarily fell asleep while driving his van in daylight, drifted across the road and collided head on with a car travelling in the opposite direction, killing a passenger in it. The mitigating factors were guilty plea, previous good character with an impeccable driving record and the fact that the offender displayed genuine shock and remorse. In addition, the effect on the appellant’s life and family was devastating. This court reduced the sentence to 9 months imprisonment. 22. Brown makes it clear that in order to avoid a custodial sentence there has to be exceptional mitigating features. As exceptional features, the Panel refer to the case of Jenkins [2001] CAR (S) 265. In that case the defendant was 16 years old with learning difficulties who lost control of a motorcycle because of its dangerous condition and his pillion passenger, who was his best friend, was killed. He pleaded guilty because it would have been obvious to a competent and careful driver that the condition of his vehicle was dangerous. He was sentenced to detention and a training order for 12 months but the Court of Appeal, while agreeing that the custodial sentence was warranted, “as a justifiable statement of society’s abhorrence of dangerous driving and the use of dangerous vehicles on a public road”, took into account that the defendant was not competent to maintain the bike and the fact that his mental condition prevented him from fully appreciating its dangerous condition. In the circumstances there having been delay in the case coming to trial, a 2 year supervision order was substituted. There obviously can be other exceptional situations and we consider it preferable not to try and anticipate what those situations will be. It is sufficient to emphasise that they have to be exceptional. Intermediate Culpability 23. As against that case, the Panel states and we would agree, that “30. An offence involving a momentary dangerous error of judgment or a short period of bad driving may be aggravated by a habitually unacceptable standard of driving on the part of the offender (factors (j) or (k) by the death of more than one victim or serious injury to other victims (factors (l) and (m) or by the offender’s irresponsible behaviour at the time of the offence (factors (n) to (p). The presence of one or more of these features could indicate a sentence within the higher range, up to three years.” Accordingly, our starting point is 2 to 3 years. We do, however, qualify the Panels advice to this extent that we foresee circumstances, particularly where there is more than one of the factors present referred to above where 5 years could be appropriate if, for example, there is more than one victim. Unfortunately, because of the range of the variety of facts it is not possible to provide more precise guidelines. 24. The Panel refer to the case of Braid [2002] 2 CAR (S) 509. In Braid the offender during daylight and in good conditions overtook a lorry while approaching a blind bend and collided head on with an approaching car. A passenger in the car was killed and in addition the driver of the other vehicle suffered injuries which would permanently affect his mobility. This is therefore a case where factor (m) applied and culpability was aggravated by serious injury to another victim in addition to the death of the deceased. The offender pleaded guilty. He was 20 years of age and of good character. The sentencing judge noted he had driven very badly over a short distance. This Court endorsed the view of the sentencing judge that personal circumstances did not weigh heavily in the balance in these cases. The public were entitled to require the courts to reflect the loss of life and to demonstrate that dangerous driving was a serious social evil, which if death results would lead to a substantial custodial sentence. The appellant should have appreciated that he was approaching a blind corner and that he could not see far enough to ensure that he could pass the articulated lorry safely. In reducing the sentence to 18 months detention in a young offenders institution, the court was, as it said, reflecting the many mitigating features. However, it also said that the case did not display any of the aggravating features. This would not be true in relation to the present guidelines and if the guidelines had been in force, we would not have expected the court to interfere with the period of 2 years detention imposed by the trial judge. Higher Culpability 25. In relation to offences of higher culpability the Panel states: “32. When the standard of the offenders’ driving is more highly dangerous (as would be indicated, for example, by the presence of one or two of factors (a) to (i) the Panel suggests that the appropriate starting point would be a custodial sentence within the range from two to five years. The exact level of sentence would be determined by the dangerousness of the driving and by the presence or absence of other aggravating or mitigating factors.” 26. As a starting point we consider a bracket of 2 - 5 years is too wide. We suggest that sentencers should take as a starting point 4 – 5 years in relation to a contested case of this type. There will be cases which will involve higher sentences than 5 years because they are bad examples and cases, particularly where there is a plea, where the sentence will be less than 4 years where there are significant mitigating factors. 27. The approach that we have just indicated is consistent with the approach of this court on Attorney General’s Reference No. 58 of 2000 (Wynne) [2001] 2 CAR (S) 102; a sustained course of dangerous driving at excessive speeds, 50 mph in a 30 mph area was involved in that case. The offender had also consumed alcohol, although it was unclear whether this contributed to the offence. While driving on the wrong side of the road the offender collided head on with a motorcyclist who was killed. In addition a 7 year-old pillion passenger suffered leg injuries. The offender was an unqualified driver and he had left the scene of the crash immediately although he gave himself up to the police on the following day. On a guilty plea, this Court increased the sentence to 3 ½ years. That sentence included an allowance for double jeopardy but for that allowance the sentence would not have been less than 4 years. Most Serious Culpability 28. Here, what this Panel state is as follows: “34. The Panel suggests that custodial sentences over five years should be reserved for cases involving an extremely high level of culpability on the offender’s part. This might be indicated by the presence of three or more of aggravating factors (a) to (i), although an exceptionally bad example of a single aggravating feature could be sufficient to place an offence in this category. A sentence close to the maximum would be appropriate in a case displaying a large number of these features, or where there were other aggravating factors.” 29. The Panel do not give a starting point. We feel it would be helpful if we suggest again in a contested case a starting point of 6 years otherwise we endorse what the Panel states. 30. The Panel gave as an example the case of Corkhill [2002] CAR (S) 60 where an offender was sentenced to 7 years detention. The Court of Appeal agreed this was a bad case but described it as “not among the very worse” and reduced the sentence to 5 years. Bearing in mind that Corkhill was 19 years old and pleaded guilty, we see it as consistent with our starting point . 31. As an example of the most serious case justifying a total custodial sentence of the maximum of 10 years we refer, as did the Panel, to Noble [2002] EWCA Crim 1713 . The Court of Appeal made it clear in that case, that the maximum sentence was justified not simply by the number of deaths but by the range of other aggravating factors, including driving at an excessive speed while about 2½ times over the alcohol limit and then seeking to avoid responsibility by claiming one of the victims had been driving. Starting Points A. Death by dangerous driving 32. We have set out four starting points ; no aggravating circumstances - 12 to 18 months; intermediate culpability – 2 to 3 years; higher culpability - 4 or 5 years and most serious culpability - 6 years or over. We make clear that starting points only indicate where a person sentencing should start from when seeking to determine what should be the appropriate sentence. There is, however, a danger in relation to the higher starting points of the sentencer, if he is not careful, double accounting. The sentencer must be careful not to use the same aggravating factors to place the sentence in a higher category and then add to it because of the very same aggravating features. 33. In making our recommendations as to starting points , we have made the allowance we consider appropriate for the fact that those who commit offences of dangerous driving which result in death are less likely, having served their sentence, to commit the same offence again. Apart from their involvement in the offence which resulted in death, they can be individuals who would not otherwise dream of committing a crime. They, unlike those who commit crimes of violence, also do not intend to harm their victims. B. Careless Driving Under the Influence of Drink 34. We have not, so far, mentioned the level of sentencing in cases of causing death by careless driving when under the influence of drink. The Panel have not advised that such cases should form a separate category. We agree. The driving may not not exhibit the aggravating factors set out in (a) to (i) of paragraph 14 of the Panel’s Advice. In some cases, the only aggravating factor will be the amount of alcohol consumed. In other cases, there may be the aggravating factor of disregarding a warning from a fellow passenger or knowingly driving a poorly maintained vehicle. There may be previous motoring convictions. There will also be cases where the driving is itself of significance in determining the appropriate sentence. As was made clear in R -v-Locke (1995) 16 Cr. App. R (S) 795, it is not necessary to have an additional count of death by dangerous driving before the full culpability of the offender’s driving is taken into account in determining the right sentence. It will be perfectly possible for sentencing judges to fit cases of causing death by careless driving when under the influence of drink into one of the four guideline categories which we propose. The Views of the Victims Families 35. Here, the Panel refer to the practice statement of the 16 October 2001 (Practice Direction (Victim Personal Statements) [2002] 1 CAR 69). The Panel also refers to the case of Roach [1999] 2 CAR (S) 105 where the court accepted that they could as an act of mercy reduce a sentence if relatives of a victim indicated that the punishment imposed on the offender was aggravating their distress. The Panel also refers to the fact that in that case Lord Bingham CJ said, “the court is not swayed by demands for vengeance and has to be very cautious in paying attention to pleas for mercy”. 36. The last case which we should refer because it was helpfully drawn to our attention by Mr Hilliard, on behalf of the Attorney General, is Attorney General’s Reference No. 56 of 2002 (Nnamdi Megwa) [2002] EWCA Crim 2292 . In that case the offender who was aged 37 pleaded guilty to two counts of causing death by careless driving when over the prescribed limit. He was sentenced to 2 years imprisonment on each count concurrently as well as being disqualified for 3 years. 37. In that case a family had been driving in another vehicle at about 2.30am in the morning on the M1 motorway. Although how the accident occurred was not precisely established, it seems that the likely cause was the fact that the offender had fallen asleep and this caused his vehicle to collide with another vehicle travelling in the same direction and that vehicle then spun off the motorway killing the front seat passenger and the rear offside passenger and the rear nearside passenger. They were all members of the same family. The offender had been drinking and his blood alcohol concentration would have been, at the time of the accident, somewhere in the region of 105 milligrams of alcohol in 100 millilitres of blood. The number of persons injured and the fact that the offender had been drinking were relied upon by the Attorney General as aggravating features but there were mitigating features, namely the offender had pleaded guilty and shown genuine remorse, he was a man of good character, 37 years of age in responsible employment. The fact that the case was a result of a momentary inattention and not a prolonged course of bad driving was also relied upon. 38. In giving the judgment of the court Kay LJ pointed out that, “sentences that would have been deemed appropriate 10 years ago would not begin to be considered to be right now. Sentences have been very substantially increased”. Kay LJ added: “This was a case where there was no prolonged course of bad driving over and above that which is inevitably present in a case of this kind, but that any driving with excess alcohol is serious bad driving. If you drive with excess alcohol late at night, one of the possibilities is that it will increase the chances that you will fall asleep at the wheel. Those who fall asleep at the wheel, whether from excess alcohol or otherwise represent an enormous danger to other road users. Accordingly it is incumbent upon all to ensure they do not place themselves in a position where this is likely to happen.” 39. He also referred to the fact that “falling asleep is not generally something that happens in a moment. It is normally the end product of a process of feeling tired and people do have the opportunity to stop and avoid an accident when they start to feel that they are falling asleep”. The court did not therefore regard the case as one of momentary inattention. However, it was not the worst driving. In addition the blood alcohol level was not a particularly high. However, the court went on to say, where more than one death is caused and where permanent serious injuries added to the factor of the number of deaths, those are matters that must be given some weight in the sentencing process. The fact that there were the deaths and one very serious injury was not in any way the result the driver intended and therefore the degree to which there is an increase in sentence for such factors is not generally thought to be a very marked. Nonetheless the authorities clearly establish that it is an important factor that has to be borne in mind. The court therefore took the view that a sentence in the brackets of 4 – 5 years should be imposed in a case of that sort. We respectfully agree. Disqualification 40. As we have already indicated disqualification is mandatory for a minimum period of 2 years. The main purpose of disqualification is as the Panel advised, “forward looking and preventative rather than backward looking and punitive”. It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads. We do, however, accept that for the offender being disqualified is a real punishment. The Panel suggests the risk represented by the offender is reflected in the level of culpability which attaches to his driving so that matters relevant to fixing the length of the driving disqualification for the offence of causing death by dangerous driving will be much the same as those factors we have listed already. We agree with this suggestion. 41. We accept the advice of the Panel as to the length of bans. We do so notwithstanding the fact that the Panel adopts three bans of seriousness whereas in respect of imprisonment we have adopted four categories. We consider the Advice in relation to disqualification is sufficiently precise. 42. The Advice was in the following terms: “While those convicted of causing death by dangerous driving are likely to regard disqualification as an onerous part of the punishment for the offence, the main purpose of disqualification is forward-looking and preventative, rather than backward-looking and punitive. A driving ban is designed to protect road users in the future from an offender who, through his conduct on this occasion, and perhaps other occasions, has shown himself to be a real risk on the roads. In general, the Panel suggests, the risk represented by the offender is reflected in the level of culpability which attaches to his driving, so that matters relevant to fixing the length of the driving disqualification for the offence of causing death by dangerous driving will be much the same as those appearing in the list of aggravating factors for the offence itself. Shorter bans of two years or so will be appropriate where the offender had a good driving record before the offence and where the offence resulted from a momentary error of judgment. Longer bans, between 3 and 5 years, will be appropriate where, having regard to the circumstances of the offence and the offender’s record, it is clear that the offender tends to disregard the rules of the road, or to drive carelessly or inappropriately. Bans between 5 and 10 years may be used where the offence itself, and the offender’s record, show that he represents a real and continuing danger to other road users. Disqualification for life is a highly exceptional course, but may be appropriate in a case where the danger represented by the offender is an extreme and indefinite one. Noble (see paragraphs 36-37 above) was described by the Court of Appeal as ‘one of those rare cases’ where disqualification for life was necessary in order to protect the public.” 43. We do not agree that the length of the ban should be tailored to take into account the anticipated date of early release of the offender. On the other hand we accept that to extend the ban for a substantial period after release can be counter-productive particularly if it is imposed on an offender who is obsessed with cars or who requires a driving licence to earn his or her living because it may tempt the offender to drive while disqualified. 44. The balancing of these conflicting considerations is very much the responsibility of the sentencer. In doing so the balancing exercise will require the sentencer to take into account the requirement which now exists that an order must be made that the offender is required to pass an extended driving test. 45. We can now turn to the individual cases. Robert Charles Cooksley The Facts 46. At Newport Crown Court on 20 August 2002 this appellant changed his plea from not guilty to guilty on a count of causing death by careless driving when under the influence of drink. On 10 September 2002 he was sentenced to a term of 4 years imprisonment, disqualified from driving for 6 years and ordered to take an extended re-test following a disqualification period. He appeals by leave of the single judge. The facts are as follows. At about 8.25pm on 1 September 2001 the appellant was driving along the A48 towards Newport when he ran into a cyclist travelling in the same direction. Immediately before the accident the driver of a car which was following the appellant’s car noticed the appellant’s car braking in a quick but controlled manner. The car behind the appellant’s car pulled out to overtake and as it did so the front-seat passenger noticed that the appellant’s car had hit the cyclist. That car pulled up and the driver and his passenger returned to the scene of the accident. The appellant was trying to resuscitate the cyclist and his female passenger was hysterical. An ambulance and the police were called. The injured cyclist was removed from the scene in the ambulance but later died. Police officers at the scene smelt alcohol on the breath of the appellant and his passenger. The appellant’s passenger told police officers that she and the appellant had started drinking at 11.00am and they were on their way from one public house to another when the accident occurred. She said that she had told the appellant that he should not be driving but had gone along with him to avoid a row. Both she and the appellant tested positive on a roadside breath test but later at the police station the appellant refused to provide either a specimen of breath or blood for analysis. Following a plea and directions hearing, at which the appellant pleaded not guilty, the prosecution served the evidence of an expert who had made a back calculation from the roadside breath test relating to the amount of alcohol which it was alleged the appellant had consumed before the accident. In his opinion the appellant must have consumed at least 9 pints of beer before the accident although the appellant admitted to consuming only 4 pints. The defence instructed its own expert and it suffices to note that the accuracy of the prosecution expert’s evidence ultimately was not challenged and the appellant pleaded guilty. He is now aged 46 and has a number of previous convictions which include in 1994 a conviction for driving with excess alcohol and in 2001 for failing to stop after an accident. 47. On behalf of the appellant, it is submitted that apart from the consumption of alcohol there was an absence of serious culpability. Counsel submits that there is no evidence of the appellant’s car meandering or wandering across the road. There is no evidence of excessive speed and the appellant remained at the scene of the accident. Further, it is submitted that the judge failed to give sufficient credit for the appellant’s guilty plea and remorse shown by him. Our Conclusions 48. In our judgment the submissions on the lack of culpability fail to address the gravity of the case against the appellant, namely that he had consumed such a quantity of alcohol as to cause him to fail to see the cyclist in time or at all. In addition, there is the aggravating feature that he had driven notwithstanding a warning from his passenger that he should not do so. In our judgment this was a bad case of causing death by careless driving when under the influence of drink. The defendant had spent a good part of the day drinking. He was warned not to drive by his passenger. Clearly, he cannot have seen the cyclist in time to avoid the accident. For these reasons his judgment must have been seriously affected by alcohol. In our opinion this case falls into the third category of seriousness or higher culpability, and notwithstanding the appellant’s guilty plea, for which only limited credit was due, and the fact that this was a case of careless driving, the sentence was not manifestly excessive. The Result 49. This appeal must be dismissed. Ian Paul Stride (2002 05928 Y5) The Facts 50. This appellant appeals against a sentence of 2½ years imprisonment imposed at Maidstone Crown Court on 13 September 2002 following a trial at which he was convicted of causing death by dangerous driving. He was disqualified from driving for 5 years and until an extended re-test is taken. 51. The appellant has been a professional lorry driver for over 20 years. On 16 December 2000 he had started work at 3pm. He drove to a garage in Kent to make a delivery and left that garage at 5.36pm. After driving a distance of only 19 miles, taking him some 22 minutes, an accident occurred on the M20 motorway. Two vehicles were stationary on the hard shoulder. One of them had broken down and a Peugeot 405 had parked behind the other car in order to assist. There were approximately seven people standing on the verge of the hard shoulder at the time, some were getting into the rear of the Peugeot. As the appellant’s tanker approached, it slowly veered off the main carriageway onto the hard shoulder and into collision with the rear of the Peugeot. Tragically Richard Foord, in the back of the Peugeot at the time, was killed. The appellant told the police and maintained at trial that he had a sneezing fit causing him to leave the road. 52. It is apparent that the trial judge directed the jury that if the explanation for the accident might have been that the appellant had sneezed, he should be acquitted. But if the jury was sure that, as the prosecution contended, the defendant had fallen asleep he should be convicted. 53. The jury convicted and accordingly the judge sentenced him on the basis that the appellant had fallen asleep. It is conceded on behalf of the appellant that the judge was entitled to take that view. 54. The appellant is 43 and of good character. He volunteered that he had been convicted of a traffic offence approximately 20 years ago and more recently of a minor speeding offence. A number of witnesses gave evidence and wrote of his honesty, integrity and hard work. The Pre-Sentence Report spoke of the fact that he had been traumatised by the accident. In his sentencing remarks the judge accepted that there were no aggravating features. Our Conclusions 55. This, as we have said, was a case where a driver fell asleep at the wheel. Usually, as we have indicated at paragraph 17 of this judgment, this will be an aggravating feature. Sleep is normally preceded by a period of drowsiness and difficulty in keeping the eyes open. But this was an unusual case. The appellant had not been driving for any lengthy period. Nor had he been working throughout the day. There was no reason why he should anticipate becoming tired, let alone falling asleep. In those circumstances we take the view that the judge was correct in declining to identify any aggravating feature and in particular we do not think this is a case where the driver was knowingly deprived of adequate sleep or rest. 56. On the other hand, there was powerful personal mitigation. In those circumstances we do not think this case falls within our intermediate category of 2 to 3 years. It was a rare case of a driver momentarily and unexpectedly falling asleep at the wheel. In those circumstances we take the view that it falls within the lowest category and a sentence of 18 months imprisonment was appropriate. 57. Additionally, we take the view that disqualification for driving for a period of 5 years was too long. Disqualification is primarily intended to provide a safeguard to the public for the future. In the light of this professional driver’s good driving record we take the view that protection of the public does not require disqualification for 5 years and for that period we substitute a period of 3 years disqualification. The Result 58. Accordingly in this case the appeal is allowed by substituting for the period of 2½ years of imprisonment a period of 18 months imprisonment and for the disqualification of 5 years a period of 3 years and until an extended re-test is taken. Neil Terence John Cook (2002 06552 W4) The Facts 59. This appellant was sentenced by the Recorder of Liverpool on 27 September 2002 to a total of 7 years detention in a Young Offenders Institution for two offences of causing death by dangerous driving. He had pleaded guilty earlier. The appellant is aged 20. The facts demonstrate that these offences were of the most serious kind. 60. On 17 May 2002 at about 4am the appellant was driving a Volvo motorcar. It was not his own and he was unable to identify the owner. There were five passengers in the car. He was driving the car on a dual carriageway in Liverpool in respect of which there was a 30mph speed limit. The area was known as dangerous and there were signs along it reading “Speed Kills” and “Slow Down Please”. His speed was estimated at between 68 and 73mph at the time of the accident. As he approached a sharp left hand bend he lost control. The car hit the left hand kerb, rose into the air, struck a tree and crashed through the gardens of three houses demolishing a wall and a bay window. A passenger sitting in the rear and another passenger sitting in the front passenger seat were killed immediately. One other passenger suffered a large cut on her head, a fractured forearm and a chipped vertebrae at the top of her neck. Another passenger sustained serious head injuries requiring intensive support on a respirator and a fifth passenger suffered a fractured hip. 61. The appellant had a bad driving record which included three previous offences of driving whilst disqualified. He was driving whilst disqualified at the time of these offences. 62. As the Recorder of Liverpool noted in his sentencing remarks the only mitigation was that he had pleaded guilty when the case first came into the Crown Court and had expressed sorrow and remorse. There was graphic evidence of the impact his driving had had upon the relatives of the deceased. 63. It was argued on this appellant’s behalf that whilst there were significant aggravating features, deriving from the manner of his driving and the fact that he was disqualified, insufficient allowance had been made for the age of this appellant and his plea of guilty. Our attention was drawn to the decision of this court in the R v Corkhill [2002] 2 CAR (S) 18 in which a sentence of 7 years detention was reduced to 5 years having regard to the early plea of guilty and the appellant’s youth. Our Conclusions 64. In our judgment this case was worse. Two young people were killed and others suffered severe injuries as a result of this appellant’s deliberate decision to drive at dangerous speed in order to impress his fellow passengers. 65. Having regard to the appellant’s sustained driving at speed and the fact that he was disqualified, we place this case within the most severe culpability category. The appellant drove persistently at an excessive speed in order to show off to his fellow passengers, aggravating features as identified by the Sentencing Advisory Panel at paragraph 14(b). However, this appellant is entitled to some credit for his plea even though it was not entered at the earliest time. The conclusion we have reached is that a sentence of 7 years for a person of the appellant’s age is an excessively high sentence and a sentence of 6 years detention will appropriately meet the requirements of punishment and deterrence for this serious offence. The Result 66. Accordingly, we allow the appeal and quash the sentence of 7 years and instead impose a sentence of 6 years detention. Richard Crump 67. On 26 September 2002 at the Chichester Crown Court, the defendant, Richard James Crump was convicted of causing death by dangerous driving. On 29 November 2002 he was sentenced to 12 months’ imprisonment suspended for 2 years. He was disqualified from driving for 4 years, ordered to take an extended driving test and ordered to pay £200 towards the costs of the prosecution. Her Majesty’s Attorney-General applies under section 36 of the Criminal Justice Act 1988 for leave to refer the sentence to this Court for review because he considers it was unduly lenient. We grant leave. The Facts 68. The facts were as follows. At about 12.30pm on 18 January 2001 the defendant was driving his Peugeot motorcar south along South Farm Road, Worthing approaching a railway crossing. He had two passengers in his car. At the same time Hannah O’Leary, aged 86, was walking in South Farm Road in the vicinity of the railway crossing. As the defendant approached the crossing the signalman activated the warning bells and crossing lights sequence. The sequence was that yellow lights come on for 3 seconds and the audible warning started. After 3 seconds red lights start to flash. After another 7.5 seconds the facing barriers start to descend. A pedestrian saw the Peugeot drive over the railway line as the barriers descended. His evidence was that the defendant had to cross into the opposite carriageway on the north side of the line and “shimmy” his way diagonally across the crossing to get through. The pedestrian described the vehicle as travelling too fast. At the same time a taxi driven by Liberato Dichello approached the crossing from the south side as the lights flashed and the gates started to come down. He saw Mrs O’Leary step into the road off the east pavement. He stopped his vehicle short of where she was crossing so that she could cross in front of his taxi. His evidence was that she had reached about halfway across the lane when the Peugeot vehicle came over the crossing at an angle and struck her. By then the crossing gates were halfway down and the car was at an angle in order to avoid the gate. Mr Dichello thought that the car was travelling at more than 30mph. The defendant stopped the Peugeot a short distance from the point of impact. At the scene he spoke to a police officer saying “I had to make a snap decision. I was confronted by a red light and she stepped out from the side of the road in front of me.” A little later when he was sitting alone in the back of a police car the defendant received a telephone call on his mobile from one of his passengers. The defendant’s side of the conversation was recorded by a video system inside the police car. He said: “Yeh, well, this is your fault. You know that don’t’ you? Do you know that? No? [pause]. Go on, give it loads. Go on, you can do it. Go on. Yeh, anyway.” 69. Later when interviewed he said that he thought he was probably travelling at about 40mph. He had not noticed the flashing lights and the warning bells and had been unaware of the crossing until one of his passengers had said “Quick, go, there’s a crossing”. He said that “It was like a split [second] decision thing … I wasn’t expecting there to be a train crossing there and I’ve kind of obviously gone through it whilst its coming down at some point, not realised it, someone said “there’s a barrier coming down” and then this woman just stepped out in front of me.” Re-interviewed on 22 March 2001 Crump estimated his speed at 30 to 35 mph. 70. As a result of the impact Mrs O’Leary sustained multiple injuries and on 14 February 2001 she died in hospital as a result of heart failure brought on by the injuries. 71. The defendant is now aged 30. He had three previous conviction for speeding the last of which was in 1997. The Reports 72. Before the judge there was a pre-sentence report and two medical reports. All these reports comment on the sincerity of expressions of remorse by the defendant. The medical reports show that the defendant suffers from a severe and disabling eczema. This condition requires treatment by a daily bath containing an emollient and the application of steroid ointment and moisturising creams. From time to time the defendant has to be admitted to hospital for in-patient treatment. A psychiatrist reported that the defendant showed signs of Post Traumatic Stress Disorder which he suspected had caused the defendant to develop a dependence on prescribed sleeping tablets and anti-anxiety drugs. 73. The judge sentenced the defendant on the basis that he had approached the crossing travelling at a speed in the mid 30s. He said that it was implicit from his direction and the jury’s verdict that the defendant having seen the warning lights decided to go on and take the various risks involved in not stopping. For this reason he had to drive an “S” course along the road in order to pass under the barrier on his side of the road. The judge concluded that only a custodial sentence was justified but that the interplay between the defendant’s psychological make-up and his medical difficulties were such as to constitute exceptional circumstances enabling him to suspend the sentence. The Submissions 74. The Attorney-General contends that the following aggravating features were present. (1) The defendant failed to heed the warning bells and lights which would have been evident for some time. (2) The defendant ran the risk of his vehicle blocking the railway line if he had not managed to drive under the crossing gates. (3) The defendant had three previous convictions for speeding. 75. The Attorney-General accepts that the following mitigating factors were present. (1) Apart from road traffic offences the defendant had no other previous convictions. (2) The defendant was in poor health. He suffered from severe eczema and had experienced some symptoms of post-traumatic stress disorder after the incident. (3) The defendant was remorseful for what he had done. 76. Mr Hilliard submitted that, on the judge’s findings, this was a case of the defendant taking a deliberate risk by attempting to cross the railway crossing as the barriers were descending. He pointed to the risk of disastrous consequences which might have occurred if the defendant’s vehicle had been trapped on the crossing. He submitted that the sentence of 12 months was unduly low and that the starting point should have been 2½ years in prison. From this starting point some allowance could properly be made for the defendant’s personal mitigation but the mitigation was not such as to amount to exceptional circumstances enabling the court to suspend the sentence. 77. Mr Geoffrey Mercer QC representing the defendant before us, as he did in the lower court, submitted that, ignoring the defendant’s medical condition, the sentence was not unduly lenient. He submitted that there were no aggravating features and that the decision to drive over the crossing as the barriers were descending was a split-second decision amounting to no more than an error of judgment. He further submitted that, in view of the defendant’s medical condition, the judge was justified in suspending the sentence of imprisonment. Our Conclusions 78. The Attorney General should have leave. 79. We are of the opinion that the sentence passed was unduly lenient. In our judgment the aggravating feature in this case is the deliberate risk which the defendant took in deciding to drive across the railway crossing as the barriers were descending. In order to do so it was inevitable that he had to drive onto the wrong side of the road. There was the considerable risk that if he failed to pass under the second barrier he might cause a very serious accident involving a train. In our judgment his driving was such that it came into the second intermediate category to which we have referred; that is the 2 to 3 year bracket. In the circumstances, we accept the Attorney General’s submission that the starting point was 2½ years. Taking into account the defendant’s considerable remorse and the other personal mitigation save for his medical condition in our view the appropriate sentence would have been 2 years. 80. However, in our judgment, the judge was entitled to suspend the sentence. He had seen the defendant give evidence. The defendant’s medical condition was undoubtedly serious and difficult to treat. In the course of his sentencing remarks the judge was handed a letter from the prison authorities in which it was stated that in principle the prison medical services would be able to give the prescribed level of care which the defendant’s condition required. The judge found that in reality the prison service would, at the least, have extreme difficulty in coping with the defendant’s condition. Having carefully read the medical reports, in our view, the judge was quite entitled to reach that conclusion and, as he stated, as an act of humanity to suspend the sentence. In addition, we have been told by counsel that the effect of having this appeal hanging over his head, has caused the defendant’s eczema to deteriorate. We take the view that having regard to the principle of double jeopardy it would in any event now be wrong to direct an immediate sentence of imprisonment. 81. Accordingly the sentence will be varied to a term of 2 years imprisonment suspended for 2 years. The period of disqualification will remain unaltered as will the order that when the period of disqualification has expired before he drives again the defendant must take an extended test.

```yaml citation: '[2003] EWCA Crim 996' date: '2003-04-03' judges: - MR JUSTICE GAGE - MR JUSTICE MOSES ```

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No: 201803104 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION [2019]EWCA 185 (Crim) Royal Courts of Justice Strand London, WC2A 2LL Thursday, 7 February 2019 B e f o r e : LORD JUSTICE FLAUX MR JUSTICE HOLGATE MR JUSTICE MURRAY R E G I N A v AHMED HASHI Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr B Aina QC and Ms M Karaikos appeared on behalf of the Appellant Mr O Glasgow QC appeared on behalf of the Crown J U D G M E N T (Approved) LORD JUSTICE FLAUX: 1. On 24 May 2018, in the Crown Court at Wood Green after a trial before His Honour Judge Dodd QC and a jury, this appellant, who is now aged 18, was acquitted of murder and convicted of manslaughter. On 29 June 2018, he was sentenced by the judge to 9 years' detention in a Young Offender Institution. He now appeals against sentence with the leave of the single judge. 2. The facts can be summarised as follows. At around 10.00 pm on 28 November 2017, at the Bethel Café on Seven Sisters Road in London, Mohamed Hersi was playing pool with other customers of the café. The appellant and various other men were waiting for their turn to play. An argument subsequently broke out between Mohamed Hersi and another man named Saleban Hussain about whose turn it was to play. Mohamed Hersi subsequently became angry and told Saleban Hussain to play pool with the kids, referring to the appellant and another young man with him called Mahamoud Adbi Ali Farah. 3. Following the argument, Mohamed Hersi left the café but subsequently returned as he had forgotten his scarf. When he returned to the café the argument continued. Witnesses heard someone say "come outside" and saw Mohamed Hersi appearing to beckon to Saleban Hussain, the appellant and Mr Farah. The judge said in his sentencing remarks that it did not appear to be in any sense a violent or offensive gesture. Mohamed Hersi and Saleban Hussain attempted to go outside the café to fight but had been prevented from doing so. 4. At about 10.10 pm, Mohamed Hersi left the café but returned once again. On this occasion the appellant and Mahamoud Adbi Ali Farah went towards Mohamed Hersi. The appellant had picked up a chair from inside the café. Holding the chair with its legs pointing towards Mohamed Hersi, the appellant threw or pushed the chair at Mohamed Hersi twice in quick succession. One of the metal chair legs went into Mohamed Hersi left eyeball, penetrating, apparently, by some 3 inches. Mohamed Hersi fell to the floor with the top half of his body outside the café and the bottom part of his body inside the café. The appellant then used his foot to stamp on Mohamed Hersi's genital area and on his throat before running from the café followed by Mahamoud Adbi Ali Farah. 5. Mohamed Hersi was pulled back into the café, various calls were made to the police and the ambulance service. Paramedics attended and he was conveyed to the Royal London Hospital but sadly he subsequently died from his injuries at about 2.18 pm on 29 November. On 1 December 2017, the appellant handed himself in to Wood Green police station and was arrested and cautioned. In reply to the caution, the appellant stated: "I was in a café in Finsbury Park on 28 November 2017 when I had an argument with the male. I hit him in the eye with a chair. Today I heard he died. I've come to hand myself in." 6. In interview, the appellant accepted that he had hit Mohamed Hersi with a chair but stated that he had stamped on Mohamed Hersi's neck area and not his head. The appellant claimed that he had acted in self-defence and did not know that he had hit Mohamed Hersi in the eye and did not intend to cause Mohamed Hersi serious injury. By its verdict, the jury clearly rejected that defence, although in acquitting the appellant of murder they obviously did not consider that he had the intention to kill or to cause grievous bodily harm. 7. The appellant was born 29 April 2000, so he was 17 years and 7 months old at the time of the offence. He had one conviction for an offence committed on 22 December 2016 of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence. The appellant lost his temper during the course of a dispute with a shopkeeper. He picked up a plastic pallet in the shop and threatened the shopkeeper with it. For that offence he was conditionally discharged in the North West London Juvenile Court on 10 January 2018. 8. The judge adjourned sentence for a report inter alia on the issue of dangerousness. The pre-sentence report noted that the appellant asserted that he been acting in self-defence and denied that he had been angered by the comments that the victim had levied towards him. The appellant stated that he had a growing fear that the victim would cause him harm due to his intoxicated state and the fact that the victim kept leaving and returning to the café. The appellant accepted that his actions had caused the death of the victim. 9. He was statistically assessed as posing a low risk of reoffending and a medium risk of violent reoffending. However, it was the professional opinion of the writer of the report that the appellant posed a medium risk of reoffending and that this level of risk was likely to rise in the event that he was faced with a conflict or confrontational situation. Using an assessment tool he was assessed as posing a high risk of serious harm to the general public and a medium risk of serious harm to other prisoners. However, it was the writer's opinion that the appellant did not meet the dangerousness criteria. His conclusion noted that the highlighted risks could be effectively managed by way of a determinate sentence but that this would be a decision for the court. 10. In sentencing the appellant, the judge said that Mohamed Hersi had been 40 when the appellant had killed him and had been much loved by his family, his wife and their four young children, as well as by his circle of friends. The victim's death would inevitably cast a long and deep shadow on their lives and their loss had been profound. No sentence that the court could pass could ever equate to the value of the life that had been lost. Like the judge, we have read the moving and eloquent victim impact statement of Mr Hersi's wife. 11. The judge said that much of the incident had been captured on CCTV from inside the café. We should say that we have viewed the CCTV footage, which appears to bear out the judge's findings. Immediately before the incident, the judge said, Mr Hersi was at the door apparently beckoning. It was not apparent to the judge why he did that but it did not appear to be in any sense a violent or offensive gesture. The appellant and his friend had got up from their seats near the pool table and walked the short distance to the door. Why they had done that was not clear to the judge. As he did so, the appellant picked up one of the chairs and used it to attack Mr Hersi, a man who had displayed no aggression towards him and was a total stranger. He had held the chair as he attacked Mr Hersi then stamped on his throat and groin, further acts of violence which the judge considered were indicative of his feelings towards Mr Hersi. 12. The judge said that no witness could shed any clear light on why the appellant had suddenly attacked a man much older than himself, who posed no threat to him and had displayed no hostility towards him. The judge referred to the argument between Mr Hersi and Saleban Hussain, both of whom seemed to have been drinking, and how in irritation with Saleban Hussain, Mr Hersi may have told him to go and play with the kids, ie the appellant and his friend. Mr Hersi may have said "come outside" or simply "come" to someone inside the café but, as the judge said, these were all matters of complete and utter trivia. 13. The judge felt in that some way the appellant felt slighted by Mohamed Hersi and wanted to teach him a lesson and so he had attacked Mohamed Hersi with a chair. The chair had four metal legs, one of those had the rubber foot missing and it was that that pierced Mohamed Hersi's left eye and caused catastrophic damage which had resulted in his death. The judge noted that it was the view of the pathologist that severe force would have been required to cause the damage that he found at the post mortem. The injuries caused by the stamping to the throat indicated the use of moderate force. 14. The judge said that having behaved on the night of the offence in a disgraceful and violent manner, the appellant subsequently had the decency, encouraged by his own family, to give himself up to the police once he had found out that the man he had attacked had died. The appellant had admitted much of what had been alleged but maintained that he had acted in self-defence. In the judge's view, there had been no foundation or basis for that whatsoever. 15. The judge had read the prosecution note on sentence and had been referred to the recent case of R v Hobbs and DM [2018] EWCA Crim 1003 and the judgment of the Lord Chief Justice. The judge had read the guidelines of the Sentencing Council setting out the overarching principles applicable to the sentencing of those under 18. The appellant, whilst he was now 18 years old, had been 17 years old at the time that the offence had been committed. 16. In relation to the mitigation, the judge had read the pre-sentence report and the letter from the appellant in which the appellant had expressed remorse and had set out his hopes for the future. The judge said that he not seen any indication of remorse during the trial but he now accepted that the appellant had expressed a measure of sorrow and regret for his actions and now understood in some way the enormity of the pain that he had caused. 17. The judge said that the pre-sentence report described the appellant's progress whilst on remand in rather mixed terms. He had continued to show he was bright and able, engaging with educational opportunities but he had become involved in some incidents showing a lack of respect to staff and some violence towards other inmates. The writer of the report suggested that that was as a result of immaturity rather than a sign of anything more significant. 18. The judge said that he accepted that there had been little by way of premeditation but this remained an extremely serious offence and had been a dreadful and shocking incident far removed from any childish prank. The appellant had chosen to arm himself with a chair in order to attack a wholly innocent man who had done him absolutely no wrong. The violence was sudden, wholly without excuse and it was brutal. The judge had to assess harm and culpability in order to determine the sentence. Harm was there by virtue of the loss of life. It was of the utmost seriousness. So far as culpability was concerned, the judge accepted that the appellant did not intend to kill Mohamed Hersi but he had plainly intended to cause him some harm, albeit falling short of really serious harm, otherwise why had he picked up the chair and used it with some significant force as a weapon to attack his victim. Culpability was therefore high. 19. The judge noted the appellant's previous conviction, which indicated a disturbing attitude towards others when he was challenged. The judge said that he was conscious of the appellant's age. His level of maturity was below the level of an adult. That was a relevant factor in determining the appropriate sentence because it reduced his culpability to a degree. The judge thought that that was the only mitigating factor that he could identify along with a measure of remorse. 20. The judge had considered the issue of dangerousness and he agreed, not without some hesitation, with the conclusion of the author of the pre-sentence report that dangerousness was not established. He had decided to deal with the appellant by way of a conventional determinate sentence. Had the appellant not been as young as he was and had he been a fully mature individual, the sentence of the court would have been one of 12 years' imprisonment. Because of the appellant's age, the sentence was reduced to one of 9 years' detention in a Young Offender Institution. 21. The principal ground of appeal advanced by Mr Benjamin Aina QC on behalf of the appellant is that the judge did not give adequate weight to the overarching principles as set out in the guideline for children and young people. He referred to the passages of the guideline that are referred to in the judgment of this court in Hobbs and DM , culminating in the passage at paragraph 6.46, upon which he placed particular emphasis: "If considering the adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the appropriate adult sentence for those aged 15–17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. The individual factors relating to the offence and the child or young person are of the greatest importance and may present good reason to impose a sentence outside of this range." 22. Mr Aina QC submitted that the judge was required to consider age, maturity and progress of the young offender even where the offender was 18 when sentenced, so technically an adult. As he put it, full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthday. 23. We agree with this submission, which is an important consideration when sentencing a young offender who is technically an adult at the time of sentence. As the Lord Chief Justice put it in R v Clarke [2018] EWCA Crim 185 at paragraph 5: "Experience of life reflected in scientific research (e.g. The Age of Adolescence: thelancet.com/child-adolescent; 17 January 2018) is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday." 24. Mr Aina submitted in relation to paragraph 6.46 of the guideline and the reference to a reduction of one half to two thirds of the adult sentence, that the appellant having been 17 when he committed this offence was entitled to this reduction. He submitted that in only allowing a discount of 25 per cent, the judge had failed to take account of the immaturity of the appellant and the impact that this had had on his decision making and the lack of insight into the consequences of his offending. His behaviour had been immature. He had picked up a chair and he threw it in a childish way at a perceived aggressor without any thought of the risk that serious injury might occur. He was particularly critical in his oral submissions of the judge for failing to give any explanation as to why he was departing from the guidelines as he was required to do by section 125 of the Coroners Act 2009. 25. In an Addendum to his Advice and in his oral submissions, Mr Aina QC also referred to the sentencing guideline on manslaughter. Whilst recognising that that was not applicable when this appellant was sentenced, since it only applies to those sentenced on or after 1 November 2018, he submitted that the specific reference in that guideline to the need to refer to the guideline on sentencing children and young people when sentencing those under 18 for manslaughter, thereby taking those under 18 outside the sentencing guideline on manslaughter, illustrated the importance of distinguishing sentencing of adults from sentencing of young offenders. The overall approach, principles and objectives are different. 26. Attractively though these submissions were presented, we cannot accept them. As Mr Oliver Glasgow QC pointed out in his Respondent’s Notice, the guideline at 6.46 makes clear that the reference to a reduction of a half to two thirds from the adult sentence for 15- to 17-year-old offenders is "only a rough guide and must not be applied mechanistically". The sentencing judge, having conducted the trial, was uniquely well placed to assess the extent to which the appellant's age and immaturity should be reflected by a reduction from the adult sentence. 27. Mr Aina's QC characterisation of the offence as the appellant picking up a chair and throwing it in a childish way at a perceived aggressor without any thought of the risk that serious injury might occur downplays the seriousness of this offending and is contrary to the judge's findings based on the evidence. The judge specifically rejected the defence submission that this was some sort of childish prank that had gone wrong, as in Hobbs and DM . He also rejected any suggestion that Mr Hersi had behaved aggressively towards the appellant or that the appellant was responding to a perceived threat. Likewise, he rejected any suggestion that the appellant acted without any thought for the consequences. He found that the appellant plainly intended to cause Mr Hersi some harm, albeit falling short of really serious harm, otherwise why had he picked up the chair and used it with some significant force as a weapon to attack his victim. 28. Mr Glasgow QC seems to have thought in his Respondent’s Notice that the appellant was seeking to challenge the judge's starting point of 12 years' imprisonment for an adult offender. We did not understand Mr Aina QC to be doing so and he certainly did not suggest anything of the kind in his oral submissions. In any event, whether there were such a challenge or not, we consider that on the basis of the judge's assessment of the evidence, which cannot be faulted, a sentence of 12 years' imprisonment for an adult committing this offence cannot in any sense be described as excessive. If anything, given the high culpability of the appellant, a slightly higher sentence of 13 or even 14 years' imprisonment if he had been an adult would have been justified. 29. The suggestion in Mr Aina's written submissions that the appellant was "entitled" to a discount of one half to two thirds from that adult sentence is misconceived. As the guideline makes clear, the individual factors relating to the offences and the young offender may present a good reason for imposing a sentence outside the range. Here, as we have said, the judge was best placed to make an assessment of those factors. 30. Mr Aina submitted, on the basis of R v Taylor [2012] EWCA Crim 630 , that the judge should have explained why he had departed from the guideline and why a lesser discount had been allowed than under the guideline and that his failure to do so made the sentence that he passed wrong in principle. We do not accept that submission. 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. It is clear that in the present case the judge did consider the guideline very carefully and there is nothing in the submission that he gave it insufficient weight. The judge concluded that the nature of this offending and the high culpability of the appellant despite his youth only justified a reduction of 25 per cent from the adult sentence that he would be passed. 31. In our judgment, this approach cannot be seriously criticised and the sentence passed of 9 years' detention cannot be described as manifestly excessive. This appeal against sentence must be dismissed. 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 185' date: '2019-02-07' judges: - LORD JUSTICE FLAUX - MR JUSTICE HOLGATE - MR JUSTICE MURRAY ```

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

Neutral Citation Number: [2004] EWCA Crim 1368 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27 May 2004 B E F O R E: THE VICE PRESIDENT OF COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE ROSE MR JUSTICE CRESSWELL MR JUSTICE ANDREW SMITH - - - - - - - INTERLOCUTORY APPLICATION UNDER SECTION 9(11) CRIMINAL JUSTICE ACT 1987 R E G I N A -v- B G - - - - - - - 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 MISKIN QC, MR R PARDOE & MISS E LEES appeared on behalf of the APPELLANT B MR A MITCHELL QC, MR P MARTIN & MR S ESPRIT appeared on behalf of the APPELLANT G MR VB TEMPLE QC & MISS L DOBBS QC appeared on behalf of the CROWN MR R RHODES QC & MR D AARONBERG appeared as interveners on behalf of the other three defendants MR O GLASGOW appeared on behalf of the City of London Police - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: This appeal comes before this court as a matter of urgency. The trial judge has, within the last ten days, made rulings which are in part the subject of challenge. On 7th June he is due to embark on a trial which may last up to a year. Speedy resolution of the important issues raised is essential. Other demands on this court's time mean that, unless judgment is given today, it will be several weeks before it can be given. 2. The two appellants G and B are jointly charged with three co-accused to whom we gave leave to intervene in this appeal. All five face an indictment containing counts of common law conspiracy to defraud and conspiracy to contravene various provisions of the Theft Act, by procuring investment in reliance on proof of funding which was worthless. 3. On 21st April 2004, having heard counsel for the prosecution on an ex parte PII hearing in chambers, the trial judge ruled that certain sensitive material should not be disclosed to the defence. That ruling in itself is not the subject of challenge nor could it be at this stage. 4. However, on Friday 14th May, after the jury had been sworn and the prosecution opening had begun, in breach of that ruling, "grossly negligently" as the judge said, the prosecution inadvertently disclosed, in an unredacted paragraph of a document, highly secret and sensitive material. Before the error was realised, the material was read by leading and junior counsel representing the two appellants and leading counsel for G informed his solicitors about that material. Later that day, the judge made an interim order that those to whom such disclosure had been made should not further disseminate the material to any third party, including their clients. It had, by this time, become apparent that, for unconnected reasons, one of the jury, and therefore probably the whole jury, would have to be discharged. 5. On Monday 17th May there was a further ex parte hearing before the judge which only the prosecution attended when the propriety of the order made on 21st April was revisited. Prosecution counsel had sought a hearing attended by counsel for the appellants but they thought it inappropriate to take part. Confidential written submissions were lodged by counsel to whom inadvertent disclosure had been made and to whom we shall refer for brevity as being "in the know" and written submissions were also made by leading counsel not in the know on behalf of R. The judge made a provisional ruling, in the light of those submissions, that the information inadvertently disclosed should not be disclosed to the defence and that no injustice would, in consequence, result to any of the defendants. 6. On 19th May the jury were discharged. The judge then heard further argument as to the principles surrounding a debarring order of the kind provisionally made on the 14th, as to whether this court would have jurisdiction to entertain an appeal and as to the merits of him granting leave to appeal. He distinguished Davis, Johnson and Rowe 97 Cr App R 110 and ruled that there would be a ban on dissemination by lawyers in the know to anyone, including their clients, that no use must be made by the lawyers of the information wrongly disclosed and that the order was being made at a preparatory hearing pursuant to sections 7 and 9 of the Criminal Justice Act 1987 and was therefore subject to interlocutory appeal. He gave the two appellants leave to appeal but refused leave to the other three defendants. All the wrongly disclosed documents were returned to the Crown pursuant to the order made by the judge, though junior counsel for B made a note, which he still has, of the sensitive material. 7. It is that ruling of 19th May that is the subject of present challenge by way of appeal. We have been greatly assisted by the written and oral submissions which we have received from Mr Mitchell QC on behalf of G, Mr Miskin QC on behalf of B, Mr Rhodes QC on behalf of the other three defendants, and Mr Temple QC on behalf of the Crown. We have also received and are grateful for submissions from Mr Spens QC on behalf of the Bar Council and Mr David Perry on behalf of the Law Society. 8. We intend no disrespect to counsel if, in the interests of brevity, we do not rehearse their arguments but proceed to our conclusions and the reasons for them. 9. The first question which arises is whether this court has jurisdiction to entertain an appeal. For the Crown, Mr Temple QC accepts that the judge's determination related to the admissibility of evidence and/or a question of law within section 9(3) of the Criminal Justice Act 1987 . But he challenges the judge's conclusion that he was holding a preparatory hearing within section 7 of that Act . He relied on Gunawardena 91 Cr App R 55, Moore & others CACD transcript 4th February 1991, and Hedworth [1997] 1 Cr App R 421 , and submitted that, notwithstanding Claydon [2001] EWCA Crim 1359 and Attorney-General's Reference No 1 of 2004 [2004] EWCA Crim 1025 , the judge's order was not for the purpose of trial management. 10. We indicated our view, during submissions, that we do have jurisdiction. In our judgment, the judge was right to hold that, the jury having been discharged, what took place on 19th May was a preparatory hearing, in a case of serious and complex fraud, for the purpose of assisting him in the management of the trial within section 7(1) (d) of the 1987 Act . Nothing in Gunawardena , Moore or Hedworth is inconsistent with that view. The judge's order, made for the purposes of the trial when a new jury was empanelled, restricted communication between lawyers and clients and precluded the deployment in evidence or cross-examination of the disclosed sensitive material. Such an order, as it seems to us, self-evidently assisted the judge's management of the trial and the hearing on 19th May was held for that purpose. 11. The second question is whether the judge had jurisdiction to make the order on 19th May. There is no doubt, and it is not suggested to the contrary, that the judge was entitled, by virtue of section 3(6) and section 7(5) of the Criminal Procedure and Investigation Act 1996 , to make the order for non-disclosure which he made on 21st April. By virtue of section 45(4) of the Supreme Court Act 1981 the Crown Court has High Court powers in relation to contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction. It is clear that the judge regarded his provisional orders on 14th and 17th May and his final order on 19th May as being ancillary to his order of 21st April. He was right so to do. He had jurisdiction to make appropriate orders ancillary, and giving effect to his order of 21st April. An order under section 3(6) is made at the behest of the prosecution and has the effect of exonerating them from the obligation otherwise to disclose the sensitive material. But once the court has concluded that disclosure is not in the public interest it is entitled to give effect to that conclusion by making appropriate, supportive, ancillary orders. 12. The third question is whether the order of 19th May was appropriate. It is to be noted that the judge's prohibition on use of the wrongly disclosed material was new. It is also to be noted that he concluded that no injustice would result from maintenance of the original order, that there was no impediment to the legal advisers properly continuing to act and that knowledge by the lay clients of the unauthorised material was unnecessary for just disposal of the trial. 13. It is apparent that, if the judge's order holds good, there will be a number of consequences in relation to the conduct of the trial. First, counsel in the know will be unable to discuss the sensitive material with their clients, obtain their instructions as to its accuracy, advise the client about his rights in relation to it (including as to a possible stay for abuse of process) or use it in cross-examination or otherwise. Secondly, it will be necessary during this very long trial for counsel and solicitors acting for G and for counsel acting for B to take care throughout not to let slip, however inadvertently, the sensitive material, to their clients or to anyone else not in the know, including counsel for the other three defendants, otherwise they will be in contempt of court. In D&J Constructions v Head [1987] 9 NSWLR 118 at 122, Bryson J, in a passage cited by Clarke LJ in Koch Shipping v Richards Butler [2002] EWCA Civ 1280 paragraph 31, said, in relation to information barriers in the civil sphere: "... it is not realistic to place reliance on such arrangements in relation to people with opportunities for daily contact over long periods, as wordless communication can take place inadvertently and without explicit expression, by attitudes, facial expression or even by avoiding people one is accustomed to see, even by people who sincerely intend to conform to control." Thirdly, policing the behaviour of those restrained both outside as well as inside court will be virtually impossible: any communication to the client will be protected by legal privilege, to which the English and Strasbourg courts attach great importance (see per Lord Hoffmann, with whose speech the other members of the House agreed, in R (Morgan Grenfell) v Special Commissioners of Income Tax [2003] 1 AC 263 at paragraph 7). Fourthly, the relationship between a lawyer in the know and his client is bound to be damaged because, in addition to preventing frankness and fettering the free flow of information between lawyer and client, the order is likely to nurture in the client a belief that his lawyers are putting other interests, possibly including those of the prosecution, above his own. The client's reasonable perception of the relationship is, as it seems to us, a matter of importance. Fifthly, the judge has a continuing responsibility to keep his PII order under review in the light of developments in the case and the submissions made to him ex parte by the Crown and inter partes by the defence; defence submissions by those in the know will be entirely artificial if those advancing them are precluded from referring to the very material which is the subject of PII and the distinction between overt use and inward thoughts is not always easy to maintain - see per Sir Nicholas Browne-Wilkinson VC in English and American Insurance v Herbert Smith [1988] FSR 232 at 240. Finally, the creation of an asymmetrical Chinese wall between some but not all of the lawyers and their clients will make it impossible for the other defendants, whose lawyers are not in the know, to avoid a sense of unfairness if those representing their co-accused are in possession of information which is denied to their lawyers but which might be of benefit to the conduct of their defence. The point was graphically illustrated in the proceedings before this court, which included the submission of skeleton arguments by those in the know which could not be seen by co-defendants and their representatives not in the know, and the repeated exclusion from court of those not in the know during submissions for co-accused. 14. We turn to consider whether the authorities to which we have been referred suggest or permit such a surprising result. We deal first with the submissions made on behalf of the two professional bodies. The Law Society acknowledged that a solicitor's duty to disclose all relevant information to clients is not an absolute one, but observed that any departure from it is "a matter of profound concern" and should happen only where "circumstances compel such a conclusion". The public interest in the administration of justice must be the determining factor where principles of conduct are in conflict. The Law Society emphasised that the trial judge expressed the opinion that "the just determination of these criminal proceedings does not require that any person including the defendants should be informed of the contents of the unauthorised disclosure", commenting that he "appears well placed to make this assessment". They do not challenge the judge's conclusion that the legal advisers could continue to represent their clients properly and effectively. The Bar Council however submit that it is for counsel alone to decide whether they can continue to act (weighing professional embarrassment and any jeopardy to the lay client's interests) because the judge does not know all that counsel knows. We think it right, both in principle and pragmatically, that whether a solicitor or barrister can properly continue to act is a matter for him or her not the court, although of course the court can properly make observations on the matter. The Law Society also observes that, in publicly funded cases, the trial judge decides whether a change of representation is justified: see the Criminal Defence Service (General) (No 2) Regulations 2001, regulation 16. Absent exceptional circumstances, such as an obvious attempt by a defendant to abuse the system by repeated applications, we think it is unlikely that, if leading counsel tells a judge he is embarrassed to continue acting, the judge will not permit a change of representation. 15. In civil proceedings, the courts in some circumstances will not permit the use of a privileged document inadvertently disclosed: CPR 31.20. The circumstances in which its use will be permitted and when it will be restrained were considered by the Court of Appeal, Civil Division, in Al-Fayed v Commissioner of Police and the Metropolis [2001] EWCA 780. The essential question is what justice requires. In particular, use of a document might be prevented if inspection of it was procured by fraud, and will sometimes be prevented if disclosure was made by an obvious mistake. This is so whether the document was protected from disclosure by legal professional privilege or by public interest immunity which the party concerned was not bound to assert: see Al-Fayed , the judgment of Clarke LJ at paragraph 17. However, use will not be prevented unless it would be unjust or inequitable to use it, and this question may well involve considering whether it is too late to restore the status quo: see Guinness Peat Ltd v Fitzroy Robinson [1987] 1 WLR 1027 per Slade LJ at 1046. 16. There is no reason in principle why a Crown Court, exercising the jurisdiction to which we have earlier referred, should not similarly restrain the use of material inadvertently disclosed, although the particular circumstances of the case which dictate whether justice requires an order will, of course, be different. In a criminal case with more than one defendant, regard must be had to the position both between the prosecution and the defendants and between the defendants. However, the appellants submit, referring to Archbold paragraph 12-16, that no comparable remedy is ever available in the event of inadvertent disclosure in criminal proceedings, at least in the case of a public prosecution. The basis of this view in Archbold is that cases such as Kuruma [1955] AC 1978 establish that admissibility of evidence depends upon relevance and it is immaterial how the evidence was obtained. We do not accept that reasoning or its conclusion. The approach in Kuruma applies in civil cases: see Calcroft v Guest [1898] 1 QB 759 . But a sharp distinction has been drawn between restraining a person from divulging or using confidential information which has come into his possession, including using it in litigation before trial, and preventing its use at trial: see Ashburton v Pape [1913] 2 Ch 469 , particularly at page 476. 17. It is not necessary for the purposes of this appeal for us to define the circumstances in which the Crown Court might exercise similar powers to those established in a civil context and restrain use of documents inadvertently disclosed in criminal proceedings. Nor is it necessary to consider a submission by Mr Miskin that, even if such powers are available (in that there can be restraint of disclosure and use of confidential material in advance of a criminal trial), here, by virtue of section 8 of the Criminal Justice Act 1987 , the trial had started with the preparatory hearing. It suffices to say that disclosure and use should not, in our judgment, have been restrained in this case, not least because it was too late to restore the status quo having regard to all the matters set out above, and therefore it was not just or equitable to order restraint. 18. We have considerable sympathy with the trial judge who faced an extraordinary situation. On 14th May he was right to staunch by his interim order any further dissemination of the material. On 17th May he was right to revisit his 21st April ruling and to consider its continuing propriety. But on 19th May, albeit that he did not have the advantage, if such it be, of being referred to the large number of authorities before us, he fell into error in two other important respects. 19. First, Davis, Johnson and Rowe was not, in our judgment, distinguishable. It is true that in that case there was no inadvertent disclosure. But we can see no difference in principle between the court seeking an undertaking from a lawyer not to disclose material to his client which he has seen, and making an order to that effect. We regard the observations of Lord Taylor CJ in that case at page 113 as being equally apt in the present circumstances: "It would wholly undermine counsel's relationship with his client if he were privy to issues in court but could reveal neither the discussion nor even the issues to his client." Secondly, the judge was wrong to conclude that counsel and solicitors, albeit restrained by his order, could properly continue to act. As we have indicated, it is for counsel and solicitors, not the court, to make that decision in the light of all the circumstances known to them, some of which may not, for reasons of legal privilege or otherwise, be known to the court. It is also to be noted that the House of Lords in H and C [2004] 2 WLR 335 have recently considered PII procedures and their compatibility with Article 6 of the European Convention on Human Rights. The appellate committee on that occasion included three present or former Lord Chief Justices of England or Northern Ireland, and a former Lord Justice General of Scotland. They did not, of course, address the sort of circumstances which have arisen in this case. But it seems unlikely that procedures for the appointment of special counsel, approved in paragraph 36(4) of the opinion delivered by Lord Bingham of Cornhill, would have been considered necessary had their Lordships thought that it might be possible, in a criminal case, to compel the silence of legal representatives by such an order as was made in the present case. 20. Accordingly, these appeals are allowed. The judge's order of 19th May will be quashed, but not immediately. First, we shall hear submissions from counsel on behalf of all parties as to what the position of those in the know should be when the judge's order is quashed. 21. MR TEMPLE: My Lord, may I turn now directly to the invitation of the court to deal with how the Crown view the position of those in the know? Before I come to deal with that question in terms, may I just indicate to your Lordships that the Crown would wish to preserve their position on appeal. Clearly we have anticipated much of what your Lordship has said in the judgment. We have already drafted a possible three questions to place before your Lordships for certification and leave, if we felt it appropriate after having further digested the terms of the judgment. 22. So, with that in mind, may I turn to your Lordship's direct question with regard to the question of the position of those in the know. We would submit that the solution is this. There should be an order from this court that those in the know will not use or disseminate the inadvertently disclosed material (originally forming a short paragraph on a submission paper to the Attorney General) until further order of this court. Phrased in that way, the Crown submit that the position with regard to the exhaustion of the appeal process will be covered. 23. MR MITCHELL: My Lord, until further order of the court is not, with respect, appropriate. My learned friend, I believe, has fourteen days to come back before your Lordships for certification and the issue of leave. We would respectfully submit that if you are to make such an order -- and if I may reflect on that for a moment as I am addressing you -- it should be time limited to that fourteenth day. 24. THE VICE PRESIDENT: There are difficulties in that regard, Mr Mitchell, I can tell you at once, because not only is it the vacation next week, but the week after that I shall be away, so certainly for the next fourteen days there is no possibility of any question - unless it is submitted in the course of the next fifteen hours or so - being considered. 25. MR MITCHELL: Can I address that? We have at each stage when there has been a question of an interlocutory appeal -- twice with leave and once not with leave -- moved extremely quickly and within very few days, not worrying about time limits at all, to get the papers in before this court so that hearings could take place. They have all been expedited and there has been assistance from the court staff to make sure that we can get on. It seems, respectfully, rather unfair for the Crown now to be saying, knowing that we are supposed to be back on 7th June and starting, that they would like to, in effect, have their fourteen days before they have to come to some final -- 26. THE VICE PRESIDENT: Well they are entitled to them, Mr Mitchell. 27. MR MITCHELL: My Lord, so were we entitled. 28. THE VICE PRESIDENT: That may impress a jury; it does not impress me. 29. MR MITCHELL: My Lord, that is my first point. If your Lordship is away and the court is not sitting next week, my Lord, that adds weight to my respectful submission that really the Crown should go away and think about their position and come back either tomorrow morning or some time tomorrow with an answer. As to whether or not I -- 30. THE VICE PRESIDENT: The Crown, at the moment, are coming back at just after 10 o'clock tomorrow morning. 31. MR MITCHELL: Are they? They have asked for fourteen days, my Lord. 32. THE VICE PRESIDENT: No, no, but they are coming back in relation to other matters at 10 o'clock tomorrow morning, as matters stand at the moment, because that was discussed yesterday. 33. MR MITCHELL: As far as I am concerned -- and since this is also an issue of orders made personally -- first of all, I would prefer to give my undertaking to your Lordship than be subject to an order, and secondly, I would be prepared to give you an undertaking until such time as the question of the appeal is resolved, and then, my Lord, that undertaking should lapse, unless of course your Lordships decide that there are issues to certify and leave is to be granted, in which case -- 34. THE VICE PRESIDENT: If that route was followed it would obviously have to be an undertaking on behalf of junior counsel and your solicitors as well. 35. MR MITCHELL: It may be that they would each consider it is appropriate, either as counsel or, in the case of the solicitor, as an officer of the court, to give that undertaking individually and personally. 36. THE VICE PRESIDENT: If they hear you give such an undertaking in their presence maybe they would be bound by it. 37. MR MITCHELL: (Instructions taken.) One of the party in the know is taking a well-deserved Bank Holiday weekend and has already gone, and we will try to communicate with him. He is the member of the Bar who is a paralegal at those instructing me, but all present are content for me to give an undertaking on their behalfs, and myself, to the court. My Lord, that undertaking is plainly something which should be revisited as soon as the Crown have determined what it is they wish to do. Whether your Lordships grant leave or not to any application they make will impact upon whether that undertaking continues. But, my Lord, to permit the Crown to have breathing space, in the same way that we acceded, without demur, to the judge's original holding order that we would give such an undertaking. It is the only way to assist this matter being properly thought through and resolved. 38. THE VICE PRESIDENT: Thank you. Mr Miskin? 39. MR MISKIN: My Lord, I said to Field J that I would carefully consider the matter at that point. I would prefer an order, and so would my junior. I am, of course, happy to give an undertaking, but I would just prefer an order. 40. THE VICE PRESIDENT: Mr Temple, what, if anything, do you contemplate in the context of your perfectly proper application for fourteen days should happen tomorrow morning at 10 o'clock? 41. MR TEMPLE: Nothing, my Lord. In view of your Lordships' judgment, the matters your Lordship raised, I think, if my memory serves me best, for discussion tomorrow morning, have now been subsumed by the exchanges we have had today, namely how your Lordship should deal with the question of "those in the know". 42. THE VICE PRESIDENT: Do the questions which you are going to ask us to certify already exist? 43. MR TEMPLE: They do, my Lord, in draft form. May I please emphasise that clearly these are important matters. They need to be properly thought through and discussed with those who instruct us and we would like time to go through that exercise, and particularly we would wish to reflect upon the precise terms of your Lordships' judgment. 44. THE VICE PRESIDENT: Bearing in mind that this is an interlocutory appeal, I merely make the comment: I do not know to what extent you are likely to be able to excite the interest of the House of Lords, even if you persuade us to certify some questions, but ... 45. MR TEMPLE: We would hope their Lordships would be excited by the prospect of hearing these matters. 46. THE VICE PRESIDENT: Yes; there it is. 47. MR MITCHELL: My Lord, before your Lordships reflects a little further, may I respectfully make this suggestion? The trial cannot start until this appeal is resolved. It may be that your Lordships have indicated what it is that the final order of this court is going to be but the court does not perfect its order, and it is that that would lead to the original order being quashed, and it would be then that my learned friend, of course, would be in a position to determine where he wishes to go with his appeal. Provided he was prepared to put himself in a position as if you had quashed the order today but you do not quash it, and we return here on the first day when your Lordships resits for my learned friend to make his submissions, we are then all in a position (a) to continue to be bound by the order which you indicated you will eventually quash, (b) that the appeal is still extant, so the trial properly will not start before a jury until the Crown have made their minds up, and (c) it means that there is a finite date, a definite date, when we can come back before the court and my learned friend can be called upon to indicate what his position is. That occurred to me, whilst the exchanges were going on, as being a sensible way, if I may put it that way, of resolving the issue about whether it is an undertaking or an order, and giving my learned friend the breathing space that he wishes and ensuring that the court remains in control of the events until the Crown have made their minds up. 48. THE VICE PRESIDENT: The only possible complication so far as that is concerned is that until the court gives its judgment, or finalises its judgment, the Crown have fourteen days within which to consider the matter. 49. MR MITCHELL: One would imagine that, in the light of the way the exchanges are taking place, the Crown would be prepared to abridge the claim for an extra fourteen days because this is the purpose of them having the time from now, and it would need Mr Temple to agree to that. Then we could come back on the first date that my Lords were able to reassemble after the break which your Lordship has referred to. 50. THE VICE PRESIDENT: That may be some time ... (The Bench conferred.) 51. MR MITCHELL: My Lord, Monday the 14th, I think Mr Temple appears to find that appropriate -- and others will need to address you -- but I would certainly be happy for your Lordship to approach it on that basis. 52. THE VICE PRESIDENT: That, of course, presupposes that the court has nothing else to do on the 14th. I shall actually be sitting in the Divisional Court at that time. 53. MR MITCHELL: I was not for a moment suggesting that it was anything other than a proposal to my Lord as to what may be convenient to the Crown. 54. THE VICE PRESIDENT: Yes. 55. MR MISKIN: My Lord, this case has had a rather unhappy history. I think it was last October that the learned trial judge said that it would take a cataclysmic event to move the trial from a start date of January this year. A cataclysmic event did occur in December of this year, when the SFO served papers equivalent in size to a medium size SFO case upon the defence a few days before the start of the proposed trial. We objected to that adjournment being granted, which was done on the application of the Crown, and said that the material should simply be excluded or not included without leave. His Lordship reluctantly granted the application to adjourn, and the trial date was set for April the 19th. The jury have been hanging around now, I do not know how many weeks it has been, but they have already been sent away once for several weeks, and now come back and were sent away again, or eleven of them were, again until 7th June. His Lordship has repeatedly stated, and done his best to ensure, that any appellate process is quickly dealt with. There have been two appeals already, one of which went to the appellate committee and was refused, no leave granted. And that was done very quickly indeed. 56. In all the circumstances I submit, my Lord, that there is no reason why the Crown, who have drafted the points -- and the points must be obvious -- should not perfect those points within the next 24 hours and serve them for your Lordships' consideration tomorrow morning. 57. THE VICE PRESIDENT: Thank you. Mr Rhodes, the discussion has rather widened; it now embraces you. 58. MR RHODES: My Lord, yes. My learned friend Mr Miskin took out my mouth most of the words I was going to put before my Lords. What I would say is this. Let us assume, for the sake of argument, that in the week commencing 14th June this court was able to hear and determine the application to certify; let us assume that, in accordance with its usual practice, if it were to certify, it would not grant leave, but leave it to the House of Lords to decide whether they wished to hear this appeal. The prosecution would have fourteen days in which to serve their petition for leave to appeal, which would take us until the end of June. There is no way in which this actual appeal could come on, assuming their Lordships were to grant leave, in the course of next term; it would not come on until the Michaelmas term - that would be at the earliest. The effect of that would be that this trial, which has been hanging about for far too long already, would not start until next January at the earliest. My Lord, that is why I support my learned friend Mr Miskin in his request to your Lordship to put pressure on my learned friend for the Crown to make his application to certify tomorrow morning. 59. THE VICE PRESIDENT: Do you want to say anything else, Mr Temple? 60. MR TEMPLE: No, my Lord, other than to reiterate that we would wish to have proper time to reflect on these matters - proper time meaning more than tomorrow morning. 61. THE VICE PRESIDENT: We shall retire for a moment. (The court adjourned for a short time.) 62. THE VICE PRESIDENT: In the special circumstances of this case, we shall direct that draft questions for possible certification by this court for consideration by the House of Lords will be submitted by 10 o'clock tomorrow morning. Argument in relation to those will take place tomorrow morning not before 10 o'clock and after the handing down of the judgment in another case which I mentioned yesterday. In the meantime the order of the trial judge in relation to those in the know will remain in force. 63. MR MISKIN: My Lord, we have been asked by the reporters if they may report this. It is section 11(5) of the Criminal Justice Act 1987 which empowers your Lordship to permit the reporting of something which is otherwise unreportable. The judgment is entirely sanitised. I have consulted with my learned friend Mr Mitchell, and we are content that, if your Lordship is to permit reporting, that the case be called G and B. 64. THE VICE PRESIDENT: Have you any comment on that, Mr Temple? 65. MR TEMPLE: No, my Lord, none. 66. THE VICE PRESIDENT: I did take care, I think, to sanitise the judgment. 67. MR TEMPLE: No further submissions, my Lord. 68. THE VICE PRESIDENT: Thank you. Well then -- 69. MR MITCHELL: Your Lordship will have the benefit of Mr Martin tomorrow morning. 70. THE VICE PRESIDENT: Well, it was of great excitement, Mr Mitchell, in view of your other commitments, to see you today. 71. MR MITCHELL: I had a very exciting day yesterday. 72. MR RHODES: Before your Lordships rise, would your Lordships formally grant legal aid for leading and junior counsel for the interveners? 73. THE VICE PRESIDENT: Oh yes, poor Mr Rhodes! We shall make -- 74. MR RHODES: Otherwise I shall be troubling -- 75. THE VICE PRESIDENT: I think we have nowadays to call it a representation order for leading and junior counsel. And have you got some solicitors as well? 76. MR RHODES: My Lord, yes. 77. THE VICE PRESIDENT: Yes, so be it. 78. MR MISKIN: I think, my Lord, that is his second application. Does he get twice as much, my Lord? 79. THE VICE PRESIDENT: Thank you, Mr Miskin.

```yaml citation: '[2004] EWCA Crim 1368' date: '2004-05-27' judges: - LORD JUSTICE ROSE - MR JUSTICE CRESSWELL - MR JUSTICE ANDREW 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} ======

No. 2008/00390/D5 Neutral Citation Number: [2008] EWCA Crim 269 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Monday 28 January 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE SILBER and MR JUSTICE UNDERHILL __________________ R E G I N A - v - WANG YAM __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ Miss K Brimelow appeared on behalf of the Applicant ____________________ Judgment THE LORD CHIEF JUSTICE: 1. The applicant is due to be tried before Ouseley J and a jury in the Central Criminal Court on an indictment charging him with the murder of Allan Chappelow and with offences of dishonesty. On 15 January 2008 the judge made an order excluding access of the public to part of the proceeding. The applicant seeks leave to appeal against that order. 2. Rule 65.6(3) of the Criminal Procedure Rules 2005 provides: "Where the appellant wants to appeal against an order restricting public access to a trial the court must decide without a hearing -- (a) an application, including an application for permission to appeal; and (b) an appeal." 3. This court in Ex parte A [2006] EWCA Crim 04 held that this rule was compatible with Articles 6 and 10 of the European Convention on Human Rights and with our common law. We rejected an application by the applicant that we should disregard this rule and hold an oral hearing of this application. Had we decided, on consideration of the papers, that the interests of justice required an oral hearing, we would have addressed the question of whether we could override this rule. In the event, however, we were satisfied that we could deal fairly with the application on the documents, which included written submissions filed on behalf of the applicant and the Crown. 4. The hearing below took place partly in open court and partly in private. The judge gave two judgments, one in open court and one in camera. We propose to adopt the same course. 5. Rule 16.10 of the Criminal Procedure Rules provides: "Where a prosecutor or a defendant intends to apply for an order that all or part of a trial be held in camera for reasons of national security or for the protection of the identity of a witness or any other person, he shall not less than seven days before the date on which the trial is expected to begin serve a notice in writing to that effect on a Crown Court officer and the prosecutor or the defendant as the case may be." Some passages in the open judgment of Ouseley J might suggest that this rule itself confers power to hold all or part of a trial in camera for reasons of national security or for the protection of the identity of a witness or other person. That is not, however, the position; nor, when his judgment is read as a whole, did Ouseley J suggest that it was. Rule 16.10 deals with the procedure for applying for evidence to be heard in camera on the stated grounds. It assumes, correctly, that those grounds can justify an order for hearing evidence in camera but the justification for such an order does not lie in the rule itself. 6. Section 8(4) of the Official Secrets Act 1920 gives power to exclude the public from proceedings under the Official Secrets Acts on the ground that publication of the evidence to be given would be prejudicial to the national safety. That section has no application to the present proceedings. The section expressly states, however, that the power is "without prejudice to any powers which the court may possess to order the exclusion of the public from any proceedings". Ouseley J rightly held in his public judgment that he had an inherent power to exclude the press and the public where the interests of justice required it. He also made it plain that the interests of justice could never justify excluding the press and the public if the consequence would be that the trial would not be fair. 7. Ouseley J held, on the basis of material placed before him in camera, that if the press and the public were not excluded from certain parts of the trial, "serious risks would be taken". So serious were these risks that the Crown might well drop the prosecution rather than incur them. If the press and the public were excluded from the relevant parts of the trial, the trial would go ahead, the risks would not be taken and a fair trial would nonetheless be possible. In these circumstances the interests of justice required that he should order the exclusion of the press and the public from those parts of the trial. 8. In seeking leave to appeal Mr Robertson QC has not suggested that the judge's decision was erroneous if his analysis of the facts was correct. He submitted, however, that the judge was wrong to conclude that, if parts of the trial were not held in camera, the risks would be so great as to justify the Crown in dropping the prosecution. He described the suggestion that the Crown would do so as "forensic blackmail". He further submitted that the judge was wrong to conclude that if the press and the public were excluded from parts of the trial, the trial would nonetheless be fair. 9. These submissions depend upon the facts that were explored by the judge in camera and that were the subject of the private judgment that he gave. We have considered not merely all the evidence that was placed before the judge, but the transcript of the hearing that took place in camera. For the reasons that we have set out in our private judgment we have concluded that the judge correctly applied the relevant law to the facts before him and that his decision was correct. Accordingly, the application is refused. __________________________

```yaml citation: '[2008] EWCA Crim 269' date: '2008-01-28' judges: - MR JUSTICE SILBER - 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: 2003/03081 Z1 Neutral Citation Number: [2003] EWCA Crim 2086 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 4 July 2003 B E F O R E: LORD JUSTICE KEENE MR JUSTICE MOSES MR JUSTICE SIMON - - - - - - - R E G I N A -v- M A P - - - - - - - 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 HEATON ARMSTRONG appeared on behalf of the APPELLANT MR J GREENHOUSE appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE MOSES: This is an appeal brought with leave against an order of 16th October 2002 at Lewes Crown Court. The appellant was convicted and sentenced of an offence of making a threat to kill and ordered to be detained in hospital for treatment pursuant to section 37 of the Mental Health Act 1983 . 2. The facts can be shortly stated. The appellant approached a retired army officer on 10th June 2001 in the early evening and referred to a police officer, PC Chaffey, who he said had arrested him for drink driving. He said that that officer had handcuffed him and that he was going to kill that police officer. He elaborated on that to the extent that the retired army officer, very sensibly, reported the matter. 3. The appellant denied it but, as we have said, was found guilty. The threats had a particularly distressing effect both on the police officer, who had indeed had dealings with this appellant, and his wife and family. It appeared that this was not the first time that the appellant had become obsessed at what he perceived to be a grievance against the police and particular police officers, and had, early in January 2001, been placed on probation for assault on a police officer. 4. He was at the time 42 years old and medical reports, as a result of requests from those he had instructed, were sought. A medical report was obtained from Dr Stamps, who had last seen him in October 2002 but, more significantly, a report had been obtained from a Dr Warsi. He wrote in January 2003( in a report dated 28th January) saying that he was leaving his post on 17th January 2003. He had not seen this appellant since June 2000. Both reports described the depression of this appellant, together with paranoid features. He was apparently abusing alcohol so as to cope with his life. Both reports spoke of the appellant suffering from a mental illness susceptible of treatment in hospital. 5. However, the report from Dr Warsi made it clear, as we have said, that he had not seen this appellant since June 2000, and indeed Dr Warsi spoke of his needing a full assessment in hospital. 6. It is plain to us that the necessary requirements of section 37 were not satisfied. In those circumstances it was, in our view, not open to the Recorder to make an order under section 37 . Section 37(1) requires certain conditions to be satisfied before an order made under that section is passed. Section 37 (2) provides: "(1) The court shall not make a supervision and treatment order unless it is satisfied- (a) that, having regard to all the circumstances of the case, the making of such an order is the most suitable means of dealing with the accused or appellant; and (b) on the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved, that the mental condition of the accused or appellant- (i) is such as requires and may be susceptible to treatment; but (ii) is not such as to warrant the making of an admission order within the meaning of Schedule 1 to this Act , or the making of a guardianship order within the meaning of the 1983 Act . (4) An order for the admission of an offender to a hospital shall not be made under this section unless the court is satisfied on the written or oral evidence of the registerd medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital ... and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety. (7) A hospital order or guardianship order shall specify the form or forms of mental disorder referred to in subsection (2)(a) above from which, upon the evidence taken into account under that subsection, the offender is found by the court to be sufering; and no such order shall be made unless the offender is described by each of the practitioners whose evidence is taken into account under that subsection as suffering from the same one of those forms of mental disorder, whether or not he is also described by either of them as suffering from another of them." It is quite plain from these provisions that what is required is an up-to-date assessment of a defendant so that a court may be satisfied as to his current mental condition at the time of sentencing, and as to his susceptibility to treatment at the time of sentencing. It is plain from Dr Warsi's report that he was not in a position so to satisfy the court. In those circumstance we take the view that an order should not have been made on the basis of that report from Dr Warsi. 7. This court must decide what the appropriate method of dealing with this appellant is, having regard to the fact that it is not open to the court, pursuant to section 11 of the Criminal Appeals Act, to deal with him more severely then he was dealt with by the Crown Court. Mr Heaton Armstrong points out that this appellant has already been in custody for 190 days. He is currently in hospital (although he is free to come and go) and normally, unless the order was renewed, he would be free to go after six months: see in particular R v Beulah Birch [1989] 11 Cr App R (S) 202 at 210. It is, therefore, contended that it would be wrong to deal with this appellant in any other way than to order his immediate release. 8. We do not agree. We think that having regard to the gravity of this matter and the serious mental condition under which this appellant appears to be labouring, or to have laboured in the past, that it is most important before this court makes any final order as to the proper disposal of this appeal that an up-to-date report is obtained so that this court is in the best position possible to ascertain what the appropriate method of dealing with this appellant might transpire to be. In those circumstances, we think that the appropriate wayof dealing with this appellant is to adjourn this matter so that up-to-date reports can be obtained as to his current mental condition and as to his susceptibility for treatment. We do not think it would be appropriate to take any steps, without such up-to-date information, that would lead to his immediate release. 9. LORD JUSTICE KEENE: The formal order then of this court is that this appeal is adjourned. We direct that reports from two registered medical practitioners, qualified under section 12 of the Act , be obtained within 28 days, dealing with the appellant's current condition, for the purposes of section 37 . One of those reports may be but need not be from Dr Stamps. 10. We extend legal aid to cover the obtaining of those reports by solicitors for the appellant. There should also be a report from the Probation Service on the suitability of the appellant for a community rehabilitation order with conditions as an alternative to a hospital order. This appeal is then to be listed after 28 days from today but before 14th August 2003. It is not reserved to this constitution. 11. MR GREENHOUSE: Is the Crown directed to attend on the second listing also? 12. LORD JUSTICE KEENE: Yes. 13. MR HEATON ARMSTRONG: My Lord, excuse me for troubling you over practicalities. 14. LORD JUSTICE KEENE: No, certainly, please do. 15. MR HEATON ARMSTRONG: I am concerned as to who should communicate to the probation service the need for a report? 16. MR GREENHOUSE: My Lords, I can undertake to do that. 17. LORD JUSTICE KEENE: Thank you, Mr Greenhouse. 18. MR HEATON ARMSTRONG: Will the court itself communicate with the solicitors who the appellant has instructed to assist him on this appeal, or would the court prefer me to do that? 19. LORD JUSTICE KEENE: I would have thought it is more convenient if you would directly, you would hope no doubt to be instructed on the adjourned appeal. 20. MR HEATON ARMSTRONG: Thank you. 21. LORD JUSTICE KEENE: Very well.

```yaml citation: '[2003] EWCA Crim 2086' date: '2003-07-04' judges: - LORD JUSTICE KEENE - MR JUSTICE MOSES - 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} ======

Case No: 200504638/A2 Neutral Citation Number: [2006] EWCA Crim 1140 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM The Crown Court Oxford His Honour Judge Morton Jack T20050045 Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 17 May 2006 Before : LORD JUSTICE WALLER MR JUSTICE GRIGSON and HIS HONOUR JUDGE RADFORD - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - Mark Clive Drewett Appellant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Tony McGeorge (instructed by CPS) for the Respondent Ian Jobling (instructed by MacNab Clarke, Solicitors ) for the Appellant - - - - - - - - - - - - - - - - - - - - - Judgment His Honour Judge Radford : 1. On the 7 th July 2005, at the Crown Court at Oxford, on the day the case was listed for trial, the appellant pleaded guilty on re-arraignment to an offence of possessing crack cocaine, a drug of class A, with intent to supply. On the 28 th July 2005 he was sentenced by His Honour Judge Morton Jack to 8 yrs and 26 days imprisonment: ancillary orders for forfeiture and destruction of the drugs and confiscation were made. 2. On the 23 rd of February 2006, we stated that we would be allowing this appeal to such extent and for such reasons as would later be handed down in writing. We now set out our judgement on the appeal and our reasons for it. Facts 3. On 16th February 2005 police officers were on the look out for a blue VW Golf motor car, which they suspected was being used in connection with drug dealing. It was seen being driven around with the appellant as a passenger. Later it was driven to a car park where police officers found it parked. They kept it under observation and saw 2 men go to the car, one was the appellant. He got into the driver’s seat. Both men were arrested. When the appellant was searched he was found to be in possession of £320 in cash. His mobile phone rang 21 times whilst he and the car were being searched. The appellant was taken to the police station. He was searched again and 6 wraps of crack cocaine (as pure cocaine weighing 1.16 grams) were found between the cheeks of his bottom. The appellant claimed that the substances were heroin and for his own use. He was later interviewed. He declined to answer the officers’ questions but did produce a prepared statement in which he said he was not involved in the commercial sale of drugs, that the drugs found on him were for his own use and that the £320 in his possession comprised the proceeds of money owed to him from a previous employer, Christmas money and a recently cashed Giro cheque. Antecedents 4. The appellant was aged 31 at the time of sentence, having been born on the 2 nd December 1973. He had a total of 25 previous convictions for which he had appeared in court on 8 separate occasions. Of particular relevance were his previous convictions for supplying Class A Drugs. On the 6 th November 1995 he was convicted at Oxford Crown Court of 3 offences of supplying crack cocaine and sentenced to a total of 18 months imprisonment, and on the 11 th June 2001, again at the Oxford Crown Court, the appellant was sentenced to a total of 5 years imprisonment concurrent for offences of possessing a controlled drug (namely crack cocaine) with intent to supply and conspiring to possess a controlled drug of Class A (heroin) with intent to supply. Pre-Sentence Report 5. There was a pre-sentence report before the judge. It informed him that: (a) The appellant had been released on licence (for the second time) from his previous custodial sentences on the 24 th December 2004 and (b) the appellant’s explanation for his re-offending was that he had been coerced by threats of violence into dealing in drugs again by people to whom he owed money for drugs purchased for his own use. The author noted that as a result of his further offending the appellant had been recalled to prison for breach of his licence conditions on the 28 th . February and would not now be released from his previous sentences until those sentences expired on the 26 th March 2006. The period of time between 28 th February 2005 and 26 th March 2006, as the judge was to observe when passing sentence was 1 year and 26 days. Mitigation 6. In mitigation the appellant’s counsel, Mr Jobling, accepted, as he accepted before us, that as the offence for which the appellant fell to be sentenced was a Class A drugs trafficking offence committed after the 30 th September 1997 and that as the appellant had been convicted sequentially of 2 other drug trafficking offences, the provisions of section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 ( the 2000 Act ) applied and that, save for such credit for the appellant’s very late plea of guilty as might be given pursuant to section 152(3) of the same Act, the judge had to pass a minimum Sentence of 7 years imprisonment, unless he concluded that, pursuant to the provisions of section 110(2) of the Act , there were particular circumstances which related to any of the relevant drug trafficking offences or the appellant that would make it unjust in all the circumstances to pass a minimum sentence of 7 years imprisonment. Section 110 of the 2000 Act (1) This section applies where (a) a person is convicted of a Class A drug trafficking offence committed after 30 th September 1997. (b) at the time when the offence was committed, he was 18 or over and had been convicted in any part of the UK of 2 other Class A drug trafficking offences and (c) one of these other offences was committed after he had been convicted of the offence (2) The Court shall impose …. an appropriate custodial sentence of at least 7 years except where the court is of the opinion that there are particular circumstances which (a) relate to any of the offences or to the offender: and (b) would make it unjust to do so in all the circumstances”. 7. It is also of relevance to note, but unnecessary to recite, that Section 152 (3) of the same Act provided that the sentencing judge could reduce the otherwise minimum sentence of 7 years imprisonment to not less that 80 percent of the 7 year term where the defendant has pleaded guilty to the offence. Sentencing Observations 8. The judge concluded that there were no particular circumstances, pursuant to Section 110 (2) of the 2000 Act , for not operating the minimum sentence provisions (a conclusion which is not sought to be criticised before this court). He went on though to state that he took account of the fact that the appellant was only 31 years old and then said, and we quote his words from the transcript, “on the other hand I must have regard to your serious criminal record and that your plea of guilty was at the last moment. All in all, there is no good reason for imposing more than the statutory minimum Parliament decreed” If the judge had ended at that moment the sentence would have been one of 7 years imprisonment. However, he went on to say that another problem arose. He referred to the fact that the appellant had been recalled for breach of his licence and would not be released from his previous custodial sentence until 26 th March 2006, a period of 1 year 26 days. The judge then observed that:- “if the instant 7 year sentence runs concurrently with your recall the effect will be that the minimum in your case is less than 7 years. Put another way, it would mean that because you had been recalled for breach of your licence under sentence for another matter entirely you would be in a better position than a defendant who was being sentenced today without the complication of recall.” The judge concluded with these words, “That seems to me to be contrary to the intention of Parliament and to give effect to the 7 year minimum it is necessary to pass a sentence upon you of 8 years 26 days for the offence, and that is the sentence of this court.” Grounds of Appeal 9. In the grounds of appeal two contentions are advanced:- (1) that having determined that 7 years was the appropriate sentence applying the provisions of section 110 of the 2000 Act , it was wrong in principle for the judge then to have passed a longer sentence because the appellant had been recalled for breach of his licence upon which terms he had been released from custody in respect of his previous sentences and (2) the sentence was excessive having regard to the fact that it had been open to the judge to have reduced the 7 years minimum term to up to 80 per cent of that period, by giving the appellant appropriate credit for his plea of guilty, in accordance with the provisions of S.152 (3) of the 2000 Act . The Sentence of 8 year and 26 days: 10. We are of the view that the judge’s decision to impose a sentence of 8 years and 26 days was wrong in principle. There is in our judgement nothing in the wording of the relevant provisions contained in the 2000 Act which enabled the judge to arrive at such a construction of the statute. Furthermore, we know of no situation where this court has approved the conclusion that the appropriate commensurate sentence can or should be increased because the defendant prior to sentence had been recalled to custody by the Secretary of State on the recommendation of the Parole Board because of the breach of the terms of the licence upon which he had been released from a previous custodial sentence. That does not mean that the judge could not have addressed the question of ordering the recall of the appellant to custody in respect of some or all of the period of his previous 5 year custodial sentence outstanding at the date of his fresh offence pursuant to the provisions of Section 116 of the 2000 Act . We agree with the submissions made to us both by counsel for the appellant and counsel for the respondent that such a course was open to him. However, as this court made clear in the case of R v Taylor (1998) (Ct. App. R. (5) 312), before making a decision as to recall pursuant to section 116 of the 2000 Act the sentencing judge should decide first what is the appropriate sentence for the new offence, so that it received the sentence it merited. It is clear that the learned judge’s view was that the fresh offence merited the statutory minimum sentence of 7 years imprisonment no less and, except for the addition of the licence recall period, no more. Save for the question of credit for the plea of guilty, a sentence of 7 years is entirely appropriate. Credit for Guilty Plea 11. The appellant only tended his plea of guilty upon re – arraignment on the day of trial. Given that fact, and given that the maximum in credit allowable against an otherwise mandatory minimum sentence of 7 years imprisonment was, pursuant to section 152(3) of the 2000 Act , at most 20 per cent, the resonance in mitigation of sentence available on this ground was extremely limited. It is not clear from the learned judge’s sentencing observations as to what extent if any he was aware of the provisions of Section 152 (3) . We were told that it was not referred to by Counsel during the sentencing process. It would have been better if the judge had referred to this provision when passing sentence and spelt out more fully than he did as to why, despite the plea of guilty, he was not proposing to reduce the otherwise appropriate sentence of 7 years imprisonment. However, the judge did refer to the appellant having pleaded guilty at the last moment in arriving at his conclusion that “all in all, there is no good reason for imposing more than the statutory minimum Parliament has decreed”. We conclude that the judge took into account the extremely limited credit for the late plea in reaching his decision as to the overall effect of aggravating and mitigating factors. We are of the view that he was entitled to take that course and that a sentence of 7 years imprisonment was not and is not either wrong in principle or manifestly excessive. We would propose therefore to quash the sentence of 8 years and 26 days and (subject to what we say below) substitute for it a sentence of 7 years imprisonment for the offence committed on the 16 th February 2005. Section 11(3) Criminal Appeal Act 1968 . 12. However, as was conceded by Counsel for the appellant, it is open to this court under the powers available to it under Section 11 (3) of the Criminal Appeal Act 1968 , additionally to consider making an order for the appellant’s recall to custody under the provisions of section 116 of the 2000 Act . We now turn to consider these statutory provisions. Before doing so, we note that it would not have been open to the judge (nor is it open to us) to have ordered that the 7 years’ sentence of imprisonment should run consecutively to the period of the appellant’s administrative recall to custody for breach of the licence provisions under which he had been released from his previous concurrent sentences (see R v Lauren [2001] Ct. App. R (5) 65 and R v Cawthorn [2001] Ct. App. R. (5) 136) 13. This court has power pursuant to section 11 (3) of the Criminal Appeal Act 1968 “if it considers that the appellant should be sentenced differently for an offence for which he was dealt with by the court below to (a) quash any sentence or order which is the subject of the appeal and (b) in place of it to pass such sentence or make such order as (it) thinks appropriate for the case and as the court below had power to pass or make when dealing with him for the offence” so long as, of course “taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below” 14. Section 116 of the 2000 Act reads: (1) “This section applies to a person if (a) he has been serving a determinate sentence of imprisonment which he began serving on or after 1 st of October 1992; (b) N/A. (c) he is released under Part 11 of the Criminal Justice Act 1991 (early release of prisoners); (d) before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment (“the new offence”); and (e) whether before or after that date, he is convicted of the new offence (2) “Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be returned to prison for the whole or any part of the period which (a) begins with the date of the order: and (b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in sub – section (1) (c) above” It would seem that pursuant to these provisions the maximum permissible period of return to custody of the appellant pursuant to the provisions of section 116 would have been for a period equal in length to the period between the date of the new offence (the 16 th February 2005) and the expiry date of the sentence namely the 26 th March 2006. Section 116 of the 2000 Act and the Criminal Justice Act 2003 ( the 2003 Act ) 15. It would be of relevance to the outcome of the appeal if the sentencing judge had considered whether to apply the provisions of section 116 of the 2000 Act and had decided in his discretion not to do so. We are satisfied that this was not the case. From what we have been very properly told by the appellant’s counsel, Mr Jobling, it seems that there may have been a misapprehension as to the applicability to the case of the provisions of the 2003 Act . We are satisfied that although by reason of the provisions of Section 332 and Schedule 37 of the 2003 Act , Section 116 of the 2000 Act has been repealed, this did not and does not apply if the offence for which the defendant falls to be sentenced occurred before the 4 th of April 2005 [see the Criminal Justice Act 2003 (Commencement No8 and Transitional and Saving Provisions) Order 2005 (S.1. 2005 No 950) Schedule 2 para 29]. Consequently, as the offence for which the appellant was to be sentenced was committed on the 16 th February 2005 the provisions of Section 116 of the 2000 Act continue to apply. Section 116 return to custody 16. It is in our view open therefore to this court to order the return to custody of the appellant for such unexpired part of his previous concurrent 5 year sentences as is just and appropriate. Under the provisions of Section 116 (6) (b) of the 2000 Act , this court can direct that the period of such return to custody should “be served before and be followed by, or be served concurrently with the sentence imposed for the new offence” i.e. the 7 year sentence. In determining whether to exercise the power available under Section 116 however it is necessary for this court to have regard to the principles laid down in the case of R v Taylor (supra) and , if making an order for return to custody for a period to be served before the new sentence, make the appropriate allowance for time spent by the appellant in custody following administrative recall unless such time will in any event be credited against the sentence for the new offence(s). Principles for exercise of an order for return to custody under Section 116 17. In deciding whether to exercise the power to order a return to custody pursuant to section 116 the court is not precluded from making such an order because the appellant’s recall to custody had already occurred (see R v Sharkey supra).However, before doing so it must have regard “first to the nature and extent of any progress made by the offender since his release second, the nature and gravity of the new offence or offences and third, the totality of the new sentence and order for return.” (see R v Taylor supra) In this case, as the judge observed, whilst progress was made whilst the appellant was in custody, little progress was made whilst he was on release on licence. Furthermore, the nature of the fresh offence is entirely similar to the nature of the offences for the sentences for which the liability to a return to custody arises. Additionally, the appellant was only on licence release from the 24 th December 2004 to the 16 th February 2005 before he committed the fresh offence, in itself a serious offence entailing liability to a mandatory 7 year sentence. It seems to us that it would be in no way unjust to order the appellant to return to custody to serve first an appropriate part of the unexpired portion of the previously imposed concurrent 5 year sentences before he served the 7 year sentence for the fresh offence. That approach was not one in reality resisted in the written and oral submissions made on the appellant’s behalf. The point most clearly taken on the appellant’s behalf was that in the calculation of the appropriate period for return to custody under Section.116 account should be taken of the time spent by the appellant in prison following recall until sentence - 150 days (i.e. from 28 th February 2005 to the 28 th July 2005). To that issue we now turn. Credit for period of recall from licence 18. In the course of argument, we referred Counsel to the decisions of this court in R v Sharkey (supra), R v Stocker (2003) 2 Ct App R (s) 53 and R v Teasdale (2004) 1 Ct. App. R. (s) 6. It is clear from the latter two decisions of this court – which applied the approach of this court to this issue as adumbrated in R v Sharkey – that unless the appellant would receive credit for the 150 days previously referred to in respect of the period to be served of the 7 year sentence that he would have to serve, allowance should be made for this period in calculating the period of return to custody pursuant to Section 116 . Any such allowance would require doubling the number of days so served in the case of a short term sentence or adding a third to the number of days in the case of a long term sentence (i.e. one for 4 years or more). Both counsel agreed before us that this calculation in this case amounted to 225 days. It was agreed by counsel and we so find that unless the 150 days was to count as against the fresh 7 year sentence then it must be deducted from the number of days ordered to be served under Section 116 . 19. In the course of argument, we raised with counsel whether in fact the appellant would receive credit for the 150 days as against the 7 year sentence as for the self – same period he was on remand awaiting trial for his fresh offence. We drew attention to the words of Section67 of the Criminal Justice Act 1967 , as amended which provided that “the length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period” and that “relevant period” included (b) any period during which he was in custody – (i) by reason only of having been committed to custody by an order of the court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arise or (ii) by reason of his having been so committed and having been concurrently detained otherwise than by order of the court…..” We invited submissions as to whether because as from 28 th February 2005 until sentence on 28 th July 2005 the appellant was in custody both on remand and because he was being “concurrently detained” following his administrative recall at the behest of the Secretary of State on the recommendation of the Parole Board, the provisions of Section 67 (1A) (b) (ii) applied and so the appellant would still get credit for this period as against the fresh 7 year sentence. Neither counsel was able to assist the court on this issue but it had been and remained Mr Jobling’s submission on the appellant’s behalf that if there was any uncertainty the court “should discount the period of return to allow for it” 20. We have considered the relevant provisions. It might be said that although in one sense the appellant was both on remand for the fresh offence and being concurrently detained otherwise than by order of the court, in another sense the concurrent detention was a period of service of the original sentences imposed by the court which sentenced him on the 11 th June 2001 to five years’ imprisonment. The second of these interpretations we find was the one seemingly applied by this court in R v Stocker in a factual context which we infer from the judgement involved that appellant having been in custody for a period of time both whilst on remand for the fresh offence and concurrently following his administrative recall from licence. In the absence of any contrary authority, we accede to Mr Jobling’s submission that in arriving at our conclusion as to any order for return to custody pursuant to section 116 of the 2000 Act we should resolve any doubt as to the credit for the recall period in the appellant’s favour. We add that the ten days spent on remand in custody between arrest and recall, no doubt, will be deducted by the prison service from the seven year sentence, as required by s.67 of the Criminal Justice Act 1967 which applied to this offence, committed as it was before the 4 th April 2005, the commencement date of s.240 of the Criminal Justice Act 2003 . 21. We agree with Mr Jobling’s conclusion (as set out at paragraph 15 of his Skeleton Argument) that the maximum period of liability to be returned to custody is 1 year and 38 days (i.e. from the date of offence on the 16 th February 2005 to the sentence expiry date). We find that as against that maximum period an allowance of 225 days must in any event be made because of the 150 days the appellant was in custody following recall from licence on the 28 th February 2005 to the date of sentence on the 28 th July 2005. That means that the maximum period of return to custody under section 116 could be for 180 days (405 less 225). We have come to the conclusion that having regard to the totality of the fresh 7 year sentence and the period of the order for return and the progress we have been told that the appellant has made whilst in custody since his recall and later sentence some further modest reduction is called for from the maximum period of liability. We will substitute for the original sentence of 8 years and 26 days imprisonment an order that the appellant be returned first to custody under section 116 of the 2000 Act to serve the unexpired period of 150 days in respect of the sentences of 5 years imprisonment passed concurrently on him by the Oxford Crown court on the 11 th June 2001 and secondly, thereafter, consecutively to serve the sentence of 7 years imprisonment for the offence of possessing crack cocaine with intent to supply committed by him on the 16 th February 2005 less the 10 days during which he was in custody on remand before his recall. To that extent and in that way the appeal against sentence is allowed.

```yaml citation: '[2006] EWCA Crim 1140' date: '2006-05-17' judges: - LORD JUSTICE WALLER - HIS HONOUR JUDGE RADFORD ```

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 1516 Case No: 2011/6714/D4,2011/6719/D4 & 2011/6717/D4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2(A 2LL Date: Monday, 2 July 2012 B e f o r e : LORD JUSTICE MOSES MR JUSTICE ROYCE MR JUSTICE SINGH - - - - - - - - - - - - - - - - - - - - - R E G I N A v ROBERT FOULGER KEVIN BURGESS ANDREW BADLAND - - - - - - - - - - - - - - - - - - - - - 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 V Meads appeared on behalf of Foulger Mr A Baughan appeared on behalf of Burgess Mr C Gillespie appeared on behalf of Badland - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE ROYCE: On 3rd November 2011 in the Crown Court at Southampton, before His Honour Judge Burrell QC, the applicants were convicted of conspiracy to steal. Foulger and Burgess were sentenced to five years' imprisonment and Badland was sentenced to seven years' imprisonment. Foulger renews his application for leave to appeal against conviction and Burgess and Badland renew their applications for leave to appeal against sentence. 1. On the morning of 7th June 2010, a container load of cigarettes with a black market value of between £750,000 and £900,000 on which over £1 million worth of duty was payable was stolen from a bonded warehouse called Macintyre Scott in Southampton. The cigarettes were destined for Gibraltar and thereafter North Africa. Once the cigarettes arrived in Southampton Macintyre Scott began to make arrangements for their export. Trident Freight was tasked with organising the collection of the load. They offered the job to Best Transport who subcontracted the job to Bluefin Transport. The contact at Bluefin was the applicant Foulger. He and the applicant Badland were old friends. 2. The prosecution case was that by the afternoon of 3rd June Foulger must have obtained the transaction codes which were needed to secure the release of the load and begun the process of disseminating the information to his co-conspirators. He arranged for a legitimate collection lorry to arrive after the load had been stolen. Arrangements were made for a bogus lorry to arrive at the yard in the early hours of 7th June and to transport the cigarettes away. There were other co-accused who were acquitted and it is unnecessary to deal with the parts that they played. 3. The load was taken to the Epping area and was not seen again after that. In fact neither the lorry nor the cigarettes were ever recovered. 4. The bulk of the evidence came from the analysis of telephone data including cell site analysis and ANPR sightings. The prosecution case was that this was a well-planned high value professional theft. Foulger was the inside man. Badland was the organiser. Burgess was responsible for recruiting another man to drive. A further man supplied the lorry and two others were involved in the disposal of the lorry and the cigarettes. 5. It was Foulger's case that he had no knowledge of the conspiracy. The only knowledge that he had of the load was in the course of his employment. The case for Badland and Burgess was essentially that of innocent association. 6. On behalf of Mr Foulger, a number of different grounds are advanced. The first is that the judge should have acceded to a defence application to exclude the evidence of a witness called Julie Sargent as it is contended it was inadmissible or alternatively under section 78 of Police and Criminal Evidence Act. Julie Sargent was a civilian data analyst employed by the Hampshire police. What she had done was to produce charts and maps and a summary collating cell site data in respect of various phones. Her charts, maps and summaries enabled this material to be put before the jury in a readily understandable form. 7. The prosecution did not put her forward as an expert or seek to elicit any expert opinion from her. Miss Meads on behalf of the applicant contends that the effect of her evidence was that expected to come from an expert. However, in reality when one looks at material she was putting before the jury, it is very difficult to maintain the contention that she was being called as an expert. In his ruling at 3C the judge said this: "In my judgment, the evidence of Julie Sargent is plainly not expert opinion evidence in the sense contended for by the defence. She is an intelligence analyst, a job which no doubt has a certain expertise and skill itself as an occupation, but she is not for example, an expert communications data investigator. Her task has simply been to put the otherwise complicated, or relatively complicated, telephone data into a more user-friendly format. ... She does not purport to express an opinion of any of this data; she has simply produced by way of example a PowerPoint presentation and other graphic illustrations of the information which has already been sourced as the raw telephone data." He went on to point out that if the defence wished they could, if they suggested the material was lacking sufficient detail or misleading, call their own expert but he was told they did not intend to do so. We conclude the judge's ruling was entirely appropriate in these circumstances. 8. The second ground is that the judge intervened during the cross-examination one of the Crown's witnesses to warn the defence that if the questioning went further it could amount to an attack on the witness's company and thus could amount to an attack on character. Miss Meads contends that by reason of that interjection the jury would have concluded that the applicant was someone with a criminal record. 9. It appeared to us that the judge was intervening at that stage by way of a gentle warning to the defence that if they went too far it might indeed amount to an attack on character. We do not accept that this precautionary intervention, of which we have seen no transcript, made it obvious that the applicant was someone with an antecedent history. 10. Ground 3 concerns the presence in the jury of a police community support officer who worked from the Bitterne police station where it so happened two defendants happened to have been interviewed. The judge established that the juror had no knowledge of the investigation and knew no one connected to it either directly or directly. Two of the defendants had been interviewed at Bitterne police station as a matter of convenience as it was a quiet station. The investigating officers were not based there and the juror did not know them. This was not a case where in reality the police evidence was in dispute in so far as its credibility was concerned. 11. The judge reminded himself of the authorities of Khan [2008] EWCA Crim. 531 and Adroykoff, Green and Williamson [2008] 1 Cr.App.R 21. More recently, in Khan v United Kingdom [2012] ELR 295, the European Court considered the case of Khan and concluded that where there was a police officer who had personal knowledge of one of the police officers giving evidence in the case, and police evidence was in dispute, the juror should have been discharged from that case. That case is not this case. We consider that the enquiries made by the judge were appropriate to establish that the police support officer was properly impartial and we do not accept that he was wrong in failing to discharge that juror or indeed the whole of the jury. 12. Grounds 4 and 5 concern the allegation that the summing-up was biased in favour of the prosecution and that during the applicant's evidence the judge had by his demeanour and what he said demonstrated bias against the applicant. 13. In refusing leave on these grounds, the single judge said this: "There is no basis for the allegation that the summing-up of your case was not fairly balanced and that it sought to undermine your case. The judge told the jury to 'embrace a fair and careful and reasoned approach to the evidence'. [He] reminded the jury of the cross-examination by your counsel of prosecution witnesses. [He] reminded the jury of your evidence. You do not suggest that he failed to remind the jury of any material matters. I do not accept that the summing-up was unbalanced as you suggest. As for the complaint about the judge's words and general demeanour during the course of your evidence, you accept that further to the issue being raised on your behalf the judge directed the jury that if by words or body language he gave an impression of his view it should be ignored. There is no reason to think that the jury had disregarded this direction." We agree. The fact is that the summing-up reflected what was a very strong prosecution case. We do not consider that it was unbalanced or biased and these grounds looked at singly or collectively are not sufficient to cause us to give leave or to allow any appeal against conviction. This conviction was safe. This renewed application must be refused. 14. We turn to the renewed applications on behalf of Badland and Burgess. Badland is aged 31. He has a 11 previous court appearances for 33 offences between 1998 and 2009. Of significance in his case are convictions for conspiracy and theft in 2001 when he was given 21 months in a young offender institution. That involved him and others using a lorry cab and removing a fully loaded trailer with goods to the value of about £30,000 from an industrial estate. In 2004 he received a three year sentence for theft. He and others had stolen a lorry from Felixstowe Docks. They were pursued by the police. The lorry had a load worth £84,000. In 2009 he received a sentence of 18 months for handling. That involved a container holding 8 million cigarettes of considerable value. Before us, it has been made clear that there was a basis of plea in that case and that basis of plea was that he did not know there were cigarettes in the lorry. He believed the load to consist of noodles. 15. So far as Burgess is concerned, he is aged 52. He had a previous court appearance in 2002 which arose from an offence committed with Badland when they stole the fully loaded lorry from the industrial estate. He received a sentence of 15 months and three months concurrent for a separate forgery offence. It is clear that his previous record is substantially less serious than that of Badland. 16. In sentencing them, the judge said he took account of the Sentencing Guideline Council guidelines for theft. He pointed to the following aggravating factors: 1. The planning of the offence. 2. The deliberate targeting of the bonded warehouse load and the bonded warehouse itself. 3. The high level of gain and high value of property. 4. The impact on the company Macintyre Scott and its Managing Director and in the case of Foulger the breach of trust. In the case of Badland he said he was clearly the ringleader, the linchpin, the organiser and the fixer. He stood to make a lot of money. Neither the cigarettes nor the lorry trailer were recovered. He was an experienced and professional criminal who had done this sort of thing before. He said there was in reality no mitigation and concluded that seven years, the maximum sentence, was the correct one. 17. In relation to Burgess, he said he was Badland's right-hand man and close associate who was there to make sure everything went to plan. He was heavily involved in the organisation. His previous conviction was with Badland. He also took into account the fact that he had significant family responsibilities and that he was likely to have been under the influence of Badland. 18. On behalf of Mr Badland, Mr Gillespie accepts that this offence fell in the top level of the Sentencing Guideline Council guidelines, which has a starting point of three years and a bracket of two to six years for a man of good character after trial where the value of goods stolen is £125,000 or more. Mr Gillespie drew the court's attention to Bright [2008] 2 Cr.App.R (S) 102 where the Lord Chief Justice indicated that maximum sentences should not necessarily be reserved for cases where it was possible to conceive of worse cases. Maximum sentences should be reserved for cases of the utmost gravity. Mr Gillespie maintains that this was not such a case. He does point to the possibility of conceiving of cases of greater value, with vulnerable victims over a longer period of time and with a greater impact, and so it is possible to conceive of more serious cases. However, here the judge was dealing with a professional criminal who took little or no notice of previous sentences for similar offences. He appears determined to carry on with these offences no matter what the courts may do. It would be wrong for defendants who continue to commit this sort of serious offence to think that they will not receive the maximum sentence simply because it is possible to envisage cases with more serious facts. In his case the renewed application is refused. In relation to Mr Burgess, Mr Baughan submits that the judge failed to take sufficient account of his limited, albeit important role, his comparative lack of previous convictions compared with Badland and all other relevant matters. He points to his age of 53, the fact that he has partial responsibility for a nine year old daughter, his lack of a lavish lifestyle and the fact that he has been in paid work for 10 years and that he was not the ringleader. In our judgment, there is some force in his submissions. We conclude, looking at the totality of the material before us, that the proper sentence in his case is one of four years and six months. We allow his application. We give him leave and the sentence is reduced to four-and-a-half years. To that extent his appeal succeeds. 19. MR BAUGHAN: In the case of Burgess, as a result of that, may I ask for a representation order up to this point and to include today? 20. LORD JUSTICE MOSES: Yes.

```yaml citation: '[2012] EWCA Crim 1516' date: '2012-07-02' judges: - LORD JUSTICE MOSES - MR JUSTICE ROYCE - MR JUSTICE SINGH ```

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

[2019] EWCA Crim 916 No: 201605604 B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 28 February 2019 B e f o r e : LADY JUSTICE HALLETT DBE Vice President of the Court of Appeal Criminal Division MR JUSTICE SWEENEY MRS JUSTICE CHEEMA-GRUBB DBE R E G I N A v GEORGINA SARAH ANNE LOUISE CHALLEN Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street, London EC4A 2DY, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court) 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. Miss C Wade QC and Ms L Wibberley appeared on behalf of the Appellant Ms C Carberry QC and Mr P Grieve-Smith appeared on behalf of the Crown J U D G M E N T (Draft for approval) LADY JUSTICE HALLETT: This is an extempore judgment because we are conscious of the need to give the result of this appeal and our reasons as soon as possible. The judgment will be perfected at a later date. Background On 14 August 2010 the appellant killed her husband of 31 years with 20 or more blows from a hammer. She was charged with murder. Her plea of guilty to manslaughter on the grounds of diminished responsibility was not accepted. The principal issue at her trial was the issue of diminished responsibility and the defence did not argue provocation. Nonetheless, the trial judge, His Honour Judge Critchlow, left to the jury both the partial defences of provocation and diminished responsibility. On 23 June 2011 the appellant was convicted of murder. On 26 June 2011 the judge sentenced her to imprisonment for life with a minimum term of 22 years. On 24 November 2011 the court reduced the minimum term from 22 years to 18 years. She appeals against conviction on the basis of fresh evidence, namely the diagnosis by a consultant forensic, psychiatrist that she was suffering from two previously undiagnosed disorders at the time of the killing and fresh evidence as to the alleged coercive control by the victim. The evidence includes a report on coercive control from Professor Evan Stark, a sociologist and forensic social worker dated 19 June 2018; two psychiatric reports from Dr Gwen Adshead dated 16 May 2016 and 14 October 2017; two addendum psychiatric reports from Dr Exworthy, who gave evidence at the trial, dated 19 August 2016 and 26 October 2017, and a report on developments and understanding of coercive control from Professor Marianne Hester, dated 7 January 2019. The Crown relies upon a post-conviction report from the psychiatrist they called at trial, Dr Paul Gilluley dated 1 March 2017. We heard from him, Professor Stark, Dr Adshead and Dr Exworthy de bene esse . The facts The appellant a woman of previous good character, was 57 at the time of the trial. She met Richard Challen when she was 15 and he was 22. They married when she was 25. They had two sons. Richard Challen was unfaithful on several occasions and this caused the appellant considerable distress. She sought medical help over the years and in 2009 was referred to a psychiatrist. He noted excessive alcohol use, marital problems and other "psychosexual stresses", but concluded that there was no evidence of a disorder. In the autumn of 2009 the appellant left Mr Challen and moved into a property of her own nearby that she had bought using capital from an inheritance. She began divorce proceedings. Mr Challen then began to socialize with people he had met through a dating agency. The appellant found it difficult to cope with the separation. Convinced that her husband was having an ‘affair’, she asked a neighbour to spy on him. In 2010 she found out how to access text messages and voicemails remotely and began to access his emails and voicemail messages. She looked at a dating agency website used by the deceased and looked up the names of women with whom he had contact. She checked his Facebook page. She became obsessive about trying to find out what the deceased was doing and with whom. In June 2010 he agreed to her request for a reconciliation but on condition that the divorce went through and she entered into a "post-nuptial agreement" on terms that were not favourable to the appellant. The appellant was advised by a solicitor to be cautious about entering into the agreement. Nonetheless, she agreed to her husband's terms. It was then decided that the divorce would be discontinued and on 9 August 2010 a decree nisi that she had obtained was rescinded at her request. The appellant and the deceased decided to rent out the family home and to go to Australia for six months. At this time they were still living apart and she continued to have her suspicions about the deceased's friendships with other women. She also believed he was being unfair in relation to the financial arrangements. In the week before the killing, the appellant viewed the deceased's Facebook page several times, and in particular, she saw an entry for a woman whom the deceased had arranged to meet socially and with others on Sunday, 15 August. On Saturday, 14 August the appellant took a hammer with her and she went to the former matrimonial home to help her husband clear out the house and garage. At about 3.30 pm she went out to buy food for lunch. In her absence the deceased telephoned a woman and left a voicemail message. When she returned, the appellant noticed that the phone had been moved. She called the last dialled number and realised the deceased had called another woman. Knowing he had made arrangements to meet her, the appellant asked the deceased if she could see him the following day. He replied, "Don't question me." She made them something to eat. As he was eating, she took the hammer from her handbag and repeatedly hit him over the head with severe blows. He must have tried unsuccessfully to defend himself because there were nine sites of injuries to his hand and arms consistent with defensive wounds. She then covered his body with blankets and left a note which said, "I love you, Sally", changed her clothes and went home. She typed another note, which she took back to the house and left in the kitchen. She spent the evening in her own home, she saw one of her sons, who did not notice anything unusual, and in the following morning she gave him a lift to work. Shortly before midday, she telephoned her cousin and told her she was calling from the car park at Beachy Head. Her cousin immediately called the police and a chaplain. As the appellant walked towards the cliff edge, she was approached by the chaplain, Mr Hardy. She told him that she had killed her husband and said, "If I cannot have him, no-one can." Detective Sergeant Rosser was the police negotiator present at Beachy Head. The appellant told him the deceased had told her to treat his infidelity like a bereavement and ‘get over it’. She said she did not like her new property because the rooms were small and there were dogs barking. She said she had sometimes gone back to the family home and set traps, like putting tape on doors, and while in the house she had listened to voicemail messages and accessed the deceased's emails. She said she realised the appellant was intending to meet another woman and that had caused her to flip and carry out a frenzied attack. The appellant felt that she had been treated appallingly badly by the deceased over a number of years and it was that behaviour which had culminated in the recent events. She said, "I should be put in a padded cell somewhere, because I have gone completely off my rocker. I am just so very depressed." After about four hours she agreed to leave the cliff edge and was arrested. In her vehicle parked at Beachy Head, police found a copy of the note left in the deceased's kitchen. It read: "Richard said he would take me back if I signed a post-nuptial agreement. I said I would and we both saw solicitors yesterday. I then found out he was seeing someone and sleeping with them and had no intention of taking me back. It was all a game so he could get everything. He was going to get me to sign and then issue divorce proceedings. I can't live without him. He said it would take time, but he felt the same. Now I find he is seeing women and sleeping with them. He did this in order to get his own back on me. All those prostitutes and other women. How could he? Please look after David, James and Peppy. I'm sorry but I cannot live without Richard. All my love, Sally." In her interview with the police the appellant gave an extraordinarily full and sometimes rambling account of her marriage and the killing. She stated the marriage had been generally happy, but, "Everything had been on [the deceased's] terms." She performed all the household tasks and did her best to please him, but he was always critical of her. She described her husband's infidelity and association with prostitutes and the distress it caused her. Having decided to divorce him, she then realised she could not live without him and was prepared to agree to his terms for reconciliation even if they were unfair. She had believed he was genuine in his wish for a reconciliation, and therefore, on the day of the killing, when she realised he was still seeing other women, she ‘flipped’. She hit the deceased with the hammer. He was motionless and so she covered him with curtains. She thought he was still breathing and so put tea towel in his mouth to spare him further suffering, she said. She put a cushion under his head, so he would be comfortable. She did not want anyone else to have him if she could not. The trial The prosecution case, as advanced by Ms Carberry QC was that the appellant was a jealous woman, whose behaviour in the period leading up to killing had become increasingly obsessive. Her actions were said to be premeditated, as evidenced by her deliberately taking a hammer to the house and about which she had lied to the police in early police interviews. Dr Paul Gilluley, consultant forensic psychiatrist, was of the opinion that the appellant had not been suffering from any mental illness or abnormality of mind at any time before she killed the deceased. He accepted that she fulfilled the criteria for alcohol dependency syndrome and that had affected her mental health, but not to the extent of causing mental illness or a disorder or depression. He stated that those suffering a depressive disorder were unable to switch it on or off, and he noted that there was no evidence that she had been unable to cope at work and that her son David who lived with her had not noticed any disorder. He accepted that she may have had long-term, low self-esteem and difficulties in her marriage, that she had had suicidal thoughts at times and that she had feelings of jealousy, anger and resentment. Such feelings and feelings of being unable to cope could lead to depression. The defence case was based on the evidence of Dr Exworthy, as complemented by evidence from the appellant herself, her two sons, her cousin and friends of the family. The defence argued that the appellant was suffering from a depressive disorder with persisting depressive symptoms in the three to four weeks before she killed the deceased and that she suffered a depressive episode of moderate severity, which in Dr Exworthys' opinion, amounted to an abnormality of mind. The appellant described in her evidence to the jury the build-up to the killing on 14 August. She said she began to suspect the deceased of being unfaithful in 2004. She became very distressed and consulted her doctor in 2004 and 2007. She was referred for counselling. She was depressed and tearful and waking early in the morning. She said she had not taken any medication because she did not wish to become addicted. In February and March 2008 she was prescribed anti-depressant medication, but by September decided not to attend any counselling sessions because they would be no use. In August 2009 she again went to her general practitioner and was signed off work for a month with stress-related problems. In September she was involved in a grievance at her work place. She went to see Dr Valmana (As heard) a psychiatrist. By the end of October 2009, she said her mood was fine, her sleep had improved. She denied any suicidal thoughts, and was discharged from Dr Valmana's care. She accepted that at the time of the killing she had a responsible job, presented at work in a well-dressed way, but insisted that in the summer of 2010, after nine months of living apart from the deceased, she felt depressed and flat. She said she did not visit her GP because she could not get an appointment. David and James Challen told the jury they thought their father had behaved badly towards the appellant. They described her doing everything for him; he controlled her and decided what they would do as a couple. She had not been a happy woman for about ten years. She became particularly distressed when she discovered that the deceased had been visiting a brothel. She often referred to it and became very suspicious of the deceased and his behaviour. She frequently accused him of infidelity. The deceased refused to engage with the appellant and told her ‘to get over it’ and not question him about it. They knew that the appellant examined Mr Challen's text messages and emails. The deceased himself questioned whether the appellant was mentally unstable, and she began to question herself as to whether or not she was going insane. Sarah Noble, a friend of the appellant's, was aware that the appellant was stressed and worried about her marriage. She described the appellant as very hyper and always busy, spending money on items she did not need. She thought the appellant was controlled by the deceased. She spoke to the appellant in the week of 8 August 2010 and the appellant seemed very happy that she was getting back together with the deceased. The appellant had previously emailed her about the conditions imposed by Mr Challen for the reconciliation. The appellant told her that she would rather be with the deceased than without him. In a telephone call in the week of 8 August 2010 the appellant told her that the deceased had agreed to stop seeing other women if they got back together. Suzanne Anderson, the appellant's cousin, believed that the deceased had pulled the strings in their marriage and the appellant had ‘danced’. She too was aware of the appellant's suspicions of the deceased's infidelity. In 2007/2008 the appellant had found receipts for meals for two people in his pockets, and she described the appellant as being lonely and unhappy after leaving the deceased in 2009. Jennifer Turney, a girlfriend of one of the appellant's sons, was close to the appellant, and the appellant told her about the deceased's visit to a brothel and her concerns about his fidelity. The appellant told her that she had low self-esteem and she did not get any reassurance from the deceased. In July 2010 the appellant told her that she was getting back together with the deceased but felt uneasy at the prospect. She saw the appellant on 9 August and it appeared that she had lost a lot of weight and looked drawn. Inspectors Smith, Pellatt and Williams worked with the appellant at the Police Federation. Inspector Smith found her to be trustworthy and reliable, and Inspector Pellatt thought that although there had been problems in 2009, she was back to her old self by the summer of 2010. The grounds of appeal Ms Wade QC, who did not appear in the court below, advanced two grounds of appeal. 1. The fresh evidence on coercive control and the fresh psychiatrist evidence support the proposition that at the time of killing the appellant was suffering from an abnormality of mind. Had expert evidence on coercive control been available at the time of the trial, the jury may have reached a different conclusion on diminished responsibility. 2. The fresh evidence also goes to the issue of provocation in that it helps establish the appellant was provoked to kill the deceased because of his controlling and coercive behaviour. First, we must consider in summary form the issue of coercive control and evidence from the experts relied on by Ms Wade. She invited us to consider the extent to which the understanding of what has been labelled "coercive control" has improved over the years, so much so that Parliament enacted s.76 of the Serious Crime Act 2015 to make it a criminal offence to exercise coercive control over one's partner. S.76 criminalises a pattern of abusive behaviour, the individual elements of which are not necessarily unlawful in themselves. This is designed better to protect victims of domestic abuse. It was Ms Wade's contention, relying on material from Professor Stark and from Professor Hester, that at the time of the appellant's trial in 2011 there was insufficient understanding among criminal justice practitioners and psychiatrists of coercive control as a form of domestic abuse, in which case the jury may not have been aware of the extent of the abuse suffered by the appellant and the psychological impact on her of years of intimidation, isolation, control and occasional violence. Ms Wade accepted that the courts have recognised the concept of battered person syndrome, but that syndrome focuses on the psychological impact of repeated physical abuse, whereas coercive control focuses on systemic coercion, degradation and control. The lack of knowledge about the theory of coercive control at the time of the appellant's trial, meant that the partial defence of diminished responsibility was not put as fully as it could have been and the defence of provocation was not advanced at all by counsel then representing the appellant. The appellant's actions were not, therefore, put into their proper context. We should emphasise that in advancing these submissions Ms Wade was in no way critical of defence counsel at trial. He could only act on the material before him. Professor Stark explained in his report and to us yesterday the theory of coercive control. In summary, he stated: "In coercive control, abusers deploy a broad range of non-consensual, non-reciprocal tactics, over an extended period to subjugate or dominate a partner, rather than merely to hurt them physically. Compliance is achieved by making victims afraid and denying basic rights, resources and liberties without which they are not able to effectively refuse, resist or escape demands that militate against their interests." In cases of coercive control the risk that one or both parties will be severely or fatally injured is a function of a victim's level of entrapment, the degree to which due to fear, violence and/or the extent of control, she has been deprived of or otherwise lacks the non-violent means effectively to resist, refuse, defend against and/or escape from demands, attacks, betrayals. In these circumstances, while the victim's vulnerability weighs the scale against her survival, the sense of having no way out can also fuel a powerful rage against the perceived source of her containment. Ms Wade sought to persuade us to accept Professor Stark's evidence as fresh evidence within the meaning of s.23(2) of the Criminal Appeal Act 1968 . She described it as expert evidence because Professor Stark is a widely published academic sociologist, has expertise in the field of forensic social work and is an acknowledged authority on the issue of coercive control, about which he has written since 2007. He has been accepted as an expert witness on the theory of coercive control in other jurisdictions. She described it as fresh evidence because it dispels the proposition that the concept of coercive control was within common knowledge at the time of the trial. The cross-Government working definition of domestic abuse was only changed to accommodate coercive control in 2012. Ms Wade reminded us of various decisions of this court in which it has been accepted that there is a need for expert evidence in cases where there is a background of domestic violence and such evidence meets the criteria for admissibility as expert testimony, as set out in R v Turner (1975) 60 Cr App R 834 , R v Hobson [1998] 1 Cr App R 31 , R v Muscroft [2001] EWCA Crim 604 , R v Smith [2002] EWCA Crim 2671 , R V Thornton (No.2) 1996 1 WLR 1174 . Dr Adshead specialises in working with violent women and those who suffer from personality disorders. She was instructed post conviction. Dr Adshead based her opinion on prison inmate records which reveal that in custody the appellant was treated for depression and suffered at least two manic episodes in 2014 and 2016, for which she was treated with anti-psychotic medication; Dr Adshead's own clinical assessment of the appellant; the transcript of the appellant's police interviews, which disclosed a pressure of speech; the appellant's GP records; witness statements, and in particular, statements from Sarah Noble who had suggested in 2009 that the appellant may be bipolar; and from Michael Rowlands and John Cowdy. She also relied upon the results of objective personality assessments conducted by a psychologist. John Cowdy, a family friend, described the deceased as controlling of the appellant, and Mr Rowlands, who acted for the appellant in her proposed divorce, described her as "Really hyper, talking very quickly and almost unable to keep still". Her instructions to him were erratic. In Dr Adshead's opinion the appellant suffers and suffered from a personality disorder of moderate clinical severity and has symptoms of a severe clinical mood disorder, most probably bipolar affective disorder. The psychotic episodes the appellant experienced in prison and that lasted several weeks on both occasions support the view that the appellant suffers and was suffering at the time of the killing from a severe clinical mood disorder. Assuming that Dr Adshead's diagnosis is correct, coercive control is then said to be relevant because of the interplay between the disorders and the effect of coercive control. The interplay means that the more severe symptoms of a mood disorder were masked during the time that the appellant and the deceased lived together. Only since the appellant has lived apart from the coercive control has the true nature and etiology of her personality disorder and mood disorder could be diagnosed. Dr Exworthy agrees. Unlike Dr Adshead, at the time of his original assessment of the appellant, Dr Exworthy did not have the appellant's prison inmate records or the statements given to her. of Sarah Noble, William Noble, John Cowdy or Michael Rowlands. Although he noted the extensive complaints which the appellant and others had made of coercion and control by the deceased, he was not familiar with the concept at the time. For the purposes of the trial he focused on the issue of depression. Originally, he was of the view that if the appellant had taken a hammer to the house the appellant could not avail herself of the partial defence of provocation. Accordingly, the only possible partial defence that he supported was the one of diminished responsibility on the basis that the depression had constituted an abnormality of mind. In the light of what he has since learned as to coercive control and in the light of Dr Adshead's diagnosis with which he agrees, he is now of the view that both partial defences were available to the appellant. He suggested the jury may not have understood the impact upon the appellant of the disorders from which it is now recognised she suffered and in the context of coercive control. We also have a statement from Professor Hester. We did not here from her de bene esse , but she sets out the development of understanding of coercive control since the trial took place in 2011. Relying on those reports and the evidence called before us, Ms Wade invited us to find that the issue of coercive control should have been explored at the trial and the appellant was suffered from the additional disorders diagnosed by Dr Adshead.at the time of the killing Had these issues been explored appropriately, issues such as the appellant's claim that she was anally raped by the deceased in 1998 as a punishment, the deceased's visits to prostitutes, his intimidation of her, his financial control of her and his attempts to isolate her would have been put before the jury in far greater detail. These issues were either not explored at all or were presented to the jury in terms of unhappiness and uncertainty, as opposed to abuse and entrapment. If we receive the fresh evidence, Ms Wade maintained that it establishes that the appellant suffered from a personality disorder with features of dependency which meant that she was vulnerable to being controlled by the deceased because she could not exist independently of him. She also suffered from a mood disorder that fluctuated, depending on the way the deceased treated her. This would have affected the gravity of the deceased's provocative behaviour to the appellant and it may have affected the jury's approach. This evidence, it is said, would have provided an alternative narrative from that offered by Ms Carberry of an obsessively jealous woman who killed her husband to prevent any other woman having him. Prosecution Response On behalf of the Crown Ms Carberry maintained that the reports do not individually or together provide additional support which amounts to fresh evidence that the applicant was suffering from an abnormality of mind or was provoked within the meaning of the Homicide Act at the time. She called this appeal an attempt to reopen matters that were comprehensively placed before the jury by way of detailed, factual and compendious expert evidence. She reminded us that the appellant's full, relevant medical and social history were placed before the jury at the trial. This included: i. the fact that the appellant regularly sought help from her GP when she thought she needed it but made no visits to her GP in the ten months leading up to the killing. ii. Dr Valmana's assessment of her in 2009 was that although she may have been drinking to excess, she was not suffering from a mood disorder or any other psychiatric disorder. iii. She was assessed by a psychiatric nurse shortly after her arrest and was not found to be suffering from any mental health issues. iv. Evidence of her demeanour and behaviour in the days and weeks leading up to the killing came from sources close to her. This included her two sons, one son's girlfriend, her neighbour, her closest friend and work colleagues, who spoke about her excellent attendance at work and her high level of competence. She was socially active. She went to the cinema, she visited Wisley Gardens and she went on holiday. v. Detailed accounts about the deceased's behaviour towards the appellant were put before the jury. In relation to Dr Adshead's new diagnosis, Ms Carberry placed considerable emphasis on the fact that Dr Adshead did not see the appellant until five years after the killing and then saw her only once. She invited us to prefer the opinion of Dr Gilluley who saw the appellant much nearer the time and who told us yesterday that he considered at that stage whether the appellant might be suffering from what he called battered woman syndrome or post-traumatic stress disorder but concluded that she did not. Had the appellant been suffering from a personality disorder, as Dr Adshead has opined, he would have expected it to have affected at least some of her relationships outside the home and to have affected her functioning at work and socially. Yet, he noted she managed to bring up her children, hold down a job and look after her parents and her in-laws, all of which suggested to Dr Gilluley that she was functioning within normal limits. Ms Carberry conceded that Dr Gilluley had accepted that the appellant may have personality traits but invited us to note that in his view they were within normal limits and did not reach the level of a disorder. Further, she asked us to bear very much in mind that Dr Gilluley, who saw the appellant, very close to the killing, had seen no evidence to suggest a diagnosis of bipolar disorder. Dr Gilluley relied in part on Dr Valmana's assessment and on the fact that, in his opinion, the manic episodes in custody may have been triggered by stress and/or medication. He accepted that there were stresses in her life and, before us, he accepted for the first time that the appellant was abused, but this is far from saying there was evidence of a mood disorder or other major psychiatric disorder. Given the extent of Dr Gilluley's consideration and his expertise, Ms Carberry invited us to find that his opinion was preferable to that of Dr Adshead, and we should reject the fresh evidence put before us. Furthermore, she reminded us that the defence at trial was diminished responsibility. Very experienced counsel did not pursue and advance any arguments on the issue of provocation, for what Ms Carberry insisted was good reason. The appellant had admitted taking the fatal weapon, a hammer, to the scene of the killing. She had become suspicious through listening to his messages, and internet research that he was in contact with other women. The clear inference which Ms Carberry invited the jury and us to draw was that there was a degree of premeditation in her actions, and this was reinforced by her admission that on an earlier occasion she had entered the house at night with a hammer to check on her husband. Ms Carberry also reminded the court that the appellant had told the police she had killed her husband in anger and that if she could not have him then no-one could. Conclusions In deciding whether to receive the evidence from Professor Stark and Doctors Adshead and Exworthy, pursuant to s.23 of the Criminal Appeal Act, we must consider whether it is in the interests of justice to do so. We must have particular regard to: (a) whether the evidence appears to the court to be capable of belief; (b) whether it appears to the court 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 these proceedings. As this court has observed frequently, any available defences should be advanced at trial, and if evidence, including medical evidence, is available to support a defence it should be deployed at trial. As a general rule, it is not open to a defendant to run one defence at trial and when unsuccessful, to try to run an alternative defence on appeal, relying on evidence that could have been available at trial. This court has set its face against what has been called expert shopping. Nor is it open to an appellant to develop and sometimes embellish their account to provide material upon which a fresh expert can base a new report and diagnosis. Thus, the hurdle for Ms Wade is a high one in persuading us that the conviction is unsafe on the basis of the fresh evidence. She advanced the appeal principally on the ground that evidence of the theory of coercive control is now available and if adduced at trial would have assisted the appellant significantly in advancing her defence. However, it is important to remember that coercive control as such is not a defence to murder. The only partial defences open to the appellant were provocation and diminished responsibility, and coercive control is only relevant in the context of those two defences. We emphasise that we were not persuaded that had it stood alone the general theory of coercive control on the facts as presented to us would have afforded the appellant a ground of appeal. However, it did not stand alone. We have focused on Dr Adshead's post-conviction diagnosis that the appellant suffers from borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, and suffered from those disorders at the time of the killing. If that is correct, it is in that context that the theory of coercive control may be relevant. We considered, therefore, the circumstances in which Dr Adshead was instructed so as to determine whether this was simply an exercise in expert shopping. We then considered the evidential basis of Dr Adshead's opinion. First, we accept that Dr Adshead was consulted because of genuine changes in the appellant's condition in prison, namely the manic episodes. Coupled with the history of depression, the episode suggested to the appellant's solicitor a diagnosis of bipolar affective disorder. This was confirmed later by Dr Adshead. It is possible that the manic episodes were triggered by the stress and incarceration and the medication for depression, as Dr Gilluley believes, but in Dr Adshead's opinion the timeline suggests otherwise. If her diagnosis of the two disorders is correct, this was missed by the psychiatrist at trial and there is a reasonable explanation for not adducing the evidence. Second, we accept that the evidence is credible and would have been admissible in the proceedings. There is a body of objective contemporaneous material that arguably supports Dr Adshead's diagnosis, albeit she made it several years after the killing. Some of that material was before the jury, but its potential relevance was not addressed. We give some examples. Mrs Noble was so concerned about the appellant's erratic behaviour in 2009 that she thought the appellant may be bipolar. This was recorded by the GP in the appellant's notes at the time. The appellant had problems at work in 2009 and was signed off for work for a month that year suffering from stress. She was prescribed medication for clinical depression, and she was referred to a psychiatrist. The prosecution may well argue that she had recovered by 2010 but there is clear evidence of abnormal behaviour in the build up to the killing, in particular, the obsessive stalking of the deceased and to her response in 2010 to the reconciliation proposal. One minute she was euphoric, then she was back to what Dr Adshead thought was almost paranoid jealousy. This was all noticed, at the time, by others. Dr Adshead's diagnosis is not, therefore, based on a new account from the appellant. Dr Adshead also gives an opinion on how, if the appellant was in an abusive and controlling relationship, these disorders may be relevant to both partial defences. Again, there are sufficient independent and contemporaneous references to the possibility of the appellant's having been controlled by the deceased to support the proposition that she was in an abusive relationship. It is now conceded by Dr Gilluley that she was. There may be good arguments against the proposition that the abusive relationship amounted to coercive control (and we can assure Ms Carberry we have given them very careful consideration) but in our view, these are not issues for us to determine. We express no view on whether the appellant was the victim of coercive control and no view, if she was a victim, on the extent to which it impacted upon her ability to exercise self-control or her responsibility for her actions. However, because expert evidence was not available to defence counsel at trial, neither the possibility that she was suffering from these two disorders, nor the issue of the impact upon her of the abusive relationship were explored at trial in any detail. The issue of provocation was not advanced at all. We have been persuaded, therefore, that the unusual circumstances of this case, and we emphasise they are unusual, we should receive the fresh evidence of Dr Adshead. We intend no discourtesy to Professor Stark in concluding that shall not receive his evidence. As it seems to us, the relevance of the coercive control theory, where a defendant suffers from a mental disorder, is well within Dr Adshead's competence and expertise. We decline to receive Dr Exworthy's evidence because it did not, in our judgment, advance the appeal significantly or at all. Having received Dr Adshead's opinion, therefore, we are satisfied that it does undermine the safety of the conviction. We shall quash that conviction. We have considered the representations made to us as to whether we should substitute a verdict of manslaughter or order a retrial. We have concluded that the only proper option for us, given the issues are not for us to determine, is to order a retrial. We shall say no more because we do not wish to prejudice that retrial. The Presiding Judges of South Eastern Circuit will decide on the venue and the judge, because his Honour Judge Critchlow has now retired. We order a retrial on the murder count. We direct that a fresh indictment will be served, and the prosecutor must serve a draft indictment on the Crown court officer not more than 28 days after our order. We direct the appellant be re-arraigned on the fresh indictment within two months. Given that we have decided to order a retrial, Ms Wade Ms Carberry, we should welcome your submissions on reporting restrictions. We are acutely conscious of the enormous interest in this case and the reporting that has already taken place. Normally, of course, we would impose rigorous reporting restrictions until the conclusion of the retrial. We would welcome your submissions on what we would should order here. MS WADE: My Lady, I need to consult those who instruct me before I make submissions on that matter. I am just a bit concerned -- we were asked about whether or not we had representations on a retrial yesterday. My understanding was that we would be able to make representations today. All we did was say that we would be obviously opposing any idea of a retrial. We have not actually made any representations about a retrial. LADY JUSTICE HALLETT: If you wish to make them, we will reconsider. MS WADE: My Lady, in our submission any retrial of this matter will not be in the interests of just. This appellant has served nine years, almost ten years -- ten years this June in custody since this offence was committed. She is not a danger to anyone. She has been an exemplary prisoner throughout her time in custody. She has been on enhanced status since November 2010. My Lady, given the shift in evidence from Dr Gilluley, who now states that -- or concedes that this was an abusive relationship in which the appellant found herself, in which the appellant was effectively entrapped, there is a considerable change, we would say, from the evidence at trial. The quality of the evidence which has been received by the court from Dr Adshead militates, in our submission, against a retrial, and finally, any retrial would not in our submission be in the public interest. This is a case where all of the bereaved and the deceased's family are not in favour. There is no pressing for a retrial in this matter. It will be expensive. It will now be some further time until this appellant's retrial. May I now take instructions from my instructing solicitor. (Pause). Subject to my submissions on a retrial, we would not want reporting restrictions imposed in this case. Everything is already out there, and they would be otiose in the circumstances. LADY JUSTICE HALLETT: We should say, Ms Wade, that we had understood that you had made your submissions but we have heard them in full, and in fact, they are all submissions that we assumed would be made and we had taken into account, and we are still minded to order a retrial. Mr Carberry, where are you on the question of reporting restrictions? MS CARBERRY: My Lady, there has been considerable press interest in this case since leave to appeal was granted last year. We would urge the court to impose strenuous reporting conditions to remain in place until the conclusion of the retrial so as not to prejudice any outcome of that case. LADY JUSTICE HALLETT: The reporting restrictions, as you will appreciate, relate to the judgment. MS CARBERRY: Yes, I do. LADY JUSTICE HALLETT: We did wonder, just giving those who wish to report this matter a little more than: "The conviction was quashed" about ordering as follows: "The Court of Appeal heard that in the opinion of consultant forensic psychiatrist the appellant was suffering from two mental disorders at the time of the killing. This evidence was not available at trial. The court quashed the conviction and ordered a retrial." Would you be content with that? MS CARBERRY: My Lady, yes. LADY JUSTICE HALLETT: Do you want me to read it again or are you happy? (Pause). Ms Wade? MS WADE: I would ask your Ladyship to read it again. LADY JUSTICE HALLETT: "The Court of Appeal heard that in the opinion of a consultant forensic psychiatrist the appellant was suffering from two mental disorders at the time of the killing." The orders can be specified, if necessary. "This evidence was not available at trial. The court quashed the conviction and ordered a retrial." Has everyone got it? MS HARRISON: My Lady, it is Sian Harrison from the Press Association. I would, obviously, like to point out there has been at that lot of contemporaneous reporting. LADY JUSTICE HALLETT: I know. MS HARRISON: And there has, obviously, more detail than that. LADY JUSTICE HALLETT: The idea is that the contents of our judgment do not prejudice the retrial. The reporting restrictions apply to the judgment. MS HARRISON: Thank you. LADY JUSTICE HALLETT: Is there anything else, Ms Wade? MS WADE: No, thank you, my Lady. I am requested to ask for bail at the moment, but I am not sure that the court is in a position to deal with that matter now. My understanding is there will have to be some reports. LADY JUSTICE HALLETT: No, but what I shall do is try to impress upon the Presiding Judges of the South Eastern Circuit that this case now dates back to the killing in 2010, trial in 2011, and they should try and get the retrial on as soon as possible. MS WADE: Thank you. LADY JUSTICE HALLETT: Is there anything else that we need to deal with? 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 916' date: '2019-02-28' judges: - LADY JUSTICE HALLETT 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: [2011] EWCA Crim 1 Case No: 200906061 D4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Crown Court at Harrow before HHJ Dangor on 19th October 2009 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/01/2011 Before : LORD JUSTICE PITCHFORD MR JUSTICE SWEENEY and MRS JUSTICE SLADE DBE - - - - - - - - - - - - - - - - - - - - - Between : ALAN SOLOMONS Appellant - and - REGINA Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr B Reece (instructed by Sternberg Reed ) for the Appellant Mr S Brady (instructed by Harrow Borough Unit CPS ) for the Respondent Hearing date: 29 October 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pitchford : 1. The anonymity of the alleged victims is protected by section 1 Sexual Offences Act (Amendment) 1992. It is an offence to publish the name and address of the victim or any matter which might lead to the identification of the victim of any sexual offence listed in section 2 of the Act. 2. The appellant is aged 61. In October 2009 he faced trial at Harrow Crown Court before HHJ Dangor and a jury upon an indictment containing 5 counts alleging historical sexual offences as follows: Count 1: Indecent assault upon LA, a girl under the age of 16 years contrary to section 14 (1) Sexual Offences Act 1956 . Count 2: Indecent assault upon SW, a girl under the age of 16 years. Count 3: Indecent assault upon SW, a girl under the age of 16 years. Count 4: Committing an act of gross indecency towards LA, a girl under the age of 16 years, contrary to section 1 (1) Indecency with Children Act 1960 . Count 5: Committing an act of gross indecency towards SW, a girl under the age of 16 years. 3. At the conclusion of the prosecution case the judge withdraw count 5 from the jury. The jury returned a verdict of not guilty in respect of count 4 and a verdict of guilty in respect of count 3. They were unable to reach verdicts upon count 1 and count 2 and were discharged. The appellant appeals with leave his conviction upon count 3 on the ground that the verdicts were inconsistent. The principles which govern such an appeal are well known. For present purposes it is sufficient to recall the words of Hutchison LJ in Clarke and Fletcher (unreported 30 July 1998): “We approach the present case on the basis that it is for the appellant to show (1) that the verdicts are logically inconsistent and (2) that they cannot be sensibly explained in a way which means that the conviction is not unsafe. Thus an appellate court will not conclude that the verdict of guilty is unsafe if, notwithstanding that it is logically inconsistent with another verdict, it is possible to postulate the legitimate train of reasoning which could sensibly account for the inconsistencies.” 4. For a recent statement of the principles which govern appeals on this ground see Dhillon [2010] EWCA Crim. 1577 at paragraph 33. Mr Reece, who represented the appellant at trial and has presented his appeal to this court relies upon the further statement of principle made by Rose LJ in Bell (unreported 15 May 1997): “There are, of course, exceptional cases, of which Cilgram [1994] Crim. L.R. 861 provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe. However, it is to be noted that in Cilgram this court, differently constituted, expressly rejected the submission that, where a complainant’s credibility is in issue and her evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant’s allegations.” 5. At the date of trial, LA and SW were aged about 29. The events which they described in evidence took place when they were aged between about 8 and 12 years. Both of them were childhood friends of the appellant’s daughter, S. LA’s parents were on friendly terms with the appellant and his wife. They belonged to the same ‘gourmet group’ and the appellant handled the accounts of their business. LA and S would visit one another’s houses regularly and occasionally had sleepovers. LA gave evidence that the first offence in time took place on the count 1 occasion. She was aged between 8 and 10 years. She was at the appellant’s home in Hatch End, sitting at a computer with S, when the appellant approached her from behind, placed his arms over her shoulders and pressed hard down on her vaginal area. She said that it had hurt a lot and she screamed. She asked S to help her but she did not. She told her school friend, SL, about the incident when SL was staying at LA’s home. Not knowing how to describe her experience, she told SL that she had been “raped”. She did not know what rape meant but according to LA she went on to describe how the appellant had pinned her down in the chair very hard. 6. SL gave evidence supporting LA’s recollection of the complaint save that she recalled LA would only write down what had happened to her. According to SL, LA wrote “I have been raped” and started to cry. She continued that SL told her that the appellant had touched her “noonie” or her “minnie”. Against LA’s wishes SL told her father what had been said. The father gave evidence that he telephoned LA’s mother to inform her. Nothing further was done. LA’s mother agreed that her reaction to the news was dismissive. 7. Some time later the police attended LA’s and SL’s school to speak about the risk of sexual touching by adults. A form was distributed among the pupils inviting them to tick a box if they had been touched improperly. LA ticked the box. As a result a meeting was called between LA, the head teacher at the school, the police and LA’s parents. No written record of the conversation had survived either at the school or with the police. Again, nothing came of the complaint. LA’s mother told the meeting that her daughter was “a bit of a drama queen”. In her early teenage years LA spent some time in care following a breakdown in her relationship with her mother. She returned home when she was 16. Her complaint was made to the police in 2007 by which time LA had two sons of her own. Her explanation for making her complaint was that she was shown a recent photograph of the appellant with a young girl and decided that she must act to protect any other children with whose company the appellant might be entrusted in future. 8. The second count which concerned LA (count 4 in the indictment) related to a separate occasion when, according to LA, she, S, SW, and possibly another girl, were playing in the garden at the appellant’s home with a garden hose with which they were splashing water. The appellant became involved and the girls chased him into the house. They chased him as far as the main bedroom where, according to LA, a further game took place in which the girls were encouraged to touch the appellant’s penis. She said “somehow the trunks came down. He was trying to turn it into a game as to who could touch his penis”. LA was inconsistent in evidence as to whether she had touched the appellant’s penis. Finally, in cross-examination, she said she thought she had. She explained that only since she had become an adult did she realise that the appellant’s penis had been erect. At the time, LA had thought it was only a game. That is why she had not mentioned it to anyone. 9. When LA made her complaint to the police in 2007 she gave them the name of SW. According to both women, there had been no contact between them during the intervening years. When SW was asked by the police whether she had had any concerns about the appellant, she told them about three incidents which formed counts 2, 3 and 5 in the indictment. 10. It was fairly clear that count 2 concerned the occasion when S, LA and SW were playing in the garden with the hosepipe. SW could remember only one such occasion at which, she agreed, LA was present. It was SW’s recollection that one of the girls sprayed the appellant, who was fully clothed, with water. SW said that the appellant chased and caught each of the girls in turn, inserted the hosepipe down the front of their swimsuits and sprayed their bodies with water. According to SW, the appellant pulled her swimsuit away from the front of her body and inserted the hosepipe so that it came into direct contact with her vagina. She said that the appellant did the same thing to LA. 11. It was a matter for debate at trial whether the incidents represented by counts 3 and 5 occurred on the same day as the water fight in the garden. SW said nothing about an incident in the bedroom which immediately followed the water fight. She did, however, recall an occasion (count 5) when the girls were in the bedroom at the appellant’s home. The girls were playing a game in which they attempted to pull down the appellant’s trousers. SW said that they succeeded to a degree such that she observed the appellant’s “flaccid” penis. This was the incident represented by count 5 in the indictment which the judge subsequently withdrew from the jury on the ground that the jury could not safely conclude that the appellant intended indecency towards the girls. 12. As to count 3, SW gave evidence that as the girls were leaving the bedroom, she was left behind. The appellant caught hold of her and pushed her to the floor. She continued, “…he put his weight on me. He put his hand down my knickers, of my swimsuit or my trousers. I think it was trousers. I was struggling. The other girls had gone out of the room ... he moved around my vagina with his hand. It was quite sore ... I can’t remember if it went inside ... it did not last very long, about 10 seconds. He just stopped and I got away.” Asked why she had not reported the matter to anyone, SW replied “I don’t actually know to be honest. I was with my friends. I thought it was part of a game and I didn’t understand what it was”. SW believed that she was aged between 9 and 12 years when these incidents occurred. 13. When she was crossed examined, SW was asked about a reply made to a question in her ABE interview. She had said, “I can’t remember whether he removed my clothing or he put his arm down. I think he just put his arm in my clothing. At this point I can’t remember whether I was dressed or not in a swimsuit or whether I was ... I feel like I remember him putting it in my jeans, or whatever trousers I was wearing, but I’m not sure if that is definitely true or whether I just imagined it”. Mr Reece challenged SW to the effect that she was saying the whole incident may have been a product of her imagination. She replied that she was only accepting that she may have imagined wearing her clothes rather than a swimsuit. She gave evidence that she could not recall a game when the girls chased the appellant into the house after the water game. 14. The appellant elected not to give evidence. He relied upon the denials made in a prepared statement and in interview under caution that any such indecency had taken place with either of the girls. 15. After deliberating for 5 hours 50 minutes the jury returned with a unanimous verdict of not guilty upon count 4. They received a majority verdict direction from the judge and after deliberating for a total period of 14 hours 26 minutes, they returned with a majority verdict 10/2 of guilty upon count 3. The jury was then discharged from reaching further verdicts. The prosecution has since elected not to seek a retrial on counts 1 and 2. 16. Mr Reece has submitted that the verdict of guilty upon count 3 is logically inconsistent with the verdict of not guilty upon count 4 and even inconsistent with the jury’s inability to reach a verdict on count 2; accordingly, the guilty verdict on count 3 is unsafe. His submission is founded upon the presumption that the jury either did proceed or must have proceeded upon a factual finding that the incidents represented by Counts 2 -5 all took place on the same occasion, associated with the water play in the garden at the appellant’s home. If that is the appropriate way of examining the jury’s verdicts, both LA and SW were present when the Count 2 assault with the hosepipe occurred, when the Count 4 exposure and touching invitation took place, and when they were playing the Count 5 game. Yet, LA was unable to confirm that any indecent assault occurred which was associated with the hosepipe, and she had been unable to confirm that the Count 5 incident occurred at all. Further, SW did not confirm the evidence of LA that any count 4 ‘game’ in swim wear had occurred. 17. The jury did not, however, acquit upon counts 1 and 2. They failed to reach a verdict. It is not possible, in our view, to find inconsistent a verdict which was not returned. As to count 4, it is logically possible that the jury concluded that they could not be sure either that the incident occurred, or if something of the kind did occur, that it was indecent. 18. We do not accept the premise for Mr Reece’s argument that the jury concluded that the count 3 incident took place on the same occasion as the incidents charged in counts 2 and 4. It is, as we have indicated, tolerably clear that counts 2 and 4 both occurred on the only occasion when the girls could recall that they were playing in the appellant’s garden with a hose. If that was correct, it was unsurprising that the jury was having difficulty reconciling the evidence of LA and SW as to the incidents, first in the garden and, second, in the bedroom. 19. The significant feature of SW’s evidence which apparently separated counts 3 and 5 from counts 2 and 4 is SW’s recollection that on the occasions represented by counts 3 and 5 both she and the appellant were fully clothed. In our judgment, it was not a necessary inference that the count 2 – 5 incidents took place on the same occasion and it is highly unlikely that the jury concluded that they did. 20. In support of his argument that the verdict of guilty upon count 3 was unsafe Mr Reece relied upon what might have been an inaccuracy in the judge’s summary of a short passage of the evidence. He said (Transcript page 27 H – 28 A) while reminding the jury of the evidence of LA: “Somehow the trunks came down. He was trying to make it a game as to who could touch his penis. No, I did not touch it. I can’t remember if I did. We thought it was a game and we were laughing and giggling. We just thought it was a game and went back downstairs.” 21. At page 30A, the judge reminded the jury of an answer given in cross-examination: “We ran out onto the landing to go downstairs. It is not clear that all of us went down together.” 22. Mr Reece’s instructing solicitor took a note of LA’s evidence to the effect that LA believed that all the girls had descended the stairs together. Mr Reece’s pupil made a note that “they (the girls) all ran down the stairs together (straight down – no-one went into S’s room)”. Mr Brady, who appeared for the respondent, made a note at the time as follows: “Think we all ran out again – 3 or 4 girls ran out – straight to stairs – didn’t pause to go to S’s room – I think – went downstairs – nothing to suggest that anyone last to leave from room.” 23. It will be seen that the effect of Mr Brady’s note is similar but not identical to that of the defence team. One was a positive assertion that all the girls went down the stairs together; the other signified an absence of recollection that anyone lagged behind. Mr Reece’s argument is that LA’s evidence was important to his client. If LA had no recollection that any of the girls was detained by the appellant in the bedroom, there must be doubt whether the count 3 incident occurred at all. Contrary to LA’s evidence as recorded, the judge suggested in summing up that LA was unclear whether any of the girls lagged behind the others. We doubt that this inaccuracy in the summing up, if it was an inaccuracy at all, was significant. Had it been significant we would have expected someone to draw it to the attention of the judge at the time. However, for the argument to have any weight at all we would again be required to accept that the jury must have, or should have, concluded that the incidents described by LA (count 4) and SW (count 3) allegedly occurred on the same occasion. We do not accept that premise. As we have said, we think it probable that the jury concluded count 3 took place on another occasion altogether, either later on the day when the girls had been playing with the hose, and the girls and the appellant were fully clothed, or on a different day. We are not persuaded that these verdicts were in any way inconsistent. They are easily explicable upon the basis that SW was describing a discrete occasion which was not inconsistent with the evidence of any other witness. 24. Mr Reece invited us to consider whether, notwithstanding the absence of logical inconsistency, the verdict might nevertheless be regarded as unsafe. He drew our attention to the facts and the judgment in Dhillon . The court was considering the safety of convictions upon a single count of assault by penetration (count 1) and a single count of sexual assault (count 3). The appellant had been acquitted upon counts 2, 4 and 5 which all charged him with sexual offences against the same complainant on the same occasion. After considering the authorities, Elias LJ, delivering the judgment of the court said: “41. Generally, therefore, in sex cases where it is alleged that different sexual incidents occurred on separate occasions, verdicts will not be inconsistent simply because a jury convicts on some counts and acquits on others, because there is likely to be an obvious legitimate chain of reasoning to explain the verdicts. The jury may be sure that a witness has reliably recalled one incident but remained unsure about another; or they may consider that some incidents are exaggerated or fabricated but not all. There have been numerous cases of this nature where challenges on the basis of inconsistent verdicts have unsurprisingly failed: e.g. R v Bell (unreported 15 May 1997) and R v VV [2004] EWCA Crim. 255 . 42. This case does not, however, fall into that category. Here the various alleged offences are simply different facets or acts in the course of a single sexual encounter. In these circumstances, if the jury is unsure of the complainant’s evidence with respect to one count on the grounds that it may be unreliable or lack in credibility, it is likely to be more difficult than it would be with respect to chronologically separate encounters for a jury to be sure that the evidence on the other counts is reliable and credible.” 25. On the particular facts in Dhillon the court concluded: “50. It follows that in our view the verdicts were inconsistent and/or perverse. But as we have said that does not of itself demonstrate that they are unsafe. Mr Gritt submitted that even if, contrary to his primary submission, they were inconsistent and/perverse, they constituted what he described as “explicable perversity”. The issues before the jury were clear; they knew that they had to find that the act described in the count occurred, that there was no consent, and no reasonable belief in consent. The jury took considerable care over their verdicts; they considered them over a period of some six hours. If and to the extent that the verdicts are inconsistent, the evidence suggests that the verdict on count 4 might have been an unjustified acquittal, favourable to the appellant rather than that he was unjustifiably convicted on counts 1 and 3. 51. We see the force of that submission but are not ultimately persuaded by it. We are satisfied that the jury may have approached these counts in the wrong way. They clearly found difficulty reaching a verdict as witnessed by the fact that it was a majority verdict after some 6 hours of deliberation. We think that there is a real risk that in an understandable attempt to reach a verdict, a compromise might have been reached without the necessary majority actually being sure with respect to the two counts where convictions were returned.” 26. Mr Reece endeavoured to persuade us that after a retirement of 14½ hours in a comparatively short trial this jury may have been labouring under a similar pressure. We reject the argument that there are circumstances present here which render the verdict unsafe. We are not surprised that the jury was having difficulty with the evidence because, in some respects, LA and SW were inconsistent in their accounts of occasions at which they were both said to be present. It is, however, significant that the jury’s verdict of guilty in respect of count 3 concerned an occasion upon which the evidence of sexual assault was unequivocal. As we have concluded, the jury’s verdict is further explained by satisfaction that the count 3 occasion was separate from those represented by counts 1, 2 and 4. We have no difficulty understanding how the jury concluded that they must return a verdict of not guilty upon count 4. In the absence of supporting evidence from SW, the jury was not prepared to conclude that the incident was, however it occurred, an occasion of indecency. 27. Far from buckling under the strain of a long retirement, this jury was conscientiously doing its duty. They did not return verdicts on counts 1 and 2 because they could not agree. There is not the slightest indication that the jury was engaged in compromise; the reverse is true. We have examined the summing up with some care. The judge’s directions on the law were accurate and complete. She was particularly careful to point out to the jury the possible disadvantages to the defendant arising from complaints made several years after the event. The jury was explicitly directed to consider those matters when reaching their ultimate conclusion whether the prosecution had proved its case so that they were sure. The jury had the advantage of observing the two complainants give evidence. We see no reason to interfere with the jury’s judgment that, whatever their reservations upon other counts, they were sure the count 3 indecent assault took place as SW described it. For these reasons the appeal will be dismissed.

```yaml citation: '[2011] EWCA Crim 1' date: '2009-10-19' judges: - LORD JUSTICE PITCHFORD - MRS JUSTICE SLADE DBE ```

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Case No: 201701203 C5 Neutral Citation Number: [2017] EWCA Crim 1778 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HIS HONOUR JUDGE THOMAS QC T20150784 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/11/2017 Before: LORD JUSTICE DAVIS MR JUSTICE LAVENDER and SIR NICHOLAS BLAKE - - - - - - - - - - - - - - - - - - - - - Between: R Respondent - and - DAVID ERNEST FLETCHER Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Rodney Ferm for the Appellant Ian Howard for the Crown Hearing date: 19 October 2017 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Davis: Introduction 1. This appeal against conviction is based on what is said to be an inconsistency between the verdicts of a jury. Appeals advanced on such a basis only relatively rarely succeed. But it is said that the present case is one in which the appellate court should interfere. 2. The appellant had faced trial at the Bradford Crown Court on an eight count indictment. He was on Counts 1 to 7 charged with indecent assault on a male contrary to s. 15(1) of the Sexual Offences Act 1956 . On Count 8 he was charged with sexual assault contrary to s. 3 of the Sexual Offences Act 2003 . The complainant, who may be styled G, was the same on each count. At the conclusion of the trial before HHJ Roger Thomas QC and a jury the appellant was on 24 February 2017 convicted on two counts (Counts 2 and 3 on the indictment). He was acquitted on the remaining counts. 3. He was in due course sentenced to a term of three years imprisonment on each count concurrent (subsequently reduced by this court to a sentence of one year’s imprisonment on each count concurrent). He has been required in consequence to register under the provisions of the Sexual Offences Act 2003 . Background facts 4. The complainant, G, was born on 3 August 1976. He has a younger sister. He had a somewhat troubled upbringing. Among other things, his mother, a single parent, had significant health and other problems and struggled to cope. From the age of five to the age of nine G attended primary school in Bradford. At the age of nine, in 1985, he moved to middle school in Bradford. He struggled at school. Throughout that time the appellant was deputy headmaster at the primary school in question, although he did not actually teach G. In that time the appellant and his wife came to know G’s family; and it also seems that G’s sister was friendly with the appellant’s daughter. It was not in dispute that G thereafter would sometimes visit and also on occasion stay over (in effect as a form of respite for the mother) at the home of the appellant and his wife. 5. In 1985 the appellant and his wife had bought a house in Long Lane, Queensbury, Bradford. There was evidence that it needed renovation and was not fit for occupation until 1986. It had around 2 acres of land attached, which they came to use in effect as a smallholding. In the summer of 1988 they then moved to a different house, the Old Sweet Factory in Wheatley, which did not have any significant land attached to it. They lived at the Old Sweet Factory until April 2007, when it was sold and they moved elsewhere. The appellant had in the meantime become head teacher at another school in 1990 and subsequently was ordained in 2001. 6. G (who had maintained social contact with the appellant and his wife until 2004) first made complaint to the police in 2014 that on a number of occasions he had been indecently assaulted by the appellant, both at the Long Lane address and at the Old Sweet Factory. He was to say that the offending first started when he was about nine years old, after he had gone to middle school, saying that it was “at the goats.” He said that it would continue at the Old Sweet Factory (where there were no goats) and indeed continued beyond the time he reached the age of sixteen. In the event, Counts 1 to 7 on the indictment spanned the period 3 August 1985 to 2 August 1992: Count 1 being for the period 3 August 1985 to 2 August 1986, Count 2 being for the period 3 August 1986 to 2 August 1987 and so on. Each such count of indecent assault was asserted at trial to be a “specimen” count; although no count was actually framed on the indictment as a multiple-incident count. Count 8 was charged as a specific count of sexual assault relating to an incident allegedly occurring much later, between December 2002 and May 2004 (originally put, before amendment, as occurring between March 2009 and March 2011). 7. In each case on Counts 1 to 7 the offence was tersely particularised on the indictment by stating that, in the relevant period for each count, the appellant “indecently assaulted” G, giving his age in such period in each case. 8. In summary, the prosecution case was that the appellant regularly indecently assaulted G by touching him over his clothing, both in the area of his genitals and chest (the appellant sometimes also putting his hand on his chest under his clothing). It was also said that the appellant would grind or push against G from behind and would also kiss him (G described it as “snogging” and referred to the prickles from the appellant’s facial hair). G said that it started at Long Lane, “at the goats”, where he would regularly visit. It continued, he said, after the move to the Old Sweet Factory. 9. As to Count 8, G said that this incident occurred when he and his wife to be (whom he had met in 2001) had gone to dinner with the appellant and his wife at the Old Sweet Factory. This was shortly before they married (in June 2004). While there the appellant whilst in the kitchen had pushed himself against G and tried to kiss him. There was evidence from G’s wife that G had appeared flustered at the end of that evening and a week or so later he told her what he said had happened. Thereafter, at all events, relations between the families were broken off. Subsequently, according to G’s wife, G had told his wife of the abuse he said he had suffered as a boy from the appellant. The police were, however, not informed until 2014, G having also told a Church Archdeacon in that year. 10. When arrested and interviewed the appellant answered questions in full. He denied all the allegations. He suggested that they were fabricated because G was angry that the appellant – who had in the meantime been ordained – had not been in a position to officiate at G’s wedding in 2004: which, he suggested, was why social contact had then ceased. The proceedings at trial 11. The essential issue at trial was whether the various allegations were true. 12. It was common ground that this was ultimately a word against word case. There was no independent corroboration for G’s account of events relating to Counts 1 to 7. As for Count 8, G’s allegations potentially had some support from his wife’s account of his demeanour that evening and his subsequent complaint to her. On the other hand, G had said that the appellant’s wife had or would have seen what occurred in the kitchen: and she gave evidence at trial wholly denying seeing anything untoward, either then or on any other occasion. 13. We gather that G’s evidence in chief was given by way of his ABE interview. This court was provided with a transcript. The court was not, however, shown a transcript of the cross-examination of G. 14. The actual transcript of the ABE interview provides a version of events which, as transcribed, does not, with respect, always give an altogether clear or coherent recital of events. However, G was to say that the appellant would take him to the house in Long Lane, albeit he never took his sister (there was, however, evidence from G’s mother, called by the prosecution as a witness, that the sister would sometimes go: as was also the evidence of the appellant and his wife and daughter). G among other things said “he used to have me helping with goats and stuff, I must have been about nine, so I’d just left primary school….” G also said that there was a period of time, when he was aged between twelve and thirteen, when he had gone to Cornwall for a few months and attended a local school in Cornwall before returning. He said that the offending reoccurred at the Old Sweet Factory after he returned from Cornwall. G gave further evidence about what he said had occurred. So far as Long Lane was concerned, he among other things said: “he’d start messing about, he were messing about at first….. doing bedding on straw, goats and stuff, like, starting…. and then it’d end up…. not touching genitals, touching, but touching everywhere else and kissing me like a girl….” He went on to say that “the goats were the first thing… It’s just what happened when we were bedding out…. Looking back, you think, you know, you think it’s just messing about but it weren’t, it were touching….” He went on to indicate where he had been touched. He went on to say “…but that were away from everyone as well, cos we were mucking out, weren’t we?” Concerning later incidents, he said he would see the appellant around once a week (that was in issue at trial). When asked how many times these things happened, he said: “As soon as he could get away, as soon as no one were there.” 15. It was not in dispute that G had remained in contact with the appellant and his family until 2004 but not thereafter. His mother was to say in evidence that, as a child, G had seemed happy to go and visit the appellant and never said to her that anything wrong had happened. 16. One feature of G's ABE interview is that much of it included allegations by G of (altogether more serious) sexual abuse of him as a child by another, very prominent, individual in the local community. Indeed it was suggested at trial that this may have tainted G's perception about the appellant's own conduct. It was also suggested that his complaints may have been prompted by a bitter and deluded relative (since deceased). 17. The appellant gave evidence at trial in line with his interview. He totally denied all the allegations. His wife also gave evidence, as did other witnesses. A considerably amount of character evidence was also adduced, attesting to the appellant's attributes and good service. The appellant had no previous convictions of any kind. The summing-up 18. No criticism of any sort is made as to the fairness or balance of the summing-up. 19. The judge – who of course gave the required direction as to burden and standard of proof - pointed out that there was "a dramatically opposed clash of evidence. It happened in these ways, [G]; no such thing happened, the defendant”. Dealing with the indictment, the judge also pointed out that the first seven counts covered the period when G was aged between nine and sixteen (then giving appropriate direction relating to the lapse of time). The judge noted that these had been described at trial as "specimen" counts. As to that the judge said: “If you are going to convict the defendant on any one count you would have to be sure that the conduct that he [G] generally describes, those various acts, not all of them but an act during that particular year, whichever count you are looking at, that it did happen on at least one occasion about which you are all agreed during that year of his childhood...” The judge went on to give a full separate treatment direction. Amongst other things he said this (saying that he would come on to Count 8 separately): “Counts 1 to 7 they are separate counts but this is not a situation where you can say to yourselves: well we are sure he has done it and therefore guilty across seven counts. Each count has to be looked at separately and individually... there [are] eight verdicts to return here, individual separate verdicts in relation to each count.” 21. The judge had noted in the course of the summing up the effectively unchallenged evidence of the defence that the goats only arrived at Long Lane in around October 1986: which was after the period specified in Count 1. As to Count 4, it was also noted by the judge that in the period between August 1988 and August 1999 G's own evidence was that he had for much of that time been in Cornwall. Having made these observations as to timings the judge then said: “So I go back to what I was saying, each count does need that separate and individual consideration in terms of did anything happen at all in that year, of course the defence case is nothing happened in any year, but did anything happen in a particular year, are you sure of it, and look at the particular year as well as the particular conduct, that is the task ahead of you.” 22. The judge summarized the facts and the issues arising on all the evidence relating to the counts. The judge set out the respective cases of the prosecution and defence. In the result the jury convicted on counts 2 and 3 and acquitted on the remaining counts, as we have said. The legal principles 23. There was no dispute before us about the applicable legal principles. They are authoritatively set out in the recent decision of a constitution of this court in the case of Fanning, Kerner, Osianikovas and de Jesus [2016] EWCA Crim 550 , [2016] 2 Cr. App. R. 19. That decision itself confirmed the previous Court of Appeal decision in Durante [1972] 3 All ER 962 . 24. In Durante , Edmund Davies LJ, giving the judgment of the court, cited with approval the remarks of Devlin J in the unreported decision of Stone (1954). Devlin J there had said: “When an appellant seeks to persuade this court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.” Edmund Davies LJ then formulated the position as this: “...the burden is on the appellant to show that the verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court.” On the facts of that particular case, (where, as it happens, the trial judge had directed the jury that the two counts in question did not necessarily stand or fall together), it was held that the appellant had discharged the burden resting on him. 25. Those principles were affirmed in Fanning . It was there also pointed out, by reference to statements in earlier authority, that the jury is "not a precision instrument" and that "if a flawless process of reasoning were required a jury would be a strange body from which to require it." It was also stressed that the court must be careful not to usurp the role of the jury. 26. A further principle in this context - and relevant to the present case - was affirmed in Fanning . That is to the effect that, where a complainant’s credibility is in issue and that complainant's evidence is uncorroborated, guilty verdicts are not to be regarded as unsafe just because the jury also has returned not guilty verdicts in relation to other counts based on that complainant's allegations: see, for example, Cilgram [1994] Crim LR 587. It thus is generally permissible for a jury to be sure of the credibility or reliability of a complainant on one count on an indictment but not on another count. A jury therefore is not to be treated as having rejected a witness's evidence altogether just because it is not convinced of the defendant's guilt on a particular count: see Fanning at paragraph 27. Accordingly there is no necessary irrationality in, for example, convicting on one count and acquitting on another even where both counts relate to the same sexual encounter: the case of Osianikovas itself being such a case. As the court, however, also went on to say (in dealing with the case of de Jesus ): "…although there should be no differentiation as a matter of law between a single event and a series of events, the potential for different verdicts is greater than if the court is trying a number of counts arising from a single episode": see paragraph 100. 28. Yet further, even where a strict logical inconsistency can be identified it by no means follows that the verdicts are so inconsistent as to require the court to interfere: as the case of Segal [1976] Crim LR 324 and the Australian case of McKenzie v R [1976] 190 CLR 348, both cited with approval in Fanning, demonstrate. 29. Finally, the court in Fanning emphasised (at paragraphs 29 and 30) that it will not usually be open to a defendant to complain of inconsistent verdicts where a jury has, without objection, been given a conventional separate treatment direction in the summing up. After all, it is difficult to complain of a jury acting illogically or irrationally when it returns verdicts in a way that it has been instructed it was legally entitled to do. Disposal 30. We turn to our conclusion in the present case. 31. On one, simple, view there is no illogicality or inconsistency here at all. The jury was, in principle, not required either to accept or to reject G's evidence in all respects. Further, it had been given a full separate treatment direction. On that basis alone it can be said that the verdicts cannot be held to be so inconsistent that no reasonable jury could have reached the conclusion that the verdicts could stand together. 32. However, we do not think that it would do justice to Mr Ferm’s careful and persuasively put arguments to dispose of this appeal on so summary a basis. Indeed we apprehend that it was those arguments, as presented in writing and subsequently orally and in writing supplemented before us, that persuaded the single judge to grant leave to appeal in this case. 33. Mr Ferm, understandably enough, put emphasis on the acquittal on Count 8. That was the most recent incident in point of time, occurring (as alleged) when G was an adult and when his memory would have been fresher. Further, the allegation had some degree of support from his wife’s evidence. Yet the jury acquitted. Mr Ferm thus queried how the jury nevertheless could be sure of guilt on two, very much earlier, incidents when G was a child and when his evidence was wholly uncorroborated. We see the point. But Count 8 related to a quite separate and self-contained incident and the evidence both of prosecution and of defence witnesses was different. It cannot be assumed that the assessment of G's evidence relating to that particular count was required to be taken by the jury as the key to the assessment of his credibility and reliability on all the other counts. Thus the acquittal on Count 8 cannot of itself vitiate the conviction on other counts relating to much earlier incidents: as Mr Ferm rightly accepted. 34. It also cannot be said that there is any logical or other inconsistency between the acquittal on Count 1 and the convictions on Counts 2 and 3 - those three counts covering events at Long Lane - if only because there was the clear distinction arising from the date when the goats actually arrived late in 1986. Likewise, with regard to the Old Sweet Factory, Count 4 potentially had a clear differentiation: since that count spanned the period when, on G's own evidence, he was for several months in Cornwall. 35. Mr Ferm accepted all this - indeed it explains, he said, the judge’s separate treatment direction in the summing up. But he said that there was more. In particular, his point was that the jury also acquitted on Counts 5, 6 and 7 whilst at the same time convicting on Counts 2 and 3. He submitted that no rational basis for this differentiation can be discerned. He submitted that the evidence of G had drawn no difference in type with regard to the conduct alleged as between Long Lane and the Old Sweet Factory. It was not said, for example, that there had been any progression or variation in the type of sexual abuse alleged as between the two venues. He submitted that there was no additional evidence specific to what happened at Long Lane; and, on the contrary, those matters related back furthest in time and when G was at his youngest. True it was that G had "anchored" those particular allegations relating to Long Lane by saying that they had occurred "at the goats" - but that, he submitted, was of no true materiality given that it was always common ground that G had on a number of occasions been to Long Lane "at the goats". 36. For his part, Mr Howard for the Crown drew attention to the way in which the indictment had been framed and the way in which the judge had in consequence summed up to the jury. He stressed that each of Counts 1 to 7 of the indictment was specific as to the year in which what was alleged happened and as to the age of G at the time. Thus the emphasis of G on what happened occurring “at the goats”, after he had gone to middle school, was material to the jury's consideration not only of what happened but when it happened: as the summing up had specifically required the jury to consider. Thus there was a differentiation in at least this respect between these counts and the counts relating to the Old Sweet Factory. (Those are points of a general kind, we note, also considered material by the court in disposing of the case of Fanning , on its facts: see paragraphs 38 to 40 of the judgment.) In any event, Mr Howard said, there were other differences as to the evidence relating to the individual counts. For example, G had said that the abuse at Long Lane occurred whilst the goats were being bedded out; but there were was no such level of detail with regard to what is said to have later occurred at the Old Sweet Factory whilst G was still under the age of sixteen. 37. We have carefully considered the points made. On one view, the jury's decision to acquit on count 5, 6 and 7 but to convict on counts 2 and 3 - counts 1 and 4 are much more easily explained - may seem surprising: the more so, perhaps, when set in the context of the acquittal on count 8 also. But the authorities are clear that what may seem to an appellate court (which of necessity has not heard or seen the witnesses at trial) to be surprising is not of itself enough to entitle it to set aside verdicts of a jury on the ground of inconsistency. Indeed in a case such as the present it could involve the court attempting to engage in a degree of post - trial rationalisation which accords to a jury's reasoning the requirements of a precision instrument: which again this court should not do. 38. We are in any event not able to say, from the materials which we have seen, that the evidence which G gave as to what occurred was in effect undifferentiated between what happened at Long Lane and what happened at the Old Sweet Factory. It is possible, at all events, to extract a greater degree of specificity from the transcript of the ABE interview as to the alleged events at Long Lane (for example, that the indecent assaults occurred while mucking out) as compared to the very generalised evidence about what occurred thereafter at the Old Sweet Factory (apart from count 8). It may be – we have no way of knowing ourselves – that this may have been reinforced in the minds of the jury as a result of the oral evidence. The jury may well have concluded that with regard to Long Lane it was persuaded on Counts 2 and 3, by the evidential details provided, for each year as charged (Count 1 having the obvious difference as set out above) but may have been left in doubt by reason of the lack of detail on Counts 4, 5, 6 and 7. We cannot, at all events, say that the jury’s verdicts are wholly inexplicable. The verdicts are not so inconsistent as to demand interference by the court. 39. Moreover, the judge had in terms given a very full separate treatment direction to the jury, without objection. It is also perhaps a point of comment that – whilst the potential differences for Counts 1, 4 and 8 were clear and spelled out in the summing-up – the trial judge, who had heard all the evidence, had not thought it appropriate to give the jury a “steer” as to there being any difficulty in reaching different verdicts between Counts 2 and 3 on the one hand and Counts 5, 6 and 7 on the other hand. Conclusion 40. It is essential in cases of this kind that the appellate court should adhere to the principles of Durante , as explained and confirmed in Fanning . Although the powerful arguments of Mr Ferm have given us some cause for hesitation, our ultimate conclusion is that, on the facts of this particular case, there is no inconsistency here such that the verdicts cannot stand and such that this court is required to interfere. The appellant has not discharged the burden on him in this regard. The convictions are to be regarded as safe. That being so, we must dismiss this appeal against conviction.

```yaml citation: '[2017] EWCA Crim 1778' date: '2017-11-15' judges: - LORD JUSTICE DAVIS - MR JUSTICE LAVENDER - SIR NICHOLAS BLAKE ```

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

Neutral Citation Number: [2013] EWCA Crim 2536 Case No: 201206569/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 10th October 2013 B e f o r e : LORD JUSTICE LAWS MR JUSTICE GLOBE MR JUSTICE JAY - - - - - - - - - - - - - - - - - - - - - R E G I N A v FREDERICK WRIGHT WALTON - - - - - - - - - - - - - - - - - - - - - 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 Hawks appeared on behalf of the Appellant Mr G Doig appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LAWS : This appellant faced an indictment containing 12 counts alleging sexual offences. On 26th October 2012 before His Honour Judge Sloan QC at the Newcastle Crown Court he was convicted by the jury on all counts. Counts 1 to 4 alleged offences of rape. Counts 5 to 12 alleged offences of indecency with a child. On 23rd November 2012 he was sentenced to concurrent terms of 16 years' imprisonment for each of the rape offences and lesser concurrent terms on the other counts. He appeals against his conviction by leave of the single judge. 2. The complainant on all counts was a girl, C, born on [a date in] 1988. The appellant was a long-standing friend of her father. The Crown case was that he had repeatedly abused her sexually between 1999 and 2002 when she was aged between 11 and 14. The counts were all specimen counts: counts 1 to 4 of rape; counts 5 to 8 of occasions when he placed his penis in her mouth and counts 9 to 12 of occasions when he masturbated in front of her. On C's evidence the first offence was one of rape when she was 11, in a building in G Road in Sunderland. It happened again a fortnight later and thereafter she was abused two or three times a week at different addresses over a period of years. He would give her money and sweets. He would threaten to kill her if she told anyone. She first reported the abuse to the police on 19th October 2012 when she said she was drunk. A friend of hers, SG, gave evidence that before that C had told her that she had been raped by her father's friend. 3. Interviewed by the police on 24th November 2011 the appellant, acting on his solicitor's advice, produced a prepared statement denying the allegations and stating that he had been away from the area at various times between 1999 and 2003. He declined to answer any questions asked by the police. In evidence he said he was not at G Road when the abuse allegedly occurred there. But the Crown relied for one occasion on the police log of a 999 call made from the G Road premises on 21st December 1998, with the caller logged as the appellant. He said someone else made the call. 4. The appellant was asked no questions in the witness-box, in chief or cross-examination, about why he had declined to answer the police questions in interview. Nor was any reference made to this fact in Crown counsel's closing speech. However, after the defence was closed and before speeches to the jury the trial judge, in the absence of the jury, indicated that he proposed to give a direction under section 34 of the Criminal Justice and Public Order Act 1994, to the effect that it would be open to the jury to draw an adverse inference against the appellant from his failure to answer questions in interview. Defence counsel objected, submitting, as we understand it, there is no transcript that Crown counsel has not cross-examined about the appellant's silence in interview and was not seeking a direction as to adverse inference. Crown counsel confirmed to the judge that that was so. However, the judge was seemingly unmoved and proceeded in his summing-up to give such a direction. 5. The principal ground of appeal is that in the circumstances he was quite wrong to do so. A secondary ground is that the form of the direction was itself prejudicial. It may have left the jury with the impression that there were further matters beyond those mentioned by the judge, which the appellant ought to have mentioned when he was interviewed. 6. It is only necessary to read that part of the direction that relates to this second ground (summing-up transcript page 16B): "For example, he never mentioned in interview that [S] did not go with him, at all, to certain properties. He did not mention, when interviewed, that she was always accompanied by others - family members - when she did attend other properties. He never mentioned that he was never alone with her. None of those facts, upon which he now relies, were mentioned by him when interviewed." 7. We do not consider that there is anything in this second ground to the effect that the jury may have thought that there were other matters not referred to that the appellant ought to have raised in interview. The argument really rests on the judge's use of the phrase "for example" at 16B. It is in our judgment not realistic to suppose that this phrase left any particular impression on the jury. 8. However, the first ground of appeal has much force. It is elementary that an adverse inference of guilt should only be drawn from a defendant's silence in interview if the only reasonable explanation for that silence is that he had no answer to the accusation put to him or none that would stand up to scrutiny. But here the appellant was never asked what his explanation was. Nothing was said, nothing suggested to the jury about the appellant's silence at any stage in the evidence or in counsel's closing speeches. Yet the jury were invited to consider an adverse inference without knowing what if anything the appellant might have had to say about his silence. That in a case where, as Mr Doig for the Crown has fairly accepted this morning, the essential issue was who the jury believed. 9. Mr Doig says the complainant was a strong witness. That may have been so. But we are quite unable to conclude that the result in this case must have been the same even had the judge not given the impermissible direction. It was a wrong and unfair direction. These convictions are unsafe. The appeal is allowed. 10. MR DOIG: My Lord, we seek a retrial. 11. LORD JUSTICE LAWS: Mr Hawks? Mr Hawks you cannot resist. We will order a retrial. There are standard directions. The Registrar has a helpful crib. So we allow the appeal and quash the conviction or specify counts or offences which are quashed. The convictions on all counts on the indictment are to be quashed and the appellant is to be retried on all those counts. We direct that a fresh indictment be served under see section 8(1) of the Criminal Appeal Act and that the appellant be arraigned on the fresh indictment within 2 months of today's date. I do not think it says so here. The position is that the venue of the retrial is a matter, strictly speaking, for the presiding judge of the relevant circuit (the north east circuit in this case) but presumably subject to any fresh directions for any special reason it will go back to Newcastle. I would have thought so. 12. As regards custody or bail, unless Mr Hawks has any submissions, and speaking for myself I think he is to remain in custody. If there were to be an application for bail it be made to the Crown Court. 13. MR HAWKS: Yes, I am not in a position to make an application at the moment. 14. LORD JUSTICE LAWS: Certainly not today. Do we make an order under section 4(2) of the Contempt of Court Act restricting reporting of the proceedings until after conclusion of the trial? I do not think you want potential future jurors reading my judgment, do you? I would not have thought so. 15. MR DOIG: No thank you. 16. LORD JUSTICE LAWS: We make such an order until after the conclusion of the retrial. I think that is everything. We are to note that your legal aid order does not cover a retrial, and you probably know this already, I better tell you, since the end of June 2010 representation orders for the retrial can no longer be made by this court. Legal representations should be, we are told, that applications for such orders should be made to the Highbury Coroner Magistrates' Court. I have the address here. In Holloway Road, London N7, so there you are. 17. MR HAWKS: Perhaps we can go there on our way back to Newcastle my Lord.

```yaml citation: '[2013] EWCA Crim 2536' date: '2013-10-10' judges: - LORD JUSTICE LAWS - MR JUSTICE GLOBE - MR JUSTICE JAY ```

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: 2022/01995/A4 NCN: [2022] EWCA Crim 1346 Royal Courts of Justice The Strand London WC2A 2LL Thursday 6 th October 2022 B e f o r e: THE VIC- PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION ( Lord Justice Holroyde ) MR JUSTICE DOVE MR JUSTICE KERR ____________________ ATTORNEY GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 ____________________ R E X - v – MICHAEL GEORGE EDWARDS JONES ____________________ 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 N Hearn appeared on behalf of the Attorney General Mr I Goldsack appeared on behalf of the Offender ____________________ J U D G M E N T Thursday 6 th October 2022 LORD JUSTICE HOLROYDE: 1. Michael Jones, to whom we shall refer as "the offender", pleaded guilty to an offence of wounding his partner, "Ms C", with intent to do her grievous bodily harm. On 6 th June 2022, in the Crown Court at Sheffield, he was sentenced to six years' imprisonment. 2. His Majesty's Solicitor General believes that sentence to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988 , for leave to refer the case to this court so that the sentencing may be reviewed. 3. The offender (now aged 40) had been living with Ms C for over a year. There had been difficulties in their relationship, particularly when the offender had been drinking. The police had been called to the home on a previous occasion when he had assaulted Ms C by strangling her. On that occasion she did not wish to make any formal complaint, and there was no prosecution. 4. The present offence was committed in the early hours of 8 th February 2022. It is necessary to give a little detail about the facts. The offender was drunk and angry. He ordered Ms C to leave the house. She began to do so, but the offender knocked her to the floor, straddled her, pinned her arms with his knees and repeatedly slapped and punched her in the face. He told her that his life was over and so was hers. He said that when he had finished with her, no one would find her and no one would care. She begged him to let her go, but he continued his assault. He said that he would send Ms C to join her deceased mother. 5. The offender then held a cushion over Ms C's face whilst still pinning her down. She struggled to breathe. He repeated this action five or six times. He then armed himself with a large knife from the kitchen, again straddled her and placed the knife point against her chest. He made her hold the knife handle, with his hands over hers, and told her that they would play truth or dare: he would ask questions, and if she gave the wrong answers he would push the knife into her. He did not in fact wound her at that stage, but she felt the knife point pressing into her. The offender then told Ms C that he would take her upstairs, tie her to the bed and stab her in different positions to see which one would kill her. Ms C managed to crawl into the kitchen, but he prevented her from leaving and then stabbed her in the abdomen. 6. The offender called for an ambulance. He claimed that Ms C had fallen onto a knife. When the emergency services attended, the offender was still present. He had, however, washed the knife. 7. In addition to the stab wound, Ms C suffered cuts and bruises to her face and arms, and a laceration to her nose, which required stitches. She underwent an emergency laparotomy to repair the wound to her abdomen. She remained in a critical care unit for some days. 8. The offender made no comment in interview. At his first appearance in a magistrates' court, he indicated a not guilty plea. His representatives noted on the relevant form an issue as to whether Ms C's injury was self-inflicted. They had concerns about the offender's mental state, and in due course a report was prepared by a consultant forensic psychiatrist, Dr Vandenabeele. 9. When he appeared in the Crown Court, the offender pleaded guilty. Sentence was adjourned. No pre-sentence report was ordered by the court. 10. At the sentencing hearing, Ms C read out a Victim Personal Statement which had been written about three months after the offence. She said that during the assault she had thought she would die. She noted as a particularly terrifying feature that the offender had remained calm and composed throughout. She was in continuing pain and discomfort from her injuries and had a long scar from the laparotomy. She had constant intrusive memories of the assault and had difficulty sleeping. She no longer felt safe, was fearful in male company, avoided socialising, and could no longer travel in the course of her employment because she felt unable to spend a night away from her home. 11. The offender had been sentenced on four previous occasions for a total of six offences. These included two offences of battery of a former female partner, for which he received a short prison sentence in 2015. Other offences had also been committed in a domestic context. The most recent conviction, in December 2019, involved an offence of damage committed in the course of a row with his then partner, and in the presence of her 14 year old daughter. The offender had been made subject to a community order for that offence. The order had expired only a short time before the present offence. 12. The judge considered Dr Vandenabeele's report. It showed that the offender had a history of depression and had on occasions been prescribed antidepressant medication. He also reported a history of drug use from a young age, which had continued for a number of years. The offender had attempted suicide by an overdose in June 2021. Dr Vandenabeele did not find that the offender suffered from a functional mental illness, but took the view that, both at the time of the offence and currently, the offender was suffering from a likely condition of adult Attention Deficit Hyperactivity Disorder, and should be considered at least psychologically dependent on alcohol. The offender's intoxication at the material time would likely have "added a further element of impulsivity and disinhibition". It was the doctor's opinion, at paragraph 16.12 of his report, that "[the offender's] risk of re-offending may possibly be reduced by interventions addressing the likely diagnosis of adult ADHD and his dependency on alcohol". 13. The judge also read character references, which spoke of the offender's good work record and the more caring and helpful side of his character, and a letter in which the offender expressed his remorse and indicated that he had for the first time come to acknowledge his alcohol dependency and his mental health problems. The offender said that he wished to take advantage of any help and professional guidance that he could obtain in prison. 14. The judge considered the Sentencing Council's definitive guideline for offences contrary to section 18 of the 1861 Act. He placed the case into culpability category A, on the grounds that it involved the use of a highly dangerous weapon and that it was a prolonged assault. He assessed harm as coming at the upper end of category 2. He identified as aggravating features the domestic setting and the previous convictions for domestic violence. He took into account the character references and accepted that there were a number of mitigating factors, namely genuine remorse; some understanding by the offender of the impact of the offence on Ms C; an awareness of the impact of his alcohol addiction; and a determination to address it. The judge observed: "I also take account of the fact that the psychiatric report reveals that there is potential cause. Work can be done on the causes of those triggers and also on the interventions to help to prevent anything like this occurring again." 15. The judge concluded that the appropriate sentence, before giving credit for the guilty plea, would have been eight years' imprisonment. He reduced that by 25 per cent to reflect the plea, and so imposed the sentence of six years' imprisonment, to which we have referred. He also made an indefinite restraining order to protect Ms C. 16. This court has been assisted by two pre-appeal reports prepared by probation officers. The author of the first, who had been able to interview the offender in prison, states that the offender has quickly attained enhanced status, has received no adverse adjudication, and has been recorded as doing good work. The offender expressed his motivation to engage in work to address his abusive and violent behaviour in the context of an intimate relationship, although, unfortunately, there are substantial waiting lists for the courses which he should undertake. 17. In the later report, specifically directed to the issue of dangerousness, the author concludes that the offender presents a high risk of serious harm towards Ms C and future partners. 18. On behalf of the Solicitor General, Mr Hearn submits that the sentence was unduly lenient. He does not challenge the judge's categorisation of the offence, but submits that the guideline starting point required a substantial initial upwards adjustment to reflect the presence of multiple culpability A factors and the high level of category 2 harm. It then required a further upwards adjustment to reflect the balance of aggravating and mitigating factors. The aggravating factors included not only those specifically mentioned by the judge, but also the particularly cruel threats which formed part of the prolonged assault. In addition, and notwithstanding that this point had not specifically been raised by prosecuting counsel below, Mr Hearn submits that the judge should have found the offender to be dangerous and should have imposed an extended sentence under section 279 of the Sentencing Code. 19. On behalf of the offender, Mr Goldsack, who represented him throughout the proceedings below, submits that the judge did take account of all relevant aggravating and mitigating factors, and that the sentence to which he came was an appropriate one in all the circumstances. Mr Goldsack concedes that the offender may not have been able to complain about a somewhat higher sentence, but submits that the sentence was not unduly lenient. He points out that although the court was entitled to take account of the surrounding circumstances, the actual offence for which the offender fell to be sentenced was the wounding alone. 20. We are grateful to both counsel for their very clear and helpful submissions. Having reflected on them, we have reached the following conclusions. We agree with the judge as to the categorisation of the offence. However, it fell into category A culpability because three of the factors listed in the guideline were present: not only the two identified by the judge, but also the fact that the offender had repeatedly held the cushion against Ms C's face. The use of what the guideline summarises as "strangulation/suffocation/asphyxiation" is a high culpability factor which must be given appropriate weight, even when other high culpability factors are also present. It is a particularly serious form of assault which is likely to, and in this case did, cause the victim to experience great terror and to fear death as she struggled to breathe. Further, as the judge rightly found, the level of harm caused was at the upper end of the category 2 range. In those circumstances, we accept Mr Hearn's submission that it was necessary to move substantially upwards from the starting point before considering aggravating and mitigating factors. 21. Although the judge referred to the domestic setting of the offence, he did not refer to the Sentencing Council's overarching principles guideline relating to domestic abuse. This makes clear, at paragraph 7, that the domestic context of offending behaviour makes the offending more serious, because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. With that in mind, and having regard to the previous convictions for offences of violence towards a partner, we take the view that the aggravating factors somewhat outweighed the mitigating factors. A further upwards adjustment from the starting point was accordingly necessary. 22. For those reasons, and with respect to the judge, we are satisfied that a sentence of eight years' imprisonment, before reduction for guilty plea, did not adequately reflect the seriousness of the offence. An appropriate sentence could not have been less than ten years' imprisonment, before a reduction of 25 per cent to reflect the guilty plea. 23. In addition, this was a case in which it was clearly necessary to consider dangerousness. The circumstances of the offence, set in the context of previous domestic violence, plainly called for consideration of the risk to any former or future partners. That need was reinforced by the feature of the assault to which Ms C refers, namely, the fact that the offender, although drunk, appeared to be calm and in control throughout. 24. Although a psychiatric report was available, it was not directed to the issue of dangerousness. In those circumstances, the court should have required the assistance of a pre-sentence report specifically directed to this issue, as this court now does. It should be noted that both the offence-specific guideline at step 5, and the domestic abuse guideline at paragraph 14, remind the court of the application of the dangerous offender provisions. It is unfortunate that this issue does not appear to have been considered in the court below. 25. In our judgment, having regard to the circumstances of the offence, the relevant previous convictions, the evidence of Dr Vandenabeele, and the contents now of the pre-appeal reports, there is at present a significant risk to members of the public – in particular, future partners – that the offender will cause serious harm by the commission of further specified offences. We recognise and commend the offender's expressed motivation to obtain help with his alcohol dependency and mental health problems, and we wish him success in that aim. But his own good intentions are not sufficient in the circumstances of this case to negate the risk. Further, it cannot, in our view, be said that imprisonment for a significant period will of itself sufficiently reduce the risk, even taking into account the fact that the offender would not be eligible for release on licence until he has served two-thirds of the custodial term. 26. We therefore accept the submission that an extended sentence, pursuant to section 279 of the Sentencing Code is necessary and appropriate. 27. For those reasons, we grant leave to refer. We quash the sentence below as unduly lenient. We substitute for it an extended sentence of ten and a half years, comprising a custodial term of seven years six months, and an extended licence period of three years. The restraining order made below remains in force. _________________________________ 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 1346' date: '2022-10-06' judges: - MR JUSTICE DOVE - MR JUSTICE KERR - 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: 2005/00774/A9 2005/00658/A1 Neutral Citation Number: [2005] EWCA Crim 2056 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Monday, 18 July 2005 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE GOLDRING MR JUSTICE WALKER R E G I N A - v - ZAKIR REHMAN GARY DOMINIC WOOD Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) MR J HARDY appeared on behalf of THE APPELLANT ZAKIR REHMAN MR S FARRELL QC and MR A MARRS appeared on behalf of THE APPELLANT GARY WOOD MISS S BENNETT-JENKINS appeared on behalf of THE CROWN J U D G M E N T Monday, 18 July 2005 THE LORD CHIEF JUSTICE: Introduction 1. Both these appeals against sentence are listed together so that this court may consider the application and interpretation of the mandatory minimum sentencing provisions in respect of offences committed contrary to section 5 of the Firearms Act 1968 ("the Firearms Act"). The provisions were inserted into the Firearms Act as section 51 A of that Act by section 287 of the Criminal Justice Act 2003 (the "CJA"). 2. Section 51 A of the Firearms Act has been effective since 22 January 2004. Section 51 A provides so far as relevant: "(1) This section applies where -- (a) an individual is convicted of -- (i) an offence under section 5(1) (a), (ab), (aba), (ac), (ad), (ae), (af) or (c) of this Act , or (ii an offence under section 5 (1A) of this Act , and (b) the offence was committed after the commencement of the section and at a time when he was aged 16 or over. (2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so. .... (4) In this section 'appropriate custodial sentence .... means' (a) in relation to England and Wales -- (i) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment .... .... (5) In this section 'the required minimum term' means -- (a) in relation to England and Wales -- (i) in the case of an offender who was aged 18 or over when he committed the offence, five years .... ...." 3. This appeal is primarily concerned with subsection (2) of section 51 A. More particularly it is concerned with what is capable of constituting "exceptional circumstances relating to the offence or the offender" for the purpose of section 51 A. Section 51 A of the Firearms Act sets out a series of circumstances in which it is unlawful to be in possession of, or purchase, or acquire, or manufacture, or sell, or transfer a list of different firearms. Of that list one which is selected for falling within section 51 A is (aba): any firearm which either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a muzzle-loading gun or firearm designed as a signalling apparatus. 4. The weapons, with which we are concerned, are ones in relation to which Parliament by section 51 A has signalled it was important that there should be imposed deterrent sentences. By "deterrent sentences" we mean sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider. 5. In the case of Mr Rehman his sole conviction was for having in his possession a firearm which fell within section 5(1) (aba) of the Firearms Act. In the case of Mr Wood it was count 9 on the indictment which involved such a weapon. When we come to examine the circumstances of Mr Wood's sentence, the fact that one of the weapons falls within the category, possession of which involves contravening section 5(1) (aba) of the Firearms Act, is a matter of considerable importance. The appellants' submissions 6. The first submission which is made by Mr Farrell QC on behalf of the appellant Gary Wood is that the mandatory minimum sentence of five years' imprisonment is incompatible with the European Convention on Human Rights. Mr Farrell submits that section 51 A requires the court to impose sentences that constitute inhuman and degrading treatment or punishment that contravenes Article 3 of the European Convention on Human Rights. Sentences which could result in arbitrary and disproportionate deprivation of liberty in violation of Article 5 or Articles 3 and 5 when read together. He submits that it is not possible to read down section 51 A so as to make it compatible with Mr Wood's rights under the Convention. Accordingly Mr Farrell seeks a declaration to that effect. Mr Farrell did not appear in the court below and it was only at a late stage that he was able to deliver a skeleton argument raising this point for the first time. 7. Mr Hardy, who appears on behalf of the appellant Mr Rehman (although he did not appear below) does not adopt this submission. As the contention is dependent on the proper interpretation of section 51 A, we do not propose to deal with Mr Farrell's first submission until we have set out our views on his next submission because it is only when we have set out our views as to how section 51 A(2) is to be interpreted that there can be any question of incompatibility. In those circumstances Mr Farrell has reserved his full argument on incompatibility until he has had an opportunity of considering this judgment. This has an advantage because if we were going to contemplate acceding to his first submission, we would adjourn so that the necessary notice can be given to the Crown under section 5 of the Human Rights Act and the relevant Criminal Procedure Rules. 8. The second submission upon which Mr Farrell relies is a submission which is supported by Mr Hardy on behalf of Mr Rehman. It is as to the proper interpretation of section 51 A(2), having regard to the obligation of the court under section 6 of the Human Rights Act 1998 and section 3(1) of that Act . These sections require the court not to act in a way which is incompatible with a Convention right and as far as it is possible to do so, to give effect to primary legislation in a way which is compatible with Convention rights. Insofar as it is necessary to do so, Mr Farrell and Mr Hardy both contend that it is necessary so as to achieve compliance with the Convention to give a wide interpretation to the reference to "exceptional circumstances" in section 51 A. 9. The third issue that arises on the appeal, which has been the subject of submissions by both Mr Farrell and Mr Hardy, is whether in each case the respective trial judges should have decided that these were circumstances relating to the offence or the offender to justify not imposing the minimum sentence of five years. In Mr Rehman's case (although this is not of direct relevance because of the period he has already served in custody) it is submitted that no custodial sentence should have been imposed. In Mr Wood's case it is submitted that a lesser sentence than five years' imprisonment should have been imposed. The way the matter is put on Mr Wood's behalf is particularly relevant when we come to set out the sentences which were imposed upon him. The Question of Interpretation 10. It is not necessary to set out the provisions of Article 3 and Article 5, but it is necessary to refer to R v Offen and Others [2001] 1 Cr App R 372 . In Offen the Court of Appeal considered a different mandatory requirement, a mandatory requirement which created an obligation to impose a life sentence under section 2 of the Crime (Sentences) Act 1997 when a person is convicted for a second time of a serious offence. By section 2(2) of that Act the court is then obliged to impose such a sentence unless it is of the opinion that there are exceptional circumstances relating to the offences or to the offender which justify it not doing so. There is a provision in that Act requiring the court to state, when it is of the opinion that there are exceptional circumstances, what those exceptional circumstances are. There is no similar provision relating to section 51 A. 11. In Offen the Court of Appeal adopted the general definition of the word "exceptional" given by Lord Bingham CJ in R v Kelly [2000] QB 198 . Having done so, the court went on to consider the impact of the Human Rights Act 1998 in regard to the statutory provision which the court was there considering. The court also considered R v Buckland [2000] 1 WLR 1262 , in which Lord Bingham CJ had stated at page 1269 that in that case on all the evidence it was safe to conclude that the defendant does not present a serious and continuing danger to the public such as could justify the imposition of a life sentence. We refer to those words of Lord Bingham in Buckland for two reasons. First, they show that he was focusing on cases requiring consideration of whether there are exceptional circumstances when there is a need to look at all the circumstance involved. Then it is not appropriate to look at each circumstances separately and to conclude that it does not amount to an exceptional circumstance. A holistic approach is needed. There will be cases where there is one single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional. 12. The second reason why it is necessary to have Lord Bingham's words in mind is because the provisions that were considered in Offen and in Buckland had a different objective from those that are being considered here. The statutory provisions in Offen and in Buckland were concerned with the importance of protecting the public against the dangerous activities of the particular offender. In the case of the Firearm Act the focus is different. So far as we can determine the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers. This makes the provision one which could be capable of being arbitrary. This possibility is increased because of the nature of section 5 of the Firearms Act. This is different from most sections creating criminal offences. In the majority of criminal offences there is a requirement that the offender has an intention to commit the offence. However, firearms offences under section 5 are absolute offences. The consequence is that an offender may commit the offence without even realising that he has done so. That is a matter of great significance when considering the possible effect of section 51 A creating a minimum sentence. 13. In Offen the court went on to deal with the general approach to the impact of the Human Rights Act on mandatory sentences. We draw attention to paragraphs 93-95 and 99 where the court said: "93. As to article 5, Mr Perry accepts that the overall purpose of the article is to ensure that no one is deprived of his liberty in an 'arbitrary fashion': Quinn v France (1995) 21 EHRR 529 , 548-549, para 42. He relies in particular on Weeks v United Kingdom (1987) 10 EHRR 293 . The significance of that decision was that the court considered the defendant's renewed detention after being released on licence was lawful and that the rehabilitation of offenders was a legitimate aim. (This country fell foul of article 5(4) because of the absence at that time of any procedure by which the lawfulness of the offender's detention could be determined by a properly constituted independent board. That defect has since been remedied.) 94. Not surprisingly, Mr Fitzgerald takes a very different view of the relationship between section 2 of the 1997 Act and articles 3 and 5. He stresses that life imprisonment is the most serious punishment that the courts in this jurisdiction can impose. It means that although a prisoner may be released, he still remains liable to be recalled. That liability is a permanent one. In addition, he contrasts the position of a life sentence prisoner with that of a prisoner sentenced to a determinate sentence. When a determinate sentence has been served, release is automatic. In the case of a life sentence prisoner, he will not be released after the end of the tariff period unless the Parole Board can be satisfied that he does not constitute a risk to the public for the future. This is the very object section 2 was designed to achieve in relation to those who would not be sentenced to life imprisonment before that section came into force. It is clear that as a result of section 2 , offenders are now being sentenced to life imprisonment before that section came into force. It is clear that as a result of section 2 , offenders are now being sentenced to life imprisonment when there is no objective justification for that sentence. Such a result can be categorised as being arbitrary and not proportionate. 95. In his speech in R v Governor of Brockhill Prison, Ex p Evans (No 2 ) [2000] 3 WLR 843 , 858, Lord Hope of Craighead considered the relationship between article 5 of the Convention and our domestic law. In the course of doing so, he recognised that the question would arise as to whether, 'assuming that the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate'. Here no question of bad faith arises. In addition, we recognise that there have been, and will be, cases where section 2 of the 1997 Act has, and will, operate in a proportionate manner. However, as the section has hitherto been interpreted, it can clearly operate in a disproportionate manner. It is easy to find examples of situations where two offences could be committed which were categorised as serious by the section but where it would be wholly disproportionate to impose a life sentence to protect the public. Whenever a person is convicted of an offence, there is always some risk that he or she may offend again. Equally, there are a significant number of cases in which two serious offences will have been committed where the risk is not of a degree which can justify a life sentence. We refer again to the very wide span of manslaughter, which is a serious offence within the Act . An unjustified push can result in someone falling, hitting his head and suffering fatal injuries. The offence is manslaughter. The offender may have committed another serious offence when a young man. A life sentence in such circumstances may well be arbitrary and disproportionate and contravene article 5. It may also be a punishment which contravenes article 3. .... 99. This does not mean that we are approaching the passing of an automatic life sentence as though it is no different from the imposition of a discretionary life sentence. Notwithstanding the interpretation resulting from the application of section 3(1) of the 1998 Act suggested, section 2 of the 1997 Act will still give effect to the intention of Parliament. It will do so, however, in a more just, less arbitrary and more proportionate manner. Section 2 will still mean that a judge is obliged to pass a life sentence in accordance with its terms unless, in all the circumstances, the offender poses no significant risk to the public. There is no such obligation in cases where section 2 does not apply. In addition, if the judge decides not to impose a life sentence under section 2 , he will have to give reasons as required by section 2(3) . Furthermore, the issue of dangerousness will have to be addressed in every case and a decision made as to whether or not to impose a life sentence." 14. Before proceeding further it is necessary to determine the meaning of section 51 A(2) in accordance with the ordinary principles applicable to statutory interpretation. This involves seeking to determine the meaning of the language used by Parliament in its statutory context. It is to be noted, as already pointed out, that part of the context is that section 5 of the Firearms Act creates an absolute offence. Secondly, the purpose of the provision is to ensure that absent exceptional circumstances the courts will always impose deterrent sentences. However, it is to be noted that if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent effect upon him. The section makes clear that it is the opinion of the court that is critical as to what exceptional circumstances are. Unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere. 15. The reference in the section to the circumstances of the offender is most important. We have no doubt that the fact that an offender is unfit to serve a five year sentence may be relevant, as is the fact that he or she is of very advanced years. This is necessarily to be read into the words used, otherwise a sentence may be inappropriately harsh and even fall within the language of article 3 of the European Convention. Finally, we emphasise what we have already referred to in this judgment, the importance of not dividing the circumstances into those that are capable of being exceptional and those which are not. 16. In our judgment, we do not regard this as being a situation where it is necessary to read the section down, relying on section 3 of the Human Rights Act 1998 so as to comply with the Convention. We consider that the words are clearly capable of being interpreted as complying with the Convention. This is an interpretation which is made easier by the fact that Parliament passed the provision as part of the 2003 CJA which was passed in the knowledge that the section had to comply with the Human Rights Act. Furthermore, it can be assumed that Parliament had the decision of Offen in mind when it selected the same language for the exception. There was a suggestion that in this case we might find it helpful to look at the statements of Ministers made both in Parliament and outside Parliament to assist us interpret the section. But in our judgment this is unnecessary and indeed would be inappropriate. It is clear in our judgment that, read in the context to which we have referred, the circumstances are exceptional for the purposes of section 51 A(2) if it would mean that to impose five years' imprisonment would result in an arbitrary and disproportionate sentence. The Individual Cases Zakir Rehman 17. Zakir Rehman appeared before His Honour Judge Joseph at the Croydon Crown Court on 14 January 2005. He pleaded guilty to an offence contrary to section 5(1) (aba) of the Firearms Act 1968 of having in his possession what was described as a Kimar Beretta venting handgun which was less than 60 centimetres long overall and with a barrel less than 30 centimetres long. It was a replica blank-firing handgun, but it was a type of handgun which, although a replica, could easily be altered so as to be capable of firing live ammunition. It is a type of firearm that has been used in the commission of many criminal offences by offenders who know that it has this capacity. 18. Mr Rehman was sentenced to five years' imprisonment. It is clear that the reason why he was sentenced to five years' imprisonment was because the judge considered that he had to impose the minimum sentence required by section 51 A because there were no exceptional circumstances in the case. 19. The facts are very straightforward. The appellant Mr Rehman is aged 24. He was a collector of models. He purchased the replica firearm via a French internet site. He did so in his own name; he used his own credit card and had it delivered to his home address which he shares with his parents. He intended to display it. He decided not to. He put it into a box under his bed and left it there. It was there when the police arrived on 5 November 2004. They had obtained a search warrant because they had information that Mr Rehman had ordered the firearm in question over the internet. Mr Rehman was clearly very easy to trace. He showed them where the gun was. He told the officers that he did not think it was illegal to own the gun. That is no defence, but it is very relevant when considering whether there are exceptional circumstances. In this case it was not contested by the Crown that Mr Rehman had every reason to believe that the gun was not one which it was illegal to possess. 20. When delivered, the gun came together with oil and a cleaning brush for its use. This presumably was because it can be converted. When interviewed, the appellant Mr Rehman said that he did not know that the gun could be converted. 21. Mr Rehman had a positively good character. He has a degree from Imperial College. He was working for Customs and Excise. His training was continuing. The judge heard from a senior executive officer in whose team Mr Rehman was. Their view of him is demonstrated by the fact that, even when this matter came to light, they did not suspend him. It was only when he was sentenced by the court that he lost his employment with them. Mr Spence, the officer concerned, was totally amazed that Mr Rehman was in this position. He had created a most favourable impression on those with whom he had come into contact. 22. It will be seen from Judge Joseph's sentencing remarks that, although counsel sought to argue exceptional circumstances on Mr Rehman's behalf, the judge was unable to conclude that they existed here. However, as the matter was advanced before the judge, reliance was not placed upon all the matters that could be urged upon his behalf because counsel took the view that certain of the circumstances were irrelevant. As we have already indicated, we consider that this approach was not the correct one, although that may not have been clear from the authorities which now exist in relation to the interpretation of section 51 A in particular, which from time to time tend to focus on a particular circumstance rather than the circumstances as a whole. Gary Wood 23. Gary Wood is aged 41. He is also of extremely good character. He was sentenced to a total of five years' imprisonment in respect of nine counts. Counts 1 and 2 charged possession of a prohibited weapon, contrary to section 5(1) (b) of the Firearms Act 1968 . Count 1 concerned a blank firing pistol and count 2 another pistol. He was sentenced to concurrent terms of five years' imprisonment on those counts because the judge was wrongly under the impression that they were counts to which section 51 applied. In fact that section does not apply to those counts, though the judge can be forgiven for making the mistake that he did, bearing in mind that counsel who appeared before him acted on the assumption that the section did apply. Counts 3, 4, 5 and 6 charged possessing a firearm without a certificate, contrary to section 1(1)(a) of the Firearms Act. In relation to that offences the appellant Mr Wood was sentenced to concurrent terms of twelve months' imprisonment. There is no appeal in regard to those sentences. Count 8 charged the shortening of a shotgun, contrary to section 4(1) of the Firearms Act. Again he received concurrent terms of twelve months' imprisonment. Count 9 was the offence to which section 5(1) (aba) of the Firearms Act applied. The firearm of which he was in possession was a single barrelled hammerless shotgun with a barrel less than 30 centimetres long. He was sentenced to five years' imprisonment in respect of that offence, that sentence to be concurrent with the sentence in respect of the first two counts. Finally, count 10 charged theft. In respect of that the sentence was one of eighteen months' imprisonment concurrent. 24. In relation to counts 1 and 2, as the judge was under the misapprehension to which we have referred, it is necessary for us to impose the appropriate sentence which would have been imposed but for the judge's error. We consider that the appropriate sentence is twelve months' imprisonment. That appears to have been the sentence which the judge would have had in mind if he had not thought that the minimum term was the appropriate sentence. We therefore quash the sentences of five years' imprisonment and substitute sentences of twelve months' imprisonment. 25. The facts in relation to Mr Wood's offences are as follows. As a result of an investigation conducted into a company which was selling imitation firearms over the internet, on 30 September 2004 the police went to Mr Wood's home. He was arrested and interviewed. During the course of the interview he indicated, as must have been apparent to the police, that he was a collector of weapons. There are photographs before this court which show the scale of his collection. It is true that most of the collection was secured in locked cabinets. But in the loft was the shotgun which had had its barrel shortened. Apparently it was a weapon that had been inherited by Mr Wood from his grandfather. 26. Count 10 related to munitions. Those munitions had been stolen at the time when Mr Wood was acting as a cadet instructor. He said that he intended to return the munitions in due course as he attended other events involving the cadets, but apparently they had become obsolete and so this could not be achieved. Altogether it took two days to search the appellant's house. All the weapons had been broken down as far as possible for safety reasons. Mr Wood clearly had a very considerable knowledge of firearms of the sort that were found in his home. 27. He had extremely impressive references. He was the manager of a surveillance company. He had carried out important work with Army cadets. He had provided help to the police. On one occasion he had confronted a violent criminal. Apart from these matters, he was a most responsible and impressive individual. 28. It is necessary to pay particular attention to the remarks of Judge Fish when sentencing him. He said: "It is not suggested in this case (and I would not come to the conclusion) that there was any significant danger at all that you yourself would have used any of these items for criminal purposes, but that of course is only one part of the danger that the Act tries to prevent. The other danger of course you did bring about and that is by simply having them in your possession in circumstances in which it was at least possible -- perhaps not very likely, but at least possible -- that they could have fallen into the wrong hands .... The very fact that they were in existence in your possession and therefore available fulfils one of the requirements or one of the fears of the legislation and I have found it extremely difficult to understand how you, of all people, could have allowed yourself to get into that position with your very long association with firearms and with the glowing references that I have had the opportunity of reading and rereading and I have no doubt that, in your training exercises (the training that you do of young people and perhaps of older people with your work colleagues) you emphasise time and time again how important it is to treat these sort of weapons with the greatest of respect and care and not have them available in any circumstances at all where they could be misused and yet that is what you did." Thereafter, the judge went on to indicate that the law required him to pass a mandatory sentence of five years' imprisonment. He said: ".... I have had to think long and hard about whether or not the matters that have been drawn to my attention do in fact amount to exceptional circumstances. There is of course much mitigation, which is not quite the same as exceptional circumstances; you pleaded guilty at the earliest opportunity, you were co-operative and helpful with the police; I have read all the other confirmatory information that indicates that you have a responsible attitude towards behaviour. But I have regretfully come to the conclusion that I cannot find that there are exceptional circumstances relative to the offence, or indeed exceptional circumstances relevant to you yourself, exceptional being the emphasis, that enable me to avoid the inevitable consequences of the legislation." The judge went on to impose the sentences to which we have referred, including those in respect of counts 1 and 2, in relation to which we have already allowed this appeal. Conclusions 29. Against that background we turn to see whether the sentence in the case of Mr Rehman in respect of one count is a sentence with which this court can and should interfere. In approaching that matter we are greatly assisted by the careful and helpful arguments advanced by Miss Bennett-Jenkins for the Crown. She was somewhat embarrassed by her late instructions in this matter, but she provided a most useful skeleton argument which she has supplemented. Both in regard to Mr Rehman, with whom the court is dealing at the moment, and Mr Wood, she accepted that, in properly applying the authorities which now exist in this area in regard to section 51 A in particular and to mandatory terms of imprisonment, subject to exceptional circumstances, these are cases where, looking at the circumstances as a whole, it would be proper to come to the conclusion that there exited exceptional circumstances which justified not imposing the minimum term. She says that this was a judgment to which the trial judge could properly come. 30. On the facts of Mr Rehman's case, which we have already set out, we have decided that the judge was wrong not to conclude that the case was one involving exceptional circumstances. The background of Mr Rehman was particularly important; but so was the fact that he had no knowledge of the unlawfulness of the one weapon that he had in his possession which contravened the provisions of section 5 of the Firearms Act and therefore resulted in the application of section 51 A. It is perhaps not the clearest case because it is not possible to identify one particular circumstance, but looking at all the matters that were relied upon by counsel who appeared for him in the court below and by counsel who appears for him today it falls on the right side of the line. Those matters are set out in the skeleton argument at paragraph 13 as follows: "(1) he pleaded guilty at the first opportunity; (2) he was a man aged 24 of hitherto good character; (3) he and his family were entirely co-operative throughout the search and arrest procedure. (4) he was an employee of HM Customs and Excise working as a VAT Assurance Officer, in which capacity he was a valued employee -- as is evidenced by the reference supplied and evidence given by his line manager, David Spence, and by the fact that he was not suspended or dismissed from his post after details of his arrest became known (though he has since been dismissed from his employment after commencing his custodial sentence); (5) It was common ground between the Crown and the appellant that: (a) the weapon was a blank firing replica purchased from France via the internet on or about 3 December 2003; (b) it had not been converted, and no blank ammunition was found with it or had been purchased or otherwise acquired by the appellant; (c) the weapon had not apparently been fired prior to its being tested following its seizure; (d) the weapon was found in its original wrapping under the appellant's bed, where he had placed it and kept it since he received it; (e) the police were led to the weapon via a search of the internet to identify persons who had purchased such weapons, and the appellant had evidently done nothing to disguise his identity as a purchaser. Consequently the police had obtained a search warrant under section 46 of the 1968 Act ; (f) it was apparent from the contents of his room that the appellant was a collector of items of memorabilia, including other models. He had not known, until after his arrest, that possession of such a weapon was illegal, and he had been under the impression when he purchased it that it was only a collector's model. He had not put it on display with his other items of memorabilia but had kept it under his bed so that it was out of the way; (g) furthermore, the appellant was not aware that the replica weapon was capable of being converted until he was told so in the interview following his arrest. It was obvious from the fact that the replica weapon was accompanied by oil and a cleaning brush that it was more than merely a model; nevertheless, the appellant was not aware of its capacity for conversion." In our view the circumstances collectively make it possible to come to the conclusion that this is a case where the court was not required to impose the minimum term. 31. We therefore have to decide what term would be appropriate in these circumstances. The appellant, Mr Rehman, has now served the equivalent of over twelve months' imprisonment. Suffice it to say that while we would regard a custodial sentence as necessary in this case so as to achieve the deterrent message that Parliament intended, a period of twelve months would have been sufficient. We therefore quash the sentence of five years' imprisonment and substitute a period of twelve months' imprisonment. That means he can now be released. 32. We turn to the case of Mr Wood. We have given his case most anxious consideration, as did the judge who sentenced him. As we have already indicated, there is a great deal to be said in the appellant's favour. But having regard to his situation and his circumstances, we have reluctantly come to the conclusion that we would not be properly applying the statutory provision imposed by Parliament if we interfered with the sentence of five years' imprisonment which was imposed on count 9. As the trial judge indicated, he of all people should have understood that this was not the sort of weapon which should have been in his possession. He did not take the action which he should have done to check whether it was lawful to possess it. The fact that he had committed the other offences demonstrates that he did not attach sufficient significance to the very strict statutory provisions which apply to the possession of firearms. The other offences are not ones to which section 51 A applied. But they showed on his part a carelessness with regard to the possession of firearms which prevents us treating the circumstances as exceptional. Accordingly, in relation to count 9 of the indictment to which he pleaded guilty, we have come to the conclusion that the sentence of five years' imprisonment must remain. Accordingly, the appeal will be dismissed with regard to count 9. The overall sentence that he will have to serve is one of five years' imprisonment. 33. We are grateful for the assistance that we have received. Mr Farrell, what happens now with regard to your incomputably argument? MR FARRELL: My Lord, may I be permitted a short period of time to consider the judgment? THE LORD CHIEF JUSTICE: Over the luncheon adjournment? MR FARRELL: Yes, that probably will be sufficient. THE LORD CHIEF JUSTICE: Yes, we will meet again at two o'clock. MR HARDY: My Lord, may I mention this? Since leave was granted I have had the benefit of instructions from the Registrar. Prior to it being granted, Mr Rehman did not benefit from a certificate for public funding. THE LORD CHIEF JUSTICE: Your certificate may be enlarged. MR HARDY: I am very grateful. Would your Lordship instead make an order for a defendant's costs out of central funds up until the Registrar assumed command? THE LORD CHIEF JUSTICE: If that is preferable, so be it. MR HARDY: If I may, my Lord. I am grateful. THE LORD CHIEF JUSTICE: Yes, so be it. ( Luncheon adjournment ) MR FARRELL: My Lord, can I thank you for the time we have been allowed? We have discussed the matter over lunch and we have decided that we do not wish to take the matter of compatibility any further given the way that you have interpreted "exceptional circumstances". I have not, of course, had a chance to speak to my client about this, but, whatever his instructions, I certainly take that view as a matter of law. THE LORD CHIEF JUSTICE: Thank you very much indeed. MR FARRELL: Thank you.

```yaml citation: '[2005] EWCA Crim 2056' date: '2005-07-18' judges: - MR JUSTICE GOLDRING - 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} ======

No: 200603267/B3 Neutral Citation Number: [2007] EWCA Crim 732 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 18th January 2007 B E F O R E: LORD JUSTICE MOSES MR JUSTICE NELSON SIR CHARLES MANTELL - - - - - - - R E G I N A -v- RAFFAEL HUGGINS - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR A SELBY appeared on behalf of the APPELLANT MR J HARRIS appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. Lord Justice Moses: This is an appeal, as of right, pursuant to section 13(2)(b) of the Administration of Justice Act 1960 against a finding of contempt. That finding was made as a result of what the judge believed was a contempt in the face of the court on 13th June 2006 at Croydon Crown Court. The matter took nine days to find its way to this court, and on 22nd June 2006 this court reduced the sentence of 28 days passed by the judge to one of seven days, but was unable to deal with the finding of contempt because the prosecution was not represented. This was unfortunate for two reasons. Firstly, the appeal should have been advanced much more speedily, and this is not the occasion to examine why there was that delay, and, secondly, it means that this court has already reached a conclusion as to the sentence by reducing it from 28 days to seven days. But in reaching that conclusion the court previously, on 22nd June, was careful not to reach any conclusion as to the propriety of the finding of contempt for the reasons it gave. Moreover, there is no particular significance in the order of seven days, by which the sentence was reduced, since by that time this appellant had already served nine days and it is plain from the words this court used that its intention was to ensure his immediate release. 2. The history of the powers of a court summarily to commit a person for contempt in the face of the court was dealt with in full by Lawton LJ in Balogh v St Albans Crown Court [1975] 1 QB 73 at page 92. It would be unwise to attempt to repeat that exegesis. 3. The Crown Court is a superior court of record -- see, as it now is but will no longer remain, section 45(4) of the Supreme Court Act 1981. It, therefore, has power to deal summarily with a contempt in the face of the court. It is a power conferred so that the court may protect the criminal justice process and all those who participate in it: witnesses, advocates, victims, defendants, and, particularly, the jury. Since that is the purpose for which the power is conferred that summary power must only be exercised where it is necessary to do so to achieve that objective. It must only be exercised where the contempt is clearly proved and where nothing else will do to protect the ends of justice: see R v Tamworth Justices ex parte Walsh [1994] COD 277 . 4. Judges must, even though they are from time to time compelled to act immediately, on the spur of the moment, to protect the court from any further damage, bear that principle in mind. But we do acknowledge that there will be occasions where it is necessary to act immediately to protect the court processes. Further, such protection may require an element of deterrence. Though often that will be a somewhat idle element since those who misbehave in the face of the court are often driven to do so when suddenly overwhelmed by emotion. Frequently the best means of protecting the court is by the quiet authority exercised by the judge. 5. In order to act consistently with the principle that immediate committal to prison is a measure of last resort judges must also have in mind the procedural principles identified by Lawton LJ in Moran 81 Cr App R 51 , particularly the principles that: firstly, the decision to imprison a person for contempt should never be taken too quickly, there should always be time for reflection as to what is the best course to take; and, secondly, that the judge should consider whether that time for reflection should extend over night. In the instant case that did not happen. 6. The jury had been considering a case of importing cocaine. The appellant is 19. He had, as it appears, only recently arrived at court because for some reason he had not learned that his mother was on trial. Having just arrived, he was there to hear her convicted of that serious offence and was in the public gallery when she was sentenced to 12 years' imprisonment. 7. The transcript shows, and the judge found, that on that sentence being passed, the appellant shouted out: "To kill your child, yeah, and you wouldn't do? Threatened to kill your family and you wouldn't do it? I think anyone --" The judge then intervened by which time the appellant had fled from the court. 8. The judge then ordered the detention of the appellant. He was detained. The judge then invited counsel for the appellant's mother to take instructions. It is plain from the judge's finding that he was concerned as to the manner in which those words were shouted and the gesture to the jury with which those words were accompanied. 9. What he said was: "It is very frightening for jurors when this sort of thing happens. I am going to remand him in custody ..." Then he said to Mr Selby: "... take some instructions. At the very least I shall expect an apology from him and I am not saying that I won't find some way of dealing with him as well. So I will give you ten minutes to speak with him." 10. Those ten minutes were granted to Mr Selby. He took that opportunity to take instructions and then proffered on behalf of the appellant what he described as the most sincere apology not only to the court, but to the ladies and gentlemen of the jury. He had not intended to threaten the jury. It was then explained to the judge that the appellant had been overcome with emotion, not having found out that his mother was on trial, but seeing her not only convicted but sentenced to 12 years' imprisonment. 11. The judge reached the conclusion that the appellant had shouted at the jury, as he put it: "... in an angry and in my judgment threatening manner, raising your arm towards them. You then rushed out of the court." 12. He repeated later, in his decision, that the appellant had shouted at the jury in a threatening fashion. He took the view that only an immediate sentence of imprisonment was appropriate and sentenced him to prison, as we have said, for 28 days. 13. The close of a trial is a moment of particular sensitivity and stress for a jury. Their anxieties in sitting in judgment on a fellow citizen can only be heightened if they are shouted at, or, worse, abused or threatened. We reject any notion that there can be no contempt where the trial has finished. 14. Mr Selby has contended that the conduct of the appellant was not a contempt. He says there was no intention to disrupt proceedings which were, in any event, concluded. We find no authority, still less any support, for the proposition that in order to prove a contempt it must be proved that the alleged contemnor intended to disrupt the proceedings. On the contrary, the description of the nature of a contempt given by Lawton LJ in Balogh at page 93 demonstrates the opposite. It is plain to us that this appellant was guilty of a contempt. The question as to what drove him to behave in that way is a separate matter. 15. The manner in which the words were spoken, however, and their effect on the jury is best appreciated by the judge. It is for him to assess the necessity for immediate action. We do know, now that we have had the opportunity, unlike the judge or counsel, to read the transcript, that the words themselves were not abusive. They did not in themselves offer any threat either to the judge or to the jury. It must, therefore, have been the manner in which they were said and the gestures with which they were accompanied which caused the judge to describe them as threatening. 16. It is of importance that this court respects the judge's own assessment of that which protection of the integrity of the trial requires. But in the instant case it is important to record that the trial had finished, although that is not to say that that means that no action needed be taken to protect the jury at all. But the trial had ended and the appellant had left the courtroom. 17. Since the power summarily to commit a person to prison must be a matter of last resort, it is incumbent on the judge to consider whether some lesser alternative to protect the court processes may be deployed. The judge must consider whether the need to protect the court process and those who participate in it, and in particular the jury, can be met by steps other than an immediate committal to prison. 18. In the heat of the moment there may be a perception in the judge of the need for speedy action and condign punishment, but the importance of the time for reflection is that it presents an opportunity to consider whether a less stringent course may be taken. Indeed, that time for reflection may itself avoid the need for any further action at all. 19. The need for careful consideration of a less severe sanction demonstrates the importance of the principle we have identified, as expressed in Moran , of the judge giving himself an opportunity for quiet reflection. If that opportunity is taken overnight, whilst the contemnor is in custody, as we have said, that very opportunity may itself provide the solution. We emphasise that the court has the power, as the editors of Archbold suggest, to detain a contemnor whilst it considers the proper approach to adopt: see R v Hill [1986] Crim LR 457. 20. In the instant case, the judge chose to act after an interval of only ten minutes. In our judgment, he was wrong to do so. He properly gave the appellant legal assistance, but, in our view, the judge did not give himself sufficient time to consider the alternatives to immediate imprisonment, or to consider the relevant principles accurately set out in Archbold. In so doing he erred as a matter of procedure. 21. We have already held that the appellant was guilty of a contempt in the face of the court. He spoke words in a threatening manner to the jury, who, even after they had delivered a verdict, were entitled to the protection of the judge so far as he was able. But we emphasise that that conclusion goes only to the question of whether there was a contempt. What matters frequently is not so much a finding of contempt, but rather an order for committal to prison consequent upon that finding. It by no means follows that a sentence of immediate imprisonment is necessary, even where a contempt has been committed in the face of the court. 22. This appellant was clearly and understandably upset at his mother's sentence of imprisonment for 12 years. The outburst can only have taken a few moments and, importantly, the appellant offered a full and immediate apology. 23. We take the view that the judge erred both procedurally and as a matter of substance in committing the appellant to prison at all. We think that those errors should be corrected by quashing the order for committal. The matter could and should have been dealt with by adjourning the case overnight with the appellant in custody whilst the judge considered the appropriate course to take. 24. It may be thought that our order is inconsistent with the views of this court in June, which did not have the benefit of the prosecution, but that court was compelled to act urgently so as to prevent a longer sentence being served by the appellant. It made clear that it was not pre-judging the question as to whether the order for committal should be quashed or not. But the question as to whether the order for committal should be quashed is of importance to this young man for the sake of his record. There was, in short, a contempt, but it was unnecessary to make any order for committal. We shall reflect that conclusion by quashing the order for committal.

```yaml citation: '[2007] EWCA Crim 732' date: '2007-01-18' judges: - LORD JUSTICE MOSES - MR JUSTICE NELSON - SIR CHARLES MANTELL ```

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

Neutral Citation Number: [2011] EWCA Crim 1461 Case No: 201100831A8 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHELMSFORD Mr Justice Nichol T20107164 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/06/2011 Before : THE LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE LEVESON and MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - ATTORNEY GENERAL’S REFERENCE No. 008 of 2011 Between : THE QUEEN Appellant - and - RONALD EDWARDS Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Edward Brown Q.C. for the Attorney General Mr Neil Fitzgibbon for the Respondent Hearing dates : 12 May 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson: 1. On 18 January 2011, in the Crown Court at Chelmsford before Nicol J and a jury, Ronald Edwards (who is 66 years of age) was acquitted of murder but convicted (effectively upon his own admission) of the manslaughter of his partner, Sylvia Rowley-Bailey (“the deceased”), who was aged 66 at the time of her death and who had been in a relationship with him for approximately 8 years. The basis for the conviction for manslaughter was by reason of provocation. Nicol J imposed a sentence of five years’ imprisonment. Her Majesty’s Solicitor General now seeks to refer the sentence to this court as unduly lenient pursuant to s. 36 of the Criminal Justice Act1988 . We indicated at the hearing that we granted leave. The Facts 2. The background can be summarised quite shortly. The parties had met in 2002 and, two years later, bought a house together. In 2004 the offender suffered a heart attack and, two years later, underwent a heart bypass operation. The deceased cared for him throughout this period but, at the same time, was overbearing, demanding and very hurtful. By 2009, the relationship had come to an end. Although it seems that they still occupied the same bed and study, they lived in separate sitting rooms and had discussed using separate beds. It was also suggested by the offender that he should buy his partner’s one third share of the house. 3. As the relationship deteriorated, neighbours heard the deceased constantly nag and belittle the offender. They heard arguments between the two but noted that those arguments were one sided (the deceased as the principal voice). The son and daughter of the deceased also gave evidence that they had experienced the deceased berating the offender and spoke of how their own childhood and their father’s life had been made a misery by the deceased. As to the offender, witnesses spoke of his usual unflappable and non-violent nature. 4. On 11 June 2010, following as a culmination of a long period of criticism and belittling conduct, matters came to a head. The deceased said that the offender could not use the bed that they shared and that he should buy a separate bed. She also said that she hated the building that he had bought and built for her in the garden, as she did the jewellery he had given to her as a birthday present: she said that she had sold it. She said that she could not wait for his mother to die so that he could inherit her money and buy her out of the bungalow. It was in these moments that the offender also felt his chest tighten and led him to fear that he was about to suffer a further heart attack. He went to the kitchen for a drink of water but was followed by the deceased who continued to be critical of him. He then picked up a knife. 5. The offender said in evidence that he could not remember the attack but it is clear that, having picked up a knife with a 13 cm blade, he followed the deceased to the study and attacked her whilst she sat at a desk. He slashed her several times with it and stabbed her 12 times, mainly to the head, neck and upper body. Some of the wounds went to the full depth of the blade; one blow caused the blade of the knife to buckle. The knife was left imbedded in the neck of the deceased neck. There was a defence wound to the forearm that indicated that the deceased had tried to ward off the attack; the deceased also suffered bruises and abrasions. The attack was described by the judge as “ferocious”. 6. The reaction of the offender is important. First, he telephoned a firm of (conveyancing) solicitors and spoke to them for 7 minutes and 48 seconds. That firm gave him the number of another firm. The offender spoke to a solicitor from that firm for 7 minutes and 4 seconds, before contacting the emergency services. The offender gave evidence that he spoke to the solicitor because he was worried about his position and that of his mother and daughters. In the telephone call to the emergency services he said, amongst other things, that she had gone "on and on and on at me for ages" and “we’ve had a row and I’ve just flipped out…..I just saw red.” The judge found that the offender expressed genuine remorse on the telephone to the emergency services, to the police and whilst giving evidence. Having offered to plead guilty to manslaughter, it was for that offence that he fell to be sentenced after the jury acquitted him of murder. 7. When passing sentence, Nicol J referred to the different level of sentences characterised by the Sentencing Guidelines Council for manslaughter based upon provocation and the distinction between immediate provocative conduct and the duration for which it lasted. He concluded that this case was one of low level provocation by words not deeds although it had been lasting for months and, on 11 June, was “the straw that broke the camel’s back”. In the circumstances, he concluded that he would have imposed a sentence of 8 years imprisonment, had it not been for the early stage at which the offer to plead guilty to manslaughter was made: thus, he imposed the term of 5 years imprisonment to which we have referred. 8. On behalf of the Solicitor General, Mr Edward Brown Q.C. placed the following aggravating features before the court. First, the offender used a knife in the attack. Secondly, the degree of provocation was low (by words and without violence) albeit having continued for months. The deceased did not present a threat to the offender who acted out of anger and frustration rather than desperation or fear. It was not suggested that the ferocity of the attack (which went to the issue of loss of control) should aggravate the offence. At the same time, Mr Brown accepted mitigating features in the form of the offender’s age, positive good character and poor health. Secondly, the attack was the spontaneous and his actions lacked premeditation. Third, the offender denied that he deliberately targeted the chest and neck of the deceased or that he had intended to kill her. Finally, the offender had expressed remorse for his actions (albeit that he did not call the emergencies services immediately) and, on 11 October 2010, had offered to plead guilty to manslaughter by reason of provocation, although this was never in fact tendered before the court. 9. Essentially, Mr Brown submitted that, in accordance with the guideline on Manslaughter by reason of Provocation issued by the Sentencing Guidelines Council, the learned judge should have started at a term of 12 years imprisonment (low degree of provocation over a short period) which it was then appropriate for him to reduce balancing the use of a knife against the lengthier provocation to which the offender was subject. He also argued that the discount from 8 years to 5 years by reason of the plea (amounting to over 37%) was excessive not least because he did not, in fact, enter a plea to manslaughter and, in any event, never had any defence to that charge. In the circumstances, these errors led to a sentence that was below the bottom of the range. 10. Mr Fitzgibbon (who appeared for the offender as he had before Nicol J) took issue with this analysis and argued that the sentence was not unduly lenient. He submitted that the degree of remorse was very high: the offender had broken down on several occasions when giving evidence. Further, the offender was generally a kind, phlegmatic man and the critical feature of the case was that there was no cooling off period: he had felt a heart attack coming on yet the deceased had continued to abuse him. The use of the knife was not an aggravating feature because the knife was to hand and he had lost his self control. As for the fact of the admission, it was clear from the transcript of the 999 call that the offender had admitted what he had done. Mr Fitzgibbon also referred to the contribution that the offender had made while in prison as well as his medical condition and his concern for the welfare of his mother and daughters. Analysis 11. The guideline on Manslaughter by Reason of Provocation applied to offenders being sentenced after 28 November 2005. Work began on the guideline before the Criminal Justice Act 2003 came into force but although the legislation is referred to, the guideline does not include any analysis of (or make reference to) the potential impact on sentences for manslaughter of s. 269(2) and Schedule 21 of the Act which provides the framework within which the court must approach sentences for murder. In R v. Porter [2007] 1 Cr App R (S) 115 , May LJ (as he then was) noted the disparity between the effect of a life sentence for murder and determinate terms imposed for those convicted of manslaughter and expressed the court “not satisfied” that the higher starting points prescribed by Parliament were of relevance to the issue of sentencing for manslaughter. In Attorney General’s Reference Nos 90 and 91 of 2006 (R v Richards & Botchett) [2007] 2 Cr App R (S) 31, the court considered a sentence for manslaughter in the course of a burglary (which, if the conviction had been for murder would have led to a 30 year starting point for the minimum term). Latham LJ observed (at para. 17) that the extent to which sentencing for manslaughter should in any way be equated with the sentence appropriate for murder was one which “calls for some caution”. 12. On the other hand, more recently, there has been a greater recognition that the significance of loss of life which, at least in part, is reflected in the approach prescribed by Schedule 21 , should be matched by a recognition of that fact in sentences passed in manslaughter cases albeit that the lack of intent, diminished responsibility or provocation was also of critical significance. Thus, in relation to manslaughter by reason of diminished responsibility, in R v. Wood [2010] 1 Cr App R (S) 2 , [2009] EWCA Crim 651 , a court of five judges, in which the Lord Chief Justice presided, considered how to determine the minimum term when imposing an indeterminate sentence. Lord Judge said (at para. 21): “There is no express statutory link between the guidance in schedule 21 of the 2003 Act and the principles to be applied to sentencing decisions in diminished responsibility manslaughter. Where diminished responsibility is established it serves to reduce the defendant's culpability for his actions when doing the killing, but the remaining circumstances of the homicide are unchanged. Specific features of the seriousness of the homicide, for example a double rather than a single killing, or the sadistic killing of a child may be common both to murder and diminished responsibility manslaughter. At the same time the mitigating features expressly identified in schedule 21 extend to what may approximate but not amount to the defence of diminished responsibility and provide an additional connection between the schedule and the defence. Finally, the culpability of the defendant in diminished responsibility manslaughter may sometimes be reduced almost to extinction, while in others, it may remain very high. Accordingly when the sentencing court is assessing the seriousness of the offence with a view to fixing the minimum term, we can discern no logical reason why, subject to the specific element of reduced culpability inherent in the defence, the assessment of the seriousness of the instant offence of diminished responsibility manslaughter should ignore the guidance. Indeed we suggest that the link is plain.” 13. Similarly, in cases of involuntary manslaughter, the same point has been made. In Attorney General’s Reference No 60 of 2009 (R v. Appleby and others) [2010] 2 Cr App R (S) 311, [2009] EWCA Crim 2693 , the Lord Chief Justice presided over another five judge court. Noting (at para. 3) the same “catastrophic result for the deceased and his family”, namely “the loss of a precious life”, he said (at para. 22): “If it is necessary to examine any sentencing decisions prior to Furby , and indeed prior to this judgment, they should be examined with the clear understanding that none of the decisions we have seen, … has proceeded on the basis which we have now addressed, that crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in schedule 21 of the 2003 Act , but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight. ” 14. A similar approach has been adopted in other cases (see, for example, involuntary manslaughter in a baby shaking, R v Burridge [2010] EWCA Crim 2847 and Attorney General’s Reference No 125 of 2010 (R v. Draper ), [2011] EWCA Crim 640 ). Finally, we refer to R v Thornley [2011] EWCA Crim 153 . In relation to manslaughter by reason of provocation, where death was caused with a knife, Lord Judge referred not only to this greater recognition of the relevance of Schedule 21 but also other changes since the guideline relating to the significance of knife crime by a generally and the impact of para. 5A of Schedule 21 (introducing a starting point of a minimum term of 25 years where a knife or other weapon is taken to the scene by a defendant intending to commit an offence or to have it available for use as a weapon). He said (at para 15): “It is clear to us from the developments analysed by Calvert-Smith J that the use of a knife, even in cases of manslaughter by provocation shall now be regarded as a more significant feature of aggravation than it was when the guideline was published. In the end everything depends upon the individual circumstances of each case: why and how the knife came to be picked up and eventually used.” 15. Lord Judge noted that even with a starting point (as in this case) of a determinate term of 12 years imprisonment, the range was from ten years to life which provided “an ample bracket which makes allowance for the changes and developments indicated by this court in its judgments or indeed by the legislation”. Such legislation obviously includes ss 54-55 of the Coroners and Justice Act 2009 which introduces new provisions relating to loss of control to replace the defence of provocation and which came into force for offences committed after 4 October 2010. Although by s. 54(2) of the Act, loss of control does not have to be sudden, there must be a qualifying trigger: see s. 54(1)(b). These consist of fear of serious violence from the victim or another and things said and/ or done constituting circumstances of an extremely grave character and causing the defendant to have a justifiable sense of being seriously wronged: s. 55. Thus, what appears to be a higher (and certainly a different) threshold than the common law has been created and will have to be taken fully into account in its impact on the culpability of the offence while, at the same time, the greater focus on the death of the victim as represented by the authorities to which we have referred equally falls to be considered. Just as important will be the adjustment to minimum terms in sentences for murder (a mitigating factor being provocative conduct albeit not sufficient to provide a partial defence in circumstances such as sexual infidelity), which might have generated a partial defence under the old law. At this stage, it is inappropriate to seek to elaborate upon the likely impact of these changes by reference to hypothetical situations although we anticipate that they will shortly fall for consideration. 16. Turning to the facts of this case, although we recognise the impact of prolonged, albeit low level provocation, it cannot be gainsaid that the deceased did not present a threat of any sort to the offender who could have left the house and then sought some other way of resolving the continuing tension that existed between him and the deceased. While we entirely accept that he did not bring the knife to the scene (as to which see the judgment in R v. Kelly; R v Bowers; R v Singh;R v Harding; R v Robinson; R v R; R v Roberts and R v Barr [2011] EWCA Crim 1462 ), he did take it from the kitchen and followed the deceased into the nearby study; his actions albeit spontaneous were not instantaneous. Because he was in the kitchen, the knife may well have been close to hand but he chose to pick it up, follow the deceased into the study and then attack her with it. For every offences of violence, the use of any weapon (in particular, a knife) will always be an aggravating feature and will serve to increase sentence. 17. In the circumstances, we agree with Mr Brown that the learned judge did not adequately bear these aggravating features in mind and, additionally, allowed too much credit for the guilty plea which was not formally entered at the first reasonable opportunity. Making every allowance for the offender’s remorse, his offer to plead guilty to manslaughter and the personal circumstances of which Mr Fitzgibbon so eloquently spoke and which are also contained in the letter from the offender placed before the court, in our judgment this sentence was clearly unduly lenient. After a trial, the sentence could not have been less than 10 years and the least sentence that can now be imposed on this reference is 7½ years. That is the change to the sentence which we now impose and, to that extent, this reference succeeds.

```yaml citation: '[2011] EWCA Crim 1461' date: '2011-06-16' judges: - 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} ======

Neutral Citation Number: [2010] EWCA Crim 1931 Case No: 201003925B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOLWICH His Honour Judge Shorrock T20090341 Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/08/2010 Before : LORD JUSTICE LEVESON MR JUSTICE HOLROYDE and MR JUSTICE SPENCER - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Appellant - and - SH Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Andrew Edis Q.C. for the Crown Mr Silas Reid and Mr Richard Doman for the Respondent, SH Hearing date : 29 July 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. On 12 July 2009, at the Crown Court at Woolwich, His Honour Judge Shorrock commenced the trial of this respondent on an indictment containing one count of causing racially aggravated fear or provocation of violence contrary to s. 4(1) of the Public Order Act 1986 and s. 31(1) (a) of the Crime and Disorder Act 1998 and there was a further count (added on that day as an alternative) of causing fear or provocation of violence, contrary to s.4(1) Public Order Act 1986 . The particulars of the first count were as follows: “[SH] on the 8 th day of September 2008 used towards [OA] threatening, abusive or insulting words or behaviour which demonstrated towards [OA] hostility based on [OA]’s membership or perceived membership of a particular racial group, with intent to cause [OA] to believe that immediate unlawful violence would be used against him, or whereby [OA] was likely to believe that such violence would be used.” 2. The case ended on the following day when, at the close of the prosecution case, the judge made good his previously expressed intention to withdraw the count of racially aggravated fear or provocation of violence from the jury. Pursuant to s. 58 (2) , (4)(a)(i) and (8) of the Criminal Justice Act 2003 (the “2003 Act”), the prosecution immediately formally notified him that his decision would be the subject of an appeal. 3. The result was that the ruling was of no effect: see s. 58(3) and (10) of the 2003 Act . In complete disregard of s. 58(11) (b) which provides that where the ruling has no effect, the judge may not take any steps in consequence of it, the judge proceeded to inform the jury of what he had done and, while making it clear that he could not say there was no case to answer on the alternative second count, told them that they could stop the case on that charge (which they did). He then directed the jury to return verdicts of not guilty in relation to both counts. He subsequently ordered the CPS to bear all the costs of bringing the prosecution both in the magistrates court and the Crown Court. 4. The CPS now seek leave to appeal the ruling that there was no case to answer in relation to the first count of racially aggravated fear or provocation of violence, and also to challenge both the direction to the jury that they could acquit of the alternative offence and the order for costs. These latter two submissions are complicated, in the first case, by the fact that this second count on the indictment was, in any event, out-with the jurisdiction of the Crown Court and, in relation to the second, by the issue of jurisdiction to appeal a costs order. In the event, pursuant to s. 57(4) of the 2003 Act , we grant leave to argue each of these issues and we have also sought to deal with a wider argument as to various aspects of the judge’s conduct of the trial as a whole. The Course of the Trial 5. From the outset, Judge Shorrock made plain his clear view of the case, namely, that the allegations were not worthy of trial in the Crown Court. His first words were “Are we really going to waste the judge and jury’s time on this?” He asserted that “the Crown Court is not the place to deal with this kind of matter” and when told that the CPS had several times reviewed the case, observed “so what?” He went on: “[T]his country is next to broke, we do not enjoy the luxury of being able to spend two days of a judge and jury’s time on this kind of thing. …[I]f the prosecution want to go ahead with this I cannot tell you whether this will survive a submission and there is a case to answer…. If it does not the Crown will be paying the costs. Do you want to have a word with those who instruct you? … …I feel particularly strongly as a taxpayer that my money is wasted on rubbish like this putting it in front of a jury…” 6. Mr McNeill, then appearing for the prosecution, did take instructions and made it clear that the trial would go on. It did proceed but the tone in which it was conducted was set although, until after the case had concluded, no adverse remark about the prosecution was made in the presence of the jury. 7. The evidence as it was called was straightforward and can be summarised briefly. The respondent was a regular visitor at his local Jobcentre where, to put it neutrally, there may been have a background of disagreement, if not conflict. On 8 September 2008, a Nigerian to whom we shall refer as OA (employed as a customer care officer at the Jobcentre concerned with assisting floor workers and providing security) said that the respondent approached him. He gave evidence that the respondent was angry and coming very close to the podium where he was standing. He swore at him, threatened to stab him and, on more than one occasion, called him a monkey; he continued to abuse him, going so far as to invite him outside, saying that he would be waiting. OA reported the matter to his manager who advised that the police should be called. In chief, OA was taken through the silent CCTV footage and identified the various points at which the events which he described happened. When cross examined, he agreed that the respondent’s ‘body language’ as evident on the CCTV was not that of an aggressive person but he said that his expression did not show calmness. He did not resile from his evidence and in relation to being repeatedly called a monkey, he said “that part is the great part I can never forget”. To put this allegation in context, OA made it clear that in his work he was frequently sworn at; he took the threat seriously because there had been five incidents at Jobcentres which were “all stabbing”. 8. After this evidence, in the absence of the jury, Judge Shorrock again argued about the merits of the case proceeding. He was aware of the contents of the statement of the next prosecution witness, PB, and indicated that he would assume she would come up to proof. He nonetheless said: “The pursuit of this case is a scandalous waste of money. I am going to withdraw count 1 from the jury whatever happens. At the moment, I am struggling to find a way to withdraw count 2 as well, I do not think I can…. I do propose to remind the jury that if they wish to acquit this defendant … they can do so. How anybody doing his or her job conscientiously could possibly have decided that this case was worth bringing to the Crown Court, I simply do not understand…. “ 9. It should be noted that the offence with which the respondent was charged in count 1 was triable either way and he had elected trial by jury. In any event, Mr Doman (then appearing for the Respondent), explained that he and Mr McNeill had discussed the indictment and had understood the counts were alternatives so that if the first count was withdrawn, he did not think the jury could be left simply with count 2. As we shall explain, counsel were correct in their conclusions but the judge asked “Why not?” and said that he would need some persuading. He then went on: “I am rather hoping that common sense is going to prevail, and, if it does not, as I say, I am going to make this as expensive for those who instruct you [counsel for the Crown] as I can.” 10. Once again, Mr McNeill, took instructions. The decision was that the case should continue and a witness to the incident, in the form of a Jobcentre Plus Adviser, PB, was called. She gave evidence to the effect that she was alerted by shouting and she spoke to the respondent, telling him to calm down. She said that he was angry, “very aggressive ... shouting” at OA. She heard the expression “you black monkey”. Again, she maintained her account when cross examined. 11. The remaining prosecution evidence consisted of the respondent’s arrest on 20 February 2009 (it being common ground that the police were called on the day of the incident) and his subsequent interview. He denied raising his voice, denied threatening to stab anyone and denied calling anyone a monkey. On the contrary, he suggested that OA had said to him that he was “that white shit from a few months ago”; OA had threatened him and would “break him in two”. He said that the witnesses were lying and denied any racist remark although it is clear that some complaint was pursued because he was banned from that particular Jobcentre for a while. 12. The case for the Crown had then concluded and the judge wasted no time. He sent the jury out, saying “I wonder if you would be good enough to wait outside just for five minutes. If it is going to take any longer than that I will let you go, but I do not think it will”. Without a submission being made, he indicated that he intended to withdraw the allegation of racially aggravated fear or provocation of violence. He said that he would allow Mr McNeill for the Crown to make submissions “in fairness to the prosecution and to protect myself” although it is clear that his previously expressed determination to withdraw the case and, indeed, the exchange at this time, made such submissions somewhat valueless. He accepted that there was evidence of fear or provocation of violence but then ruled that there was no case to answer in relation to the racial aggravation; he did not give a formal judgment although in argument he did ask the question of Mr McNeill: “[O]n your own case, you concede the defendant was angry and that there was personal animosity … As a matter of commonsense, given that background, how can this jury say they are sure that neither of those two elements influenced him but we are sure that he said what he said as a result of being totally or partially motivated by racial hostility? But it is common sense.” 13. Mr McNeill sought to explain the different ways in which the offence could be committed and referred to DPP v M (to which we shall return) arguing that if the defendant demonstrated racial hostility, that is enough. In the light of the judge’s approach, however, he immediately intimated an intention to appeal the withdrawal of the racially aggravated count, giving the appropriate statutory undertakings in the event that leave was refused or that the appeal failed. 14. The judge then called the jury back into court and explained that he was withdrawing the first count. He then went on to say that there was some evidence that would entitle them to convict on the second count and although it would be improper for him to withdraw the case, it was open to them “at any stage during the course of a case” to acquit a defendant and to say that they were not going to be sure of his guilt with regard to uttering threats that made the victim believe that he was likely to be the victim of violence. He invited the jury to consider whether they wanted to hear more and directed that if they did not, at his direction, they could find the defendant not guilty. He explained that if they did want to hear more, the case would continue, and it would be open to the defendant to give or call evidence if he wished to. He told them to retire for “two or three minutes” and when they returned said: “You have had that brief opportunity. .. Are there any of you who would like to hear more evidence? If anybody does, please do not be shy. I see that you want more – the one behind. Yes, very well, there we are.” Although these observations appear to suggest that at least one member of the jury did “want more”, we understand that this was not as it appeared to those present. Having been directed to find the respondent not guilty on the first count, the jury were asked by the clerk of the court (presumably on direction from the judge): “On count 2, do you find the defendant not guilty?” to which the foreman replied “Yes”. 15. After the ‘verdicts’, the judge described the case to the jury as “a scandalous waste of taxpayers’ money” and pointed to the jury’s reaction to that observation. . He presumably meant that their reaction suggested they were in agreement with him, although the basis upon which the jury could reach that conclusion is difficult to appreciate. They could at best have only a general perception of its gravity, which may well not have taken into account either the potentially vulnerable position of persons working in the public service, or the jurisprudential basis of the right to trial by jury. He sought the attendance of a representative of the CPS to enquire if there was a good reason why the prosecution had not been commenced in such a way that it could have been dealt with in the Magistrates Court, making it clear that if he did not get a satisfactory answer, he was going to direct that the entire costs of the case came out of the CPS budget, the aim of the exercise being to cause embarrassment or difficulty. 16. A CPS lawyer did attend and there was a lengthy exchange on the merits of the case and its prosecution. Judge Shorrock accepted that he could not say that the CCTV contradicted OA although it did not back him up. The judge expounded his view of the law, saying: “I understand what the judges in the House of Lords and the Court of Appeal have to say about the theory behind the matter, as it were. But it seems to me that using one’s common sense ... you have no chance of persuading a Woolwich jury to be sure that he said what he said as a result of hostility towards the man because of his race as opposed to personal dislike or loss of temper or both” 17. The judge acknowledged that he had “stopped the case legally, it might be said on slightly tenuous grounds” but repeated that there was not “a decent chance of a jury believing that those observations are made because of hostility towards that individual rather than dislike or a desire to humiliate or insult”. As the lawyer attempted to explain his understanding of the law, Judge Shorrock sought support from the jury’s apparent agreement with his view about the waste of money and said: “.....let us leave aside the academic debate on the subject. This comes down to common sense and, as I say, when you have a jury sitting there and one that was saying: “You are absolutely right. What is this doing here?” Then it is not just a Judge who has an ego that is too big for his head, who is saying: “Why am I supposed to be trying rubbish like this?” 18. When the lawyer again sought to explain his view of the relevant law (which was highly relevant to the wasted costs jurisdiction upon which the judge was then embarking), Judge Shorrock’s response was “Never mind the minutiae, the academic theory.” He then sought to formulate the test by which the CPS should decide whether to initiate or continue proceedings in these terms: “The whole point about a sensible prosecuting authority is that it uses its common sense and says to itself: ‘what are the real relative prospects of us persuading a Woolwich jury that this is what motivated him.’” 19. Pressed that motivation was not an element of the offence, Judge Shorrock said that it was “a matter of common sense” and that “of course it is” because “that is how a jury is going to look at it”. 20. The judge then said that he would give the CPS the chance to make written submissions as to costs but without more ado, made an order that the prosecution should pay the entire costs of this case both in the Crown Court and the lower court. He gave a judgment in these terms: “I formally find that while I can see that there was a public interest in prosecuting this case because, on the face of it, there was a perfectly tenable case to the effect that the defendant had made some thoroughly offensive, not to say insulting remarks to the complainant. But in my judgment, given what is seen on the CCTV footage and applying one’s common sense to how a jury is likely to approach the racial aggravation, there never was a realistic prospect of this case getting home in front of the jury on either limb. What should have happened was that this case should have been pursued in the magistrates’ court by virtue of section 4 or section 5 of the Public Order Act. This is a classic case, in my judgment, of where what is said is what matters and the effect it has on the victim, not why it was said. In an effort to encourage those who make the decision to prosecute in such cases to be more realistic and to deal with more cases at the lower court, I do say that the prosecution should pay the entire costs of this case both at this court and the lower court.” 21. When the CPS sought to take advantage of the opportunity specifically offered to make representations both as to the judge’s view of the law (relevant to impropriety) and issues of costs, a reply was sent on behalf of the judge to the effect that he was “not prepared to enter into correspondence with regard to individual cases already decided” and that any dissatisfaction should be ventilated “elsewhere”. The Ruling on Count 1 22. We have observed that the judge did not condescend to a ruling in relation to the question of there being a case to answer (which he had initiated) in relation to the racial aggravation. He did, however, provide the jury with an explanation which echoes the question which he posed during argument and, on the basis that he was accurately explaining his decision to the jury, must reflect his reasons. He said: “There is ample evidence that the defendant used words that were both offensive and insulting towards the complainant. If such words were repeated over a substantial period of time, then it would be open to you to [conclude] that they were said by a man who was wholly or in part motivated by hostility to the racial group to which the complainant belongs. However, this incident was, happily, short lived. It is also the prosecution’s case that there was bad blood between the defendant and the complainant and that for some reason the defendant was angry at the time of the incident. It therefore follows that if he said what he is alleged to have said, the defendant may well have been motivated not by hostility to members of the particular racial group that the complainant belongs to but by anger or by personal dislike. In the absence of any other evidence as to his state of mind I cannot see how you, the jury, could safely exclude the possibility that temper and/or personal dislike were the motivation for the use of such words if, indeed, they were uttered.” 23. The absence of formal ruling and the judge’s unwillingness (or at least his failure) to address and deal with the submissions of Mr McNeil means that he did not return to the words of the statute or focus on the words of the indictment. Thus, s. 28 of the Crime and Disorder Act 1998 (as amended by s. 39 of the Anti-Terrorism, Crime and Security Act 2001 ) (“ the 1998 Act ”) defines the meaning of the words racially or religiously aggravated in these terms: “ (1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if — (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim ’ s membership (or presumed membership) of a racial or religious group ; or (b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group. … (3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender ’ s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. ” 24. Mr Andrew Edis Q.C. (who appears for the CPS on this appeal) points to the fact that count one of this indictment had been amended at the start of the trial to make it clear (as is apparent from the Particulars of Offence set out in paragraph 1 of this judgment) that reliance was placed on s. 28(1) (a) (demonstration of hostility) and not on s. 28(1) (b) (motivation by hostility). Thus, he submits, the offence is committed if the offender demonstrates racial hostility for any reason at all and, indeed, by reason of s. 28(3) , whether or not there is some other reason for his hostility. 25. The difference is illustrated in RG v. Director of Public Prosecutions [2004] EWHC 183 (Admin) in which May LJ explained that s. 28(1) (a) was concerned with “demonstrated” racial hostility “not so much to indicate the offender’s state of mind as to prove what he did or said so as to demonstrate racial hostility towards the victim” (para. 13) whereas 28(1)(b) required proof that the substantive offence was “wholly or partly” motivated by racial hostility. 26. This analysis was adopted in Director of Public Prosecutions v. M [2004] 1 WLR 2758 , [2004] EWHC 1453 (Admin) which concerned an argument over payment for food with the Turkish chef of a takeaway kebab shop during the course of which the defendant used the words “bloody foreigners” and pushed the shop window causing it to crack. The justices doubted whether the word “foreigners” constituted a racial group but, more significantly for this case, found that the actions were the result of annoyance following the dispute over payment so that there was no case to answer in relation to racially aggravated criminal damage because hostility based on race had not been demonstrated. Reversing the decision, the Divisional Court held that the justices had ignored s. 28(3) which demonstrated that it was immaterial whether the hostility was based to any extent on any other factor; it was clear that the adjective “bloody” governing the words “foreigners” was capable of demonstrating hostility based on presumed membership of a group. Auld LJ concluded (at para. 34) that the justices: “…slipped from demonstrated racial hostility under s. 28(1) (a) on which the Director relied, to motivated racial hostility under s. 28(1) (b) on which he did not. That they did so, perhaps by a process of unconscious elision, is evident from their incorporation of the section 28(1) (b) test in the second clause of their first question to the court, namely whether they were correct to decide that the words “bloody foreigners” were not capable of “showing that the offence was motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.” 27. It is not, perhaps, irrelevant, that in his explanation to the jury, the judge fell into precisely the same error. The word “demonstrated” simply does not appear in his explanation; the word “motivated” does. Furthermore, the judge never sought to elucidate what s. 28(1) (a) of the 1998 Act meant. 28. Mr Silas Reid (who appears for the respondent with Mr Richard Doman who appeared at the Crown Court) submits that this authority has been overtaken by the decision of the House of Lords in R v. Rogers [2007] AC 62 . That case concerned another kebab shop and the same words (“bloody foreigners”) in the context of racially aggravated abusive or insulting words or behaviour. The ratio of the case is that “foreigners” did constitute a racial group although Baroness Hale confirms (at paragraph 6) that s. 28(1) (a) is concerned “with outward manifestation of racial… hostility” and s. 28(1) (b) with “the inner motivation of the offender”. In our judgment, it is difficult to see how it can be suggested that repeated angry references to a Nigerian as a ‘monkey’ or ‘black monkey’ do not generate a prima facie case of an outward manifestation of racial hostility and Mr Reid concedes that the words certainly are such as one would expect to be used by a racist. 29. Mr Reid suggests, however, that attention should be paid to paragraph 17 of the speech of Baroness Hale when she refers to the concern expressed in the Court of Appeal as to the width of the meaning of ‘racial group’ giving rise to a danger that aggravated offences may be brought where vulgar abuse included racial epithets that did not, when all the relevant circumstances are considered, indicate hostility to the race in question. She observed, entirely non-controversially, that if that is what the evidence suggested, the normal criteria for bringing proceedings would not be met. We agree: context is everything but, in our judgment, in this case, it was plain that there was material on which the jury could properly conclude that these circumstances went beyond vulgar abuse into an outward manifestation of racial hostility. Neither do we accept Mr Reid’s argument that “based on membership” is synonymous to “motivated by membership” which, following the language of Baroness Hale, is to confuse outward manifestation and inward motivation. 30. That this conclusion is clear is also confirmed by the approach of the Divisional Court in Johnson v. Director of Public Prosecutions [2008] EWHC 509 (Admin) which concerns words spoken angrily and aggressively by a black male to two white parking attendants “leave us alone, you’re always picking on us [ie the black community]” and “get up Dore to your white uncles and aunties [meaning leave the area and go to white areas]”, “this is our patch not yours [taken as a reference to that being a black area]”. In a judgment with which Swift J agreed, Richards LJ said: “The circumstances were such, in my judgment, as to make it reasonably open to the Crown Court to find that the appellant demonstrated racial hostility (to use a shorthand). The language used and the court’s findings as to the meaning of the words used make clear that the appellant was presenting the matter in racial terms by reference to colour. He was telling the parking attendants to leave the black community alone, to get out of the black area where they were and to go to white areas, and he was telling all this as a black person addressing two white people. The words were capable of demonstrating racial hostility. Whether the appellant was in fact demonstrating racial hostility by the use of those words, rather than simply demonstrating hostility towards the two parking attendants based on their job as parking attendants, was a question of fact for the Crown Court. But there was an entirely adequate evidential basis for the finding that was made as to racial hostility.” 31. In the same way, whether the repeated references to OA as a ‘monkey’ or ‘black monkey’ constituted a demonstration of hostility based on race (whether or not that hostility was also based, to any extent, on any other factor) or mere vulgar abuse unconnected with hostility based on race, was eminently a matter of fact for the jury to consider on all the evidence. The judge, on the other hand, demonstrated his confusion of language and did not apply the correct test. When giving judgment on the costs he sought to explain the error of the CPS in their charging decision by saying that what mattered was what was said and its effect “not why it was said”: in fact the charge focussed precisely on what was said (outward demonstration of hostility) and not why it was said (inward motivation). The judge was not simply making a decision that was “slightly tenuous” (to use his own words); he was quite wrong to conclude that because the jury could not exclude vulgar abuse as a factor, there was no case to answer. 32. We add that had the judge not manifested from the outset an intention or at least predisposition to find no case to answer, he may have reflected somewhat more on the law and considered rather more carefully Mr McNeill’s entirely accurate submission; had he done so, this error might have been avoided. We shall return to the judge’s focus on costs but it is equally worth pointing out that if he had not fallen into error, the substantial waste of resources on this appeal, to say nothing of any future costs, would also have been avoided. The Consequences 33. Having reached a conclusion on the question whether there was a case to answer, the judge failed to have regard to the effect of the Crown’s intimation of an intention to appeal that ruling. In order to examine what should have happened and the effect of what did, in fact, happen, it is necessary to start with the statute and consider the process step by step. By doing so, we hope that, in future cases when the question of possible appeal by the Crown against terminating rulings arise, some of the errors which manifested themselves in this case can be avoided. 34. The initiating provisions of s. 58 of the 2003 Act provide as follows: “(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment. (2) The prosecution may appeal in respect of the ruling in accordance with this section. (3) The ruling is to have no effect whilst the prosecution is able to take any steps under sub section (4 ). (4) The prosecution may not appeal in respect of the ruling unless— (a) following the making of the ruling, it— (i) informs the court that it intends to appeal, …. (8) The prosecution may not inform the court in accordance with sub section (4 ) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled. (9) Those conditions are— (a) that leave to appeal to the Court of Appeal is not obtained, and (b) that the appeal is abandoned before it is determined by the Court of Appeal. 35. There is no doubt (and the contrary is not suggested) that appropriate notice of an intention to appeal was given by Mr McNeill at an applicable time. Before considering the effect of that notice on the ruling given by the judge, the question should have arisen as to what should happen to the continuing trial. In that regard, s. 59 of the 2003 Act deals with expedition in these terms: “(1) Where the prosecution informs the court in accordance with section 58(4) that it intends to appeal, the judge must decide whether or not the appeal should be expedited. (2) If the judge decides that the appeal should be expedited, he may order an adjournment. (3) If the judge decides that the appeal should not be expedited, he may— (a) order an adjournment, or (b) discharge the jury (if one has been sworn). (4) If he decides that the appeal should be expedited, he or the Court of Appeal may subsequently reverse that decision and, if it is reversed, the judge may act as mentioned in subsection (3)(a) or (b). 36. This provision is not discretionary; it places a mandatory obligation on the judge to consider the issue of expedition specifically because a decision has to be made (which in a long trial may have serious repercussions) whether to await any decision of the Court of Appeal or to abandon the trial with the risk that if the appeal succeeds, it will have to start again. What the judge had no power to do was simply to carry on regardless. Neither is this unimportant in this case because the length of the trial (which had started at the end of the preceding day) would have inevitably meant the discharge of the jury, so generating a re-trial if an appeal was successful. Furthermore, proper consideration given to the second count would (or, at least, should) have caused all to realise that this count should never have been added to the indictment in the first place because it is summary only and not listed in s. 40(3) of the Criminal Justice Act 1988 as one of those summary offences which can be joined in an indictment within that provision. Section 31(6) of the Crime and Disorder Act 1998 specifically provides that on a trial on indictment for the racially aggravated offence contained within count 1, the jury may find a defendant not guilty of the offence charged but guilty of the basic offence (i.e. ‘count 2’). 37. Having failed to consider expedition, the judge did not consider the further provisions as to the impact of the expressed intention to appeal. Reverting to s. 58 of the 2003 Act , its terms are clear: (10) If the prosecution informs the court in accordance with sub section (4 ) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued. (11) If and to the extent that a ruling has no effect in accordance with this section— (a) any consequences of the ruling are also to have no effect, (b) the judge may not take any steps in consequence of the ruling, and (c) if he does so, any such steps are also to have no effect. … 38. Thus, the judge had no business directing the jury to acquit of count 1and if he had considered s. 58 of the 2003 Act , he would have realised that it was not open to him to do so and that the jury’s acceptance of his direction would be of no effect. This would have given him a second opportunity to consider what should happen to count 2 and, again, he then should have appreciated that if an appeal against his ruling was unsuccessful, the crown would be left with what was a summary only offence so that the entire proceedings would fall away. On the other hand, if he was wrong, the position would then have to be considered afresh. 39. Mr Reid argues that, whether count 2 was properly joined or not, there is no question of that offence being the subject of the appeal and, thus, it was open to the judge to continue the trial (particularly as he intended to invite the jury to exercise their power to stop it) and that, having done so, a valid verdict was entered. The basis of this argument is s. 60(2) of the 2003 Act which provides: “Proceedings may be continued in respect of any offence which is not the subject of the appeal.” 40. On the face of it, therefore, it is necessary to decide whether the continuation of the trial on count 2 is a consequence of the ruling on count 1 (and, by reason of s. 58(11) (c) of the 2003 Act is therefore of no effect) or whether the it is the trial of a separate offence which is unaffected by the appeal. In our judgment, at least one answer is to be found in s. 31(6) of the Crime and Disorder Act 1998 (to which we have referred above) which deals with racially aggravated public order offences and is in these terms: “If, on the trial on indictment of a person charged with an offence falling within subsection (1)(a) or (b) above [which include the offence of racially aggravated fear or provocation], the jury find him not guilty of the offence charged, they may find him guilty of the basic offence mentioned in that provision.” 41. We recognise that this provision is intended to permit the jury to convict of what is a summary offence not triable on indictment but, in our judgment, the fact that this summary offence was improperly included within the indictment is not to the point. It is clear that a jury can only consider the lesser offence after acquitting of the greater racially aggravated offence. Whether or not the Crown could have accepted a plea to the alternative, in the context of these circumstances it was necessarily antecedent to any decision on the public order offence contained within count 2 (whether included within count 1 or wrongly charged separately) that there was an acquittal on count 1. In this case, that acquittal is of no effect and the judge was not entitled to take any step as a consequence of that ruling (including the step of advising the jury of their right to stop the case or permitting them to enter a verdict if they wished to do so). Thus, this acquittal is also of no effect. It follows that the Respondent cannot be assisted by the submissions made to us on the basis of s. 60(2) of the 2003 Act . 42. In his skeleton argument, Mr Reid also advanced the argument that this appeal was an abuse of process because, in the hearing of the respondent, in answer to a question posed by the judge about what would happen “if the jury slings out count 2”, Mr McNeill responded that having considered it, he would have thought that no appeal would be pursued. Rightly, Mr Reid did not pursue that argument orally. Both Mr McNeill and the CPS were entitled to consider it and the concession was wrong in law. There is no question of abuse of the process of this court. 43. That brings us to the order for costs. Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 permits the court to order a party to pay costs to the other party where satisfied that costs have been incurred in respect of the proceedings as a result of an unnecessary or improper act or omission. The judge exercised this power observing that “the pursuit of this case in a way that made it inevitable that it was going to come to the Crown Court” which clearly meant that he found it to be unnecessary or improper to charge the racially aggravated form of the offence. Given that this conclusion is necessarily dependent and follows as a consequence (albeit not an inevitable consequence) of his decision that there was no case to answer, s. 58(11) of the 2003 Act also bites to render this decision of no effect. 44. In the circumstances, pursuant to s 67 of the 2003 Act , we reverse each of the decisions made by Judge Shorrock in relation to his ruling that there was no case to answer on the racially aggravated offence, his decision to permit the jury to return a verdict in relation to the alternative offence and his decision in relation to costs. All are of no effect. 45. Having reversed the ruling of the judge, in relation to each offence, this court must do any of the following (as prescribed by s. 61(4) and 61(8) of the 2003 Act ): “(a) order that proceedings for that offence may be resumed in the Crown Court, (b) order that a fresh trial may take place in the Crown Court for that offence, (c) order that the defendant in relation to that offence be acquitted of that offence. 46. There is no question of resuming a trial in this case but s. 61(5) prohibits making an order of acquittal “unless it considers the defendant could not receive a fair trial”. Although Mr Reid refers to the hardship that the respondent could suffer by having to undergo a second trial, he does not submit that a fair trial would be in jeopardy. Although we anticipate that the first step in any retrial will be to quash count 2, we do order a retrial. Wider Issues affecting Criminal Justice 47. The foregoing is sufficient to dispose of the narrow issues raised by this appeal but this case goes far wider than the specific allegation made against the respondent and raises an issue of law and practice in relation to inviting a jury to stop a case and, even more serious, issues of real importance to the administration of criminal justice in connection with the boundary between the role of the CPS and the judiciary in the prosecution process and the relevance of arguments as to resources both of which clearly concerned this judge. Those issues having been ventilated both in the skeleton arguments and orally, we consider it appropriate to deal with them. Inviting the Jury to Stop the Case 48. After OA had given evidence, Judge Shorrock candidly observed that he was “struggling to find a way to withdraw count 2” and made it clear that he would remind the jury that, if they wished to do so, they could acquit without more. That is what he did and his explanation focussed on his approach to the evidence. In the light of what he had said throughout the case, however, it would not be surprising if an observer who had heard his various exchanges concluded that he did so, at least in part, because he thought the case was “waste [of a] judge and jury’s time”, “rubbish”, and that his money as a taxpayer was “being wasted on rubbish like this”, rather than for any other reason. 49. Although the common law recognised the right of a jury to acquit an accused at any time after the close of the prosecution case, modern authorities disapprove of the practice. In R v. Falconer-Atlee (1973) 58 Cr. App. R. 348 , it was said by Roskill LJ to be wrong for a judge who was not prepared to stop the case himself to cast that responsibility on to the jury. Similar remarks were made in R v. Kemp [1995] 1 Cr. App. R. 151 rejecting criticisms of Falconer-Atlee articulated in the 1993 edition of Archbold. Kennedy LJ also expressed the court’s disapproval of the practice in R v. Speechley [2004] EWCA Crim 3067 and all the authorities were reviewed in R v. C & ors [2007] EWCA Crim 854 in which the court (per Gage LJ) considered it strongly arguable that the practice could not survive Article 6. He identified the dangers involved in a judge telling a jury that it has a right to stop a case in a lengthy passage (at para. 49) which is worthy of repetition: “First and foremost this practice involves the jury in making a decision which will affect the future conduct of the trial without, as happened in this case, the benefit of speeches from all counsel or any legal directions from the judge. Secondly, the nature of the decision which the jury is asked to make is to decide whether or not the prosecution witnesses may be capable of belief. In other words the jury must reach a provisional conclusion. However, there is a risk that they may go further and decide at that stage that the witnesses are not just capable of belief but they are indeed telling the truth. Such a provisional conclusion, once reached, maybe very difficult to displace. Thirdly, as was explained in Kemp , juries are often keen to register independence and may react against what might be perceived to be pressure from judge to acquit a defendant. Fourthly, even though a judge may strive to avoid inviting a jury to acquit, a practice which has always met with disapproval, it may be very difficult to avoid giving that impression rather than simply informing a jury of its right to acquit, the latter conforming with the old practice before it also was disapproved. As the court said in Kemp “It may not be always very easy to distinguish between an invitation to acquit and a mere intimation of a right to stop the case”. Fifthly, this practice is inherently more dangerous when a number of defendants are involved and the factual evidence is complex. Sixthly, it is unfair to the prosecution when it is given no opportunity to address either the judge or the jury and correct a mistaken impression of its case. The same applies to defendants, albeit in all such cases, the presumption will be that the judge has only adopted this procedure in order to obtain, more quickly, verdicts favourable to the defence. Seventhly, there may be particular dangers when as in this case the defence are contemplating not calling any evidence. Eighthly, since the coming into force of the provisions of s.58 of the Criminal Justice Act 2003 the prosecution has a right of appeal against a determinative ruling of a judge but will have no right of appeal against an acquittal by a jury following a judge informing them that they have a right to stop the case.” 50. There is also another reason which bites if the jury should stop the case. Although arguments have always been articulated as on the basis that fairness must be visited both on the defence and the prosecution, fairness to the prosecution is now well recognised as requiring a proper focus upon the legitimate rights and interests of victims and witnesses. Once there is a case to answer, they are entitled to know that the jury has heard the case through to its conclusion culminating in a fair analysis of the issues from the judge. The few words offering the jury the opportunity to stop the case do not provide this and can only be approached by the jury on the basis of the broadest of broad brushes. In this case, the judge allowed the jury “two or three minutes” with the clearest indication to acquit (“you may think ... that you are not going to ever be in a position where you could be sure of his guilt with regard to uttering threats that made the victim believe that he was likely to be the victim of violence”). In our judgment, he was wrong to do so: if one identifies OA or the witness BP as the observer mentioned in paragraph 48 above, it would not be surprising if they felt that, insofar as the judge had ruled that there was a case to be answered, he had not provided a real opportunity for their evidence properly to be considered. 51. This is not the case in which to go further than the authorities have hitherto decided although we do echo and endorse the views expressed by this court in the cases set out above. Without concluding that the judge so acted in this case, we add only that it would be to fall into serious error to invite the jury to take such a step because of a perception that the case was not worthy of the expense of jury trial notwithstanding that Parliament has legislated for just such a course. To do so would only serve to encourage those charged with the least serious either way offences to elect trial in the hope of such a favourable outcome. The Duties of the Crown Prosecution Service 52. An important aspect of this case is its manifestation of the way in which Judge Shorrock perceived the CPS and the exercise of its statutory function. Neither is it the first occasion on which he has expressed his displeasure at the way in which the CPS has discharged its duty. In R v. C, M and H [2009] EWCA Crim 2614 , at an adjourned plea and case management hearing, when the CPS had failed to produce and serve CCTV evidence, Judge Shorrock demanded that the trial begin there and then; counsel was obliged to offer no evidence (not unsurprisingly, none then being available) and the judge also refused to allow any adjournment for consideration to be given to an appeal. The CPS thereafter failed to comply with s.58(8) of the 2003 Act and this court determined that there was no jurisdiction to hear the appeal. Albeit obiter , the court went on to conclude, however, that the judge’s approach was unreasonable as was his refusal to allow any adjournment. Furthermore, on the very same day that the judge was dealing with the present trial, this court was hearing argument on and then reversed Judge Shorrock’s decisions in three cases in which he had quashed indictments in prosecutions which he did not believe ought to have been commenced by the CPS so as to bring them to the Crown Court: see R v. FB, R v. AB, R v. JC [2010] EWCA Crim 1857 . 53. It was sufficient in the latter trilogy of cases for this court to conclude that the judge had no power to take the course that he did. This case, on top of those, demonstrates that it is appropriate to look more fully at the respective responsibilities of the CPS and the judiciary. In that regard, the starting point is the Prosecution of Offences Act 1985 (“ the 1985 Act ”). Thus, it is the duty of Crown Prosecutors (and others with appropriate legal qualification) employed by the CPS to discharge the powers of the Director of Public Prosecutions as to the institution and conduct of criminal proceedings: see ss. 1(6) , 3(2) and 5 of the 1985 Act . Further, in his annual report to the Attorney General, to be laid before parliament, the DPP shall set out the provisions of the Code which is mandated by s. 10(1) of the 1985 Act in these terms: “(1) The Director shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them — (a) in determining, in any case— (i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or (ii) what charges should be preferred; and (b) in considering, in any case, representations to be made by them to any magistrates’ court about the mode of trial suitable for that case. 54. Underpinning that Code is the twin test that prosecutors must be satisfied both that there is sufficient evidence to provide a realistic prospect of conviction and that prosecution is required in the public interest. Standing to support the considered approach to these issues is a considerable body of guidance published by the CPS on its policies in a wide number of areas including racist and religious crime. It is not necessary to detail that policy in relation to this case: it is sufficient simply to say that it exists and that the responsibility for the exercise of the discretion which it provides falls to the DPP and, through him, the CPS. 55. The judiciary does not superintend the performance of this duty. Both the prosecution and the defence are entitled to a fair trial conducted in accordance with the law, with judges exercising case management responsibilities bearing fully in mind the overriding objective to deal with cases justly (which includes acquitting the innocent and convicting the guilty and dealing with the prosecution and defence fairly: see paragraphs 1.1(1) and 2(a) and (b) Criminal Procedure Rules 2010). 56. Take this case. A public servant working in a Jobcentre, with experience of having been abused and with knowledge of stabbing incidents having taken place at Jobcentres, complains that a man has sworn at him, threatened him with stabbing and racially abused him. His evidence of the racial abuse is supported by another public servant and (to use the judge’s phrase) the CCTV is not inconsistent with this evidence. The CPS decides to charge the offence of racially aggravated fear or provocation of violence in respect of which (as we have found) there is a case to answer. That charge, although entirely suitable for summary trial, carries with it the right in the respondent, contained within the legislation, to elect trial by jury: he does so and so the case eventually comes on for trial. 57. To describe the case as “rubbish”, as the judge did both before and after the trial is improperly to demean the case and the witnesses who support it. To reject the views of judges of this court and the House of Lords as “the theory behind the matter” and require the CPS to “leave aside the academic debate” is to reject the basis upon which the court is required to conduct any trial in accordance with the law. Further, it was not for him to express a view that a Woolwich jury would not convict (on which see R v. Chairman of Middlesex Quarter Sessions ex parte D.P.P. [1952] 2 QB 758 per Lord Goddard CJ at 767). Finally, to concentrate upon his perception of common sense and his views of the response of a Woolwich jury, so as to suggest re-defining the test which the CPS should apply to cases in Woolwich is to go far beyond his legitimate remit. 58. It goes further. The judge also suggested (see paragraph 20 above) that what should have happened was that the case should have been pursued in such a way as only permitted summary trial. In other words, the alleged demonstration of racial hostility should have been ignored in order to deprive the defendant of his right to elect trial by jury. In this particular case, where no summary only alternative which included the element of racial aggravation existed, that suggests that the CPS should have indulged in deliberate undercharging for the oblique motive of avoiding a Crown Court trial. Further, the judge’s views were underlined by a distinct threat in relation to costs both at the beginning of the case and after the first witness (with the further threat “I am going to make this as expensive ... as I can”). Then, having intimated that he would allow 7 days for written representations as to costs, the judge immediately made the order “to encourage those who make the decision to prosecute in such cases to be more realistic and to deal with more cases at the lower court” which is not a justification which can be supported. Finally, in a manner that can only be described as off-hand, if not rude, the judge refused to consider careful and restrained submissions when they were made in accordance with the permission that he had granted. 59. None of this behaviour falls within the appropriate exercise of the judge’s authority to conduct cases in accordance with the law, following the overriding objectives identified in the CPR. Given that the judge was wrong as to the proper interpretation of the law and the CPS were right, we do not lengthen this judgment by analysing the circumstances in which it is appropriate to order the CPS to pay costs; suffice to say, they did not arise here. 60. We must make it clear that we do not suggest that a judge has no right to express his views about a proposed prosecution or about the way in which the CPS should exercise the discretion vested in it by Parliament. There is a long tradition of judges doing just that and of the CPS reconsidering the position when they do; in our experience, both at the bar and on the bench, proper and appropriate respect has always been paid to any expression of judicial views. Judge Shorrock, however, went beyond moderately expressing his views. He sought, quite wrongly, to impose them in a way that paid no attention to the fact that it is the CPS in which the statutory discretion is vested. He did so because of his view about the use of resources and it is to that topic that we now turn. Resources 61. Underpinning all Judge Shorrock’s concerns in this and other cases have been the limited resources that are available and the ever increasing burden of the work in the Crown Court. As can be demonstrated in this case, the concern about the burden of work and the length of time that straight forward cases are taking to come on for trial is entirely justified. Thus, this allegation dates back to 8 September 2008. The respondent was arrested on 20 February 2009 (the delay being caused, as we understand it, for reasons connected with the recovery of the CCTV). The respondent elected trial and, because of the state of the lists, this short matter (which would have taken a day although it only started in the very late afternoon of the first day) did not commence until 12 July 2010. Custody time limits mean that priority must be given to custody cases and, with increasing financial pressure on the courts, the backlog is likely to increase. Resources may, indeed, need to be focussed differently. 62. It is important, however, that judges do not overstep the mark. Of course, every judge has a duty to ensure that trials are conducted as efficiently and expeditiously as possible. The Criminal Procedure Rules exist for that purpose and there are ample powers available to the court to do so. That duty does not, however, extend, to challenging the principles of law and criminal process laid down by Parliament. To make this point, we need do no more than repeat the remarks of this court in R v. FB, R v. AB, R v. JC ( supra ) which I expressed in these terms (at para. 34): “We recognise these [ever increasing financial] pressures only too well and recognise also the need for every court to be vigilant so as to ensure that court resources are used as efficiently, as expeditiously and as effectively as possible. It is not, however, for judges to short circuit or ignore well established principles of law in the name of efficiency or to seek to prevent prosecutions properly brought to the Crown Court whether by election for trial or otherwise, from being pursued. Whether steps should be taken to limit the extent to which any particular type of case should be tried by jury is for Parliament.” 63. There is one final point to be made. Having described the prosecution as “a scandalous waste of money” in the presence of the jury, when later challenging the CPS lawyer who attended at his request, the judge sought to use the jury’s apparent agreement with his view as support for the propositions that the case was bound to fail and a waste of resource: see paragraph 17 above. It is not in the slightest bit surprising that they should have that view. First, they had heard the judge (wrongly) reject an important part of the Crown’s case and describe it as he did. Secondly, the jury would almost inevitably have attended for jury service expecting (perhaps because of what they had seen on television or for other reasons) that they were giving up their time to try a case of greater gravity than this. On the other hand, it was the judge’s task to explain that Parliament had specifically provided that this type of case could be tried by a jury and that, however lacking in gravity they perceived it to be, it was important to those involved and to the public. Thus, it deserved their respect and their full attention; that, after all, was the effect of the oath that they had taken. Conclusion 64. Having reversed the decisions of the judge and found no reason why the respondent could not receive a fair trial, we declare the acquittals of no effect and order that a fresh trial be conducted in the Crown Court at Woolwich before a different judge, although as we have said, we have no doubt that count 2 will be quickly quashed as in excess of jurisdiction. Whether the CPS will review their decisions before commencing that trial, in the light of all the evidence and what has happened, is a matter for them. Whatever the result of any such decision or any trial, however, it will be a demonstration of the system operating appropriately.

```yaml citation: '[2010] EWCA Crim 1931' date: '2010-08-03' judges: - LORD JUSTICE LEVESON - 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: [2013] EWCA Crim 2498 Case No: 201205201 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 6th December 2013 B e f o r e : LORD JUSTICE JACKSON MR JUSTICE HOLROYDE HIS HONOUR JUDGE MILFORD QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v MARTIN JOHN BUNCH - - - - - - - - - - - - - - - - - - - - - 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 N L Lithman QC appeared on behalf of the Applicant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE HOLROYDE : On 14th August 2012 in the Crown Court at Chelmsford this applicant, Martin Bunch, was convicted of the murder of Jeanette Goodwin. He was subsequently sentenced by the trial judge, His Honour Judge Gratwicke, to life imprisonment with a minimum term of 27 years less days spent on remand in custody. His application for leave to appeal against his conviction was refused by the single judge. He now renews that application to the full court. The court is grateful to Mr Lithman QC, who represented the applicant at trial, for his submissions on the applicant's behalf today, which he has made pro bono. 2. The facts can, for present purposes, be very briefly stated. The applicant and the deceased had had an affair. It was the prosecution case that the affair had ended by about late 2010. There was evidence that in early 2011 the applicant had made phone calls and sent text messages to the deceased in threatening and abusive terms. There had been several incidents, one of which had resulted in the applicant's conviction for an offence of causing criminal damage at the deceased's home. The police had been called because of the applicant's behaviour in another incident. 3. On the afternoon of 24th July 2011 the deceased was with her husband in the garden of her home. The applicant, who was at that time living with his mother, suddenly appeared in the garden. The deceased went into the house to activate a panic alarm. The applicant followed her and almost immediately attacked her with a knife which he had brought with him from a set of similar knives at his mother's house. He stabbed the deceased more than 20 times, principally in the upper chest and the arm, and he inflicted a total of 36 sharp wounds. The nature of the attack and the level of force used in the stabbing plainly pointed to an intention to kill, or at least to cause really serious injury. 4. There was overwhelming evidence that it was the applicant who had fatally attacked the deceased. A short time before the killing he had angrily complained to his mother that the deceased would not talk to him and had said that he was going to kill her. The evidence of the deceased's husband was that at the time of the fatal attack the applicant said something like, "I told you I would kill her". A footwear impression matching the applicant's shoe was found in the deceased's blood at the scene. After the attack the applicant returned to his mother's house, taking with him the knife which was stained with the blood of the deceased. He admitted the stabbing to his mother, his sister and a friend of his sister and expressed the hope that his victim would die. 5. Despite all that, the applicant denied that he had gone to the deceased's house and denied that he had stabbed her. His defence was that he had no recollection of that afternoon because he had drunk a great deal of alcohol and had used some cocaine, but that he would not have hurt the deceased and played no part in her death. He cynically suggested that the deceased's husband must have killed her. The husband, widowed and blameless, was cross-examined to that effect. 6. In the alternative to that defence, it was argued on the applicant's behalf that if he had killed the deceased, he had done so when intoxicated to such an extent that he lacked the intention necessary for murder and should be convicted only of manslaughter. Evidence was given by witnesses for the prosecution and for the defence as to the extent of the applicant's drinking on and before the day of the killing. The gist of the evidence given by the applicant and by witnesses called on his behalf was that he had become depressed as a result of a series of misfortunes which had befallen him and his family since 2008, and had become a heavy drinker. 7. However, the applicant called no medical evidence as to whether he was physically dependent upon alcohol. A physical dependence upon alcohol, such as to make the consumption of alcohol involuntary, must be distinguished from voluntary intoxication, however frequent or heavy. The only medical evidence on that topic came from a consultant psychiatrist called by the prosecution, Dr Carr. Her clear opinion was that there was no evidence of physical dependence on alcohol, that the applicant had not been suffering from a mental disorder at the time of the killing and that there was nothing to suggest an abnormality which would impair his mental functioning. The jury learned during cross-examination of the applicant that he had been seen by three other psychiatrists but none was called as a defence witness. 8. The sole ground of appeal is that the judge was wrong to refuse to leave to the jury the partial defence of diminished responsibility. Mr Lithman submits that the absence of medical evidence to support that plea did not preclude the applicant from advancing the defence on the basis of such evidence as had been adduced before the jury. In this regard Mr Lithman relied on evidence that a doctor who had seen the applicant a few days before the killing had referred in a note to the applicant being "obviously an alcoholic"; but the doctor concerned gave evidence that he had used that phrase only to mean that the applicant was drinking far too much. Mr Lithman also relied on the evidence of a mental health nurse who spoke of the applicant's heavy drinking and told the jury that the applicant was prescribed both anti-depressants and a drug to suppress his craving for alcohol. However, this witness described the applicant as a binge drinker, and she gave evidence that on 18th July the applicant told her he had not been drinking for seven days. Other witnesses also spoke of binge drinking. The applicant himself in his evidence denied that he was dependent on alcohol and told the jury that he could control his desire to drink if it was a working day. We note that at page 3B of the transcript of his ruling the trial judge summarised the evidence in the following way: "The evidence of alcohol dependence is, in my judgment, weak and unsupported by expert evidence." 9. Section 2 of the Homicide Act 1957, as amended by the Coroners and Justice Act 2009, provides in part as follows: "(1) A person ('D') who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which - (a) arose from a recognised mental condition, (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and (c) provides an explanation for D's acts and omissions in doing or being a party to the killing. (1A) Those things are - (a) to understand the nature of D's conduct; (b) to form a rational judgment; (c) to exercise self-control. (1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct. (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder." 10. The recognised medical condition from which it is suggested the applicant was suffering was alcohol dependency. The judge indicated that for the purposes of the ruling he would be prepared to accept that the applicant was suffering from that condition, but concluded that there was no evidence on which the jury could find that the applicant was suffering from an abnormality of mental functioning which arose from that medical condition and which substantially impaired one of the three capacities mentioned in the Act. 11. The judge held, in our view correctly, that the amendment of section 2 by the 2009 Act did not diminish the authority of cases such as Byrne [1960] 2 QB 396 and Dix 74 Cr App R 306 , in which it was held that medical evidence, though not in terms required by section 2 of the Act, was "a practical necessity" if the defence was to succeed, because the onus was on the defendant. The judge quoted from a passage at paragraph 19-83 of the current edition of Archbold in which the learned editors say, in our view correctly: "... it will be for the jury to decide whether the accused was suffering from an abnormality of mental functioning, whether this arose from a medical condition, whether it substantially impaired his ability to do one of the three things mentioned in subsection (1A) and whether it caused, or was a significant contributory factor in causing the defendant to carry out the killing. Medical evidence will, however, be relevant to all these issues, particularly the first three (as to the second, it will be critical). As before ... it is submitted that the jury will not be bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it." 12. In our judgment, the judge's reasoning and conclusion cannot be faulted. The evidence on which Mr Lithman seeks to rely was wholly insufficient to found the partial defence of diminished responsibility. Even if on the totality of the evidence the jury might properly have found that the defendant probably suffered from alcohol dependence, which we doubt, there was no evidence on which they could make any decision favourable to the applicant in relation to the other ingredients of the defence. 13. In this context the law draws an important distinction between voluntary intoxication and alcohol dependency. The former cannot found a defence of diminished responsibility: see Dowds [2012] 1 Cr App R 34 . The latter may be capable of doing so, but on the evidence in this case it would have been quite wrong for the judge to permit the defence of diminished responsibility to go to the jury. There was, quite simply, no evidence on which the applicant could begin to discharge the burden of proving on the balance of probabilities each of the matters which section 2 would require him to prove. 14. This renewed application accordingly fails and is dismissed.

```yaml citation: '[2013] EWCA Crim 2498' date: '2013-12-06' judges: - LORD JUSTICE JACKSON - MR JUSTICE HOLROYDE - HIS HONOUR JUDGE MILFORD 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. Neutral Citation No. [2024] EWCA Crim 110 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202304392/A1 Royal Courts of Justice Strand London WC2A 2LL Tuesday 30 January 2024 Before: LORD JUSTICE DINGEMANS MR JUSTICE JAY RECORDER OF REDBRIDGE (HER HONOUR JUDGE ROSA DEAN) (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REX V DAVID MBOMA Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _______ MS S PRZYBYLSKA appeared on behalf of the Attorney General. MS K HIRST appeared on behalf of the Offender. _____ J U D G M E N T LORD JUSTICE DINGEMANS: Introduction 1. This is the hearing of an application by His Majesty’s Solicitor General for leave to refer a sentence, imposed on the respondent, David Mboma (“Mr Mboma”), to the Court, which the Solicitor General considers to be unduly lenient. 2. On 13 October 2023, Mr Mboma (then aged 26 years old) and a person of previous good character, was convicted, after a trial before HHJ Mark Dennis KC and a jury, of two offences of assault by penetration and six offences of sexual assault, and he was acquitted of two offences of voyeurism. 3. The offences were committed on the evening of 15 September and early morning of 16 September 2017, when the appellant was aged 19 years and the complainant, who has the benefit of life-long anonymity, pursuant to the Sexual Offences (Amendment) Act 1992 , was aged 15 years. The judge recorded that both were immature as part evidenced by the fact that they had bought brandy and sweets to sustain them during the night. It was common ground that the complainant and Mr Mboma had agreed to meet at a Premier Inn hotel for consensual sexual intercourse. Mr Mboma and the complainant drank brandy and consensual sexual intercourse took place. It was common ground that the complainant, who at that time had just gone into foster care and who had had a very disruptive and chaotic childhood, had said to Mr Mboma, whom she had known for about a year, that she was aged 18 years. This explains why Mr Mboma was not charged with any offences for having sexual intercourse with a child under 16 years. 4. As already indicated, the offences took place after drinking and consensual sexual intercourse. The complainant fell asleep, and it is apparent from photos and videos recovered from Mr Mboma’s phone, which was taken from him on his arrest in the morning of 16 September and downloaded by police on 18 September, that he had filmed and touched the complainant when she was asleep. 5. Mr Mboma was arrested in the morning of 16 September 2017, because the complainant, who had spoken with Mr Mboma in the morning and then left the hotel, felt very unwell, which was not surprising given the brandy that had been drunk the night before. She called for an ambulance, but her foster parents had reported her missing and so both an ambulance and a police car turned up. The complainant panicked and gave the police a false story about drinking with friends and then being taken to a hotel room by a man that she did not know who had raped her. Mr Mboma was then arrested, and his phone seized. A short period later the complainant confirmed that there had been no rape but by then the photos and videos on Mr Mboma’s phone had been found. Delay 6. It is necessary to say something about the chronology of the proceedings because there was an inordinate and an inexcusable delay in the prosecution of Mr Mboma. The complainant first reported the offence on 16 September 2017. Mr Mboma was arrested, interviewed and released under investigation on the same day. His phone was downloaded, and the images discovered on 17 September 2017. The complainant’s phone records had been deleted. An officer spoke to the complainant on 26 September about the images and she confirmed that she did not remember any images being taken because she was unconscious at the time. There was an earlier advice meeting between the police and Crown Prosecution Service in November 2017, and the victim complainant was formally interviewed on 29 November 2017. Mr Mboma was rearrested and interviewed about the images on 12 December 2017 and further inquiries were then made. This was so far so good, and it might have been expected that criminal proceedings would have started in 2018. In fact, the investigation was reallocated to another officer as the original officer became unwell. There were delays because of investigations into records, the case being sent to the CPS and back from the CPS, other unwell police officers, and the need for a senior officer to intervene. 7. It is apparent that this delay understandably caused distress and anxiety to the complainant, but it was submitted on behalf of the Solicitor General that the delay caused only limited detriment to Mr Mboma, because he had in the period of delay not committed any other offences showing good character before and after the offences which he was therefore able to demonstrate to the court. Mr Mboma was made aware that the proceedings were continuing in October 2022 when he was served with the proceedings by postal requisition. 8. The proposition that delay in proceedings has not harmed Mr Mboma, who has had the proceedings hanging over him, who had delayed applying to a university to switch courses after completing one year of another course, who now has a 3-year-old child and who reported suicidal feelings to his GP, is an unreal submission which we reject. It has been acknowledged for centuries that justice delayed is justice denied, but is not only the winner in any proceedings affected by delay. Delays penalise victims, who do not get justice. Witnesses have to attempt to remember matters long after the event. Offenders have proceedings hanging over them and are not able to move on with their lives. Delay is always unfortunate in cases involving young persons, and in particular in cases where the young person was found by the judge, as in this case, to be immature. It is particularly unfortunate in cases where there has been a contemporaneous complaint and investigation which revealed the offending. The Grounds 9. The grounds on which this Reference is brought were not set out with any particular clarity in writing. As a general proposition it might assist the Court if the Solicitor General adopted the approach taken by appellants in Advice and Grounds of Appeal and specified the grounds on which it was said that the sentence was unduly lenient. That said, we have had the advantage of helpful oral submissions from Ms Przybylska, on behalf of the Solicitor General, and Ms Hirst, on behalf of Mr Mboma, and we are grateful to both of them for their assistance. It seems that the following matters are in issue. First, whether the judge was wrong to characterise the assault by penetration as a category 3A and not category 2A offence, because of the issue of particular vulnerability. Secondly, whether the judge was wrong to find that the extent of penetration was a relevant matter when considering the sentence. Thirdly, whether the judge should have referred to an image that had been sent by the complainant to Mr Mboma the night before the meeting and to describe it as he did. Fourthly, whether the judge should have found that there was degradation or humiliation from Mr Mboma’s filming, despite his acquittal for voyeurism. Fifthly, whether the judge’s sentence was affected by irrelevant considerations, in that he expressed a view that it was relevant that the victim had not asked whether she would have consented to the offender touching her sexually if she was awake, or to him recording him touching her while she was asleep. 10. There were, it was common ground, mitigating factors for Mr Mboma, being youth and immaturity, lack of previous convictions and good character, and the impact of any imprisonment on his 3-year-old son, and the delay in the proceedings. There has also been some reliance on Mr Mboma’s mental health, which has been described as fragile. The Offences 11. As already indicated, the offences took place after drinking and consensual sexual intercourse. The complainant fell asleep, and it is apparent from the photos and videos recovered that when the complainant was asleep, there was an 8-second video in which Mr Mboma lifted the bedsheets to show to the camera the victim naked in her sleep, panning down to her bottom. That was charged as voyeurism, and Mr Mboma was acquitted of that count. There was a 1-second video of a close-up of the victim’s naked vagina and bottom and there was a 3-second video, a close-up of the victim’s vulva, with the offender’s two fingers touching the vulva and pulling the outer labia back. That was count 1, the assault by penetration. There was a 9-second video showing Mr Mboma stroking the buttocks of the complainant who was asleep. There was a 4-second video showing the offender touching the victim’s waist and buttocks and then the camera focused on the complainant’s sleeping face. There was a 10-second video, where the offender had touched the right breast of the sleeping victim, and there was a 3-second video, where the complainant was still asleep, the offender was awake and there was a caption across the video saying: “Talking all that shit and that you sleep”. There was then a 6-second video where Mr Mboma held the complainant’s right breast and sucked her nipple, and then there was a 7-second video where he rifled through the victim’s handbag and there was a caption across the footage saying: “Nothing but coins broke bitch”. At 11.48, there was a still image of the complainant with both breasts uncovered. There was then a 10-second video where the offender pretended to punch the sleeping complainant as they were both lying together and then there was a 6-second video, where the complainant was asleep with her hand on the offender’s arm and he knocked her away and said something but it is not possible to know what was said. At 12.43 there was a message from Mr Mboma to an unknown user: “That’s what you call a loser” and then at 12.43 there was a message saying: “Anyway back to tryna wake this bitch up”, then a message from an unknown user saying: “Dash them coins at her head”. There was a message from Mr Mboma to the unknown user: “If the sex is dead in the morning watch how ima violate her”. Then there was a 11-second video where Mr Mboma touched the victim’s vulva, separating that to show the vagina. Mr Mboma separated the victim’s buttocks to show her vagina (which was another sexual assault) and then he rubbed her buttocks (another sexual assault) and then another video which was showing her naked and asleep, and that was another voyeurism count on which he was acquitted. There was a 5-second video showing the complainant naked and asleep and there was a selfie image of that. 12. The court was asked before the hearing if it required to see the videos and film and replied that the court did not require to see any video or film but would watch any material which the parties considered it necessary for the court to see in order to determine this Reference fairly. At the start of the hearing that remained the position. At the end of the hearing, in support of the submission on behalf of the Solicitor General that there had been additional degradation or humiliation which should have been found by the judge as a fact, we were then asked to see, and did see, the videos and photographs. In order for that to be done, whilst maintaining the privacy of the materials, the police officer and counsel on both sides came to a room in the Royal Courts of Justice for us to see that material. Material Relevant for Sentencing 13. The complainant provided a victim personal statement saying: “The offences that were committed on me by [the offender] were only told to me by the investigating officers and I had never seen the actual images nor recall what he did to me thankfully. I have been told what he did to me and as I have matured I have been more and more angrier at what he had done. It has not helped having to wait so long and sadly this has had a detrimental effect on my wellbeing, mental health, and personal life; including relationships and my ability to trust anyone. This has affected my current relationship with my partner and my ability to be as intimate as I should or would like to be with him. However I have continued to support the case as I felt that he should not be able to get away with what he did.” 14. The court ordered a pre-sentence report and Mr Mboma told the probation officer that he thought that everything that happened between him and the victim was consensual. He said he was led by his sexual urges and is not the same person now. He said he regretted his actions and did not intend to cause harm. He said the victim was the first person he had sex with, and the probation officer considered that the offender’s admitted use of photography prior the offences and lack of sexual experience caused him to act in the way that he did. She commented that he does appear to accept the jury’s verdict but finds it hard to accept that he behaved in the manner which he did, and he presented as apologetic and remorseful. 15. Since the offence, Mr Mboma had started a degree in Sports Management at university but left after deciding to change course. He had been accepted to read Sports Therapy at another university but had not started because of the court proceedings. He had been in a relationship for 5 years with his partner, which started after these matters, and they have a 3-year-old son and plan to marry. The writer observed that a custodial sentence risked causing a detrimental effect on his mental health. The Sentencing Hearing 16. Prosecuting counsel had not appeared at the trial. Trial counsel had uploaded a Sentencing Note in advance of the trial, but prosecution counsel made submissions which the trial judge did not accept. For example, it was submitted that alcohol had been used to facilitate the offence, but the judge said that was not how it had been put or appeared at the trial. The judge produced a written note of his sentencing remarks, but the Reference has picked up and relied on some of the exchanges between judge and prosecuting counsel. That is not helpful, unless it is being suggested that those exchanges demonstrate bias or inappropriate behaviour by the judge. 17. In the written sentencing remarks, the judge did say at paragraph 2.4, that: “It should be noted that the Complainant has never been shown any of the images which are the subject of this indictment... Accordingly at trial the Complainant was asked very little about the images beyond confirming that she had not known that the images were being taken and stating that she had not agreed to that happening as she had been asleep.” 18. Then the judge went on to refer to the previous consensual sexual activity and the principal issues at trial. The judge considered particular features, counts 1 and 2, the assault by penetration, the touching was recorded and counts 2 to 6 and 8 to 9, the sexual assault and, as far as that, counts 4 and 5 were touching of a naked breast. The judge emphasised the assault by penetration was “penetration of the vagina by reference to its legal definition”. The judge found as an aggravating feature that the defendant took advantage of a female who was as a fact aged 15 years 5 months and therefore under the age of consent, and who was asleep when the sexual conduct took place. He identified another aggravating feature as multiple acts of touching before turning to mitigating features. The judge then set out the relevant Sentencing Guidelines, and the Assault by Penetration Guideline was referred to. The judge said: “Having invited submissions with respect to the guidelines, I take the view that the appropriate categorisation for the offence in this case is as follows: Category A [Culpability] (Recording of the offending)…” 19. The judge identified that this was category 3 harm, saying that the factors in categories 1 and 2 were not present. A factor in category 2, which we will come back to, is a bullet point saying: “victim is particularly vulnerable due to personal circumstances”. 20. A category 3A offence has a starting point of 4 years, with a range of 2 to 6 years. A category 2A offence has a starting point of 8 years, with a range of 5 to 13 years’ custody. 21. The judge referred to the guidelines on that, and he noted that there was category A for counts 1 and 5 recording of the offending and category 2, touching of the naked breasts. As far as the other matters were concerned, the judge found that it was category A culpability for recording of the offending, and category 3 as factors in categories 1 and 2 not present, and again in relation to category 2 of sexual assault, there is a bullet point for “victim is particularly vulnerable due to personal circumstances”. 22. The judge referred to the Sentencing Guidelines on Sentencing Children and Young Persons Overarching Principles, and also the guidance in R v Hobbs [2018] EWCA Crim 1003 [2018] 2 Cr App R (S) 36 , paragraph 30, which demonstrates that the modern approach of the courts to sentencing those under 18 is consistent with the guidelines, that age and maturity were particularly important, and that there was no cliff edge on an 18th birthday. The judge then referred to the reports before saying that, as far as sentencing, that this had been a most unusual and difficult case to consider, it presented the court with particular difficulties when endeavouring to determine the seriousness of the offending, and in particular, an assessment of the true extent of the defendant’s culpability and of any harm caused. The judge reminded himself that he was the trial judge. He had regard to the need to be alert to relevant principles and that counts 1 and 6, which were the assault by penetration, were the most serious level of the offending. The judge then imposed concurrent sentences on each count of 2 years’ imprisonment suspended for 24 months and made a rehabilitation activity requirement of 40 days and accredited programme requirement of 35 days. The judge then explained the effect of the sentencing. Relevant Principles 23. In Attorney-General’s Reference No 4 of 1989 (1989) 11 Cr App R(S) 517, it was held: “A sentence is unduly lenient we would hold where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate ... However, it must always be remembered that sentencing is an art rather than a science: the trial judge was particularly well placed to assess the weight to be given to various competing considerations, and leniency is not in itself a vice.” 24. A Reference permits this Court to remedy a gross error and to preserve public confidence in the sentencing process. The Reference 25. We then turn to the issues that were argued before us. The first issue is whether the judge was wrong to categorise the assault by penetration as category 3A and not 2A. We were referred briefly to some of the previous authorities and have looked at and also considered R v Bunyan [2017] EWCA Crim 872 ; R v Sepulvida-Gomez [2019] EWCA Crim 872 [2020] 4 WLR 11 and R v Husband [2021] EWCA Crim 1240 . Those deal with the issue of whether a victim is particularly vulnerable due to personal circumstances if they are asleep or intoxicated. It is right that there was one case where a person who was asleep was found not to be particularly vulnerable, but that was in a very particular circumstance where there had been consensual scripted sexual activity between three persons before one person had fallen asleep. 26. In all of those circumstances, this is a question for this Court to consider, because the judge, although he was addressed on whether the victim was particularly vulnerable due to personal circumstances, does not appear to have made any express finding on the matter. There was an implicit finding that the victim was not particularly vulnerable because the judge said factors in categories 1 and 2 were not present. The judge however himself found that there was an aggravating feature that the defendant took advantage of a female who was in fact aged 15 years 5 months (under the age of consent) and who was asleep when the sexual conduct took place. 27. In our judgment, the judge was wrong not to find that the complainant was particularly vulnerable due to personal circumstances in this case. This is because the complainant was a 15½-year-old child. She had drunk alcohol, and she was asleep at the material time. The judge was therefore wrong to categorise the offences of assault by penetration as category 3A rather than 2A. For similar reasons all the sexual assaults should have been category 2A, the judge found that some of those were 2A in any event. 28. We will return later to consider the effect of that finding when we consider the sentence. The second issue was whether the judge was wrong to find that the extent of penetration was a relevant matter when considering the sentence. The circumstances in which the penetration took place will always be material for a court to consider, for example the length of time over which the offending took place. No judge is entitled to downplay the effect of the penetration simply by referring to the descriptions given already set out above. That said, it is not clear what, if any, effect the judge’s emphasis on the legal definition of penetration had on the overall sentence. 29. The third issue was whether the judge was right to find that an image had been sent by the complainant to Mr Mboma the night before and to describe it as he did. The trial judge was entitled to find that an image had been sent by the complainant to Mr Mboma the night before. Whether it is a finding we would have made is irrelevant. There is no basis which has been advanced before us to show that this finding was inconsistent with other findings the judge made, controverted by a fact which could not have been gainsaid, or was in any sense irrational. What the judge said was that the complainant responded to the defendant by sending him what was described in the trial as a provocative image of her underwear, together with a message indicating that she was looking forward to their night together. That was the judge simply setting out the background to the matter. It is not apparent that affected or infected the judge’s approach to this matter. 30. The fourth issue is whether the judge should have found that there was degradation or humiliation from Mr Mboma’s filming despite his acquittal for voyeurism. The Assault by Penetration Guidelines have, as a culpability A factor, recording of the offence. As a category 2 harm factor, there is additional degradation or humiliation. There was, in fact, no distribution charge bought against Mr Mboma, because the prosecution took the view that they were unable to be sure that there had been distribution of these images. The judge heard the trial, he saw the images on many more occasions than we did, and we are simply not in a position to go behind his finding that there was no degradation or humiliation in addition as a feature to bring this within category 2. 31. The fifth point raised was whether the judge was affected by irrelevant considerations, in that he expressed the view that it was relevant the victim was not asked whether she would have consented to the offender touching her sexually if she was awake. As we have already indicated, there was a slightly curious passage in the sentencing remarks at paragraph 2.4, but it seems there that the judge was simply setting out the background to matters and what the issues were at trial. We cannot see that that showed that the judge misdirected himself in any sense. 32. We are, for the reasons already given however, sure that the judge was wrong to place this in category 3A and not category 2A of the assault by penetration offence specific guideline. We therefore grant leave for the Reference because there was a miscategorisation by the judge. Taking assault by penetration as urged upon us by both counsel, and as seems to have been the approach by the judge, as the most serious offence, for a category 2A matter there is a starting point of 8 years’ custody. Taking into account all the other matters but reflecting the fact that they all appear to relate in time and space very much to the same offending, one can aggregate all the offending on to the starting point and still end up with a sentence of 8 years to reflect all of the criminality. We then consider the other matters in mitigation. The first and most important points are age and immaturity. There is also good character and the details that we have seen in relation to that. Doing the best we can and in part reflecting the approach the judge had taken to age and immaturity of this particular man, we reduce the 8 years down to 4½ years to reflect this mitigation and the other aspects of mitigation that we have been referred to, in particular the fact that there is now a child dependent on Mr Mboma. We then turn to and take account of the delay which, as we have already indicated, we considered to be inordinate and inexcusable (and to be fair it was common ground that the delay was inexcusable). Doing the best we can, we can reduce the sentence by a further 1 year, to take account of that factor. That would then leave a sentence of 3½ years for the assaults by penetration, which is obviously a sentence of a length which cannot be suspended. Ms Hirst had accepted that, if we found that the assaults by penetration was category 2A, and not 3A, for the purposes of the offence specific guideline, it would be very difficult to reduce the sentence to one that could be suspended. 33. In those circumstances, we allow the Reference. We quash the sentences on the assault by penetration and impose a sentence of 3½ years imprisonment on each of those two counts concurrent with each other. So far as the sexual assaults are concerned, we will leave the sentences as they were, but they are no longer suspended because the length of the sentence on the two counts of assault by penetration means that there cannot be a suspended sentence. They will remain concurrent. The net effect is that Mr Mboma will be sentenced to an overall sentence of imprisonment of 3½ years. 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 110' date: '2024-01-30' judges: - LORD JUSTICE DINGEMANS - MR JUSTICE JAY ```

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 894 Case No: 200705140 A3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT HIS HONOUR JUDGE NORRIS T20077141 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/04/2008 Before : LORD JUSTICE PILL MR JUSTICE BLAIR and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : PATRICK ANTHONY PURCELL Appellant - and - R Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr David Harounoff (instructed by Cook Taylor ) for the Appellant Hearing date : 10 April 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill : 1. Having pleaded guilty to one of the offences at an earlier hearing and another on re-arraignment on 14 August 2007, Patrick Anthony Purcell was sentenced at the Crown Court at Woolwich, before His Honour Judge Norris, to terms of imprisonment. For an offence of sexual assault contrary to Section 3 of the Sexual Offences Act 2003 he was sentenced to imprisonment for public protection. On a charge of robbery he was also sentenced to imprisonment for public protection. A period of 5½ years less 201 days spent on remand was specified as the minimum term to be served. Ancillary orders were made on the sexual offence. 2. Purcell appeals against sentence by leave of the full court. 3. On 14 July 2006, a 16 year old girl went with her mother to visit relatives at a caravan park in Greenwich. The appellant’s wife asked her to make a cup of tea and take it to the appellant in his caravan. He engaged her in general conversation and asked for her telephone number. When he started to undo his trousers she turned to leave the caravan. He took hold of her and started to kiss her. He squeezed her breasts over her shirt, threatened her and told her not to tell anyone. 4. On their way home, the girl told her mother what had happened and the police were contacted. The appellant made angry telephone calls to her mother. He was arrested the following day and, at interview, denied committing the offence. 5. At about midday on 18 December 2006, an 83 year old widow went to her front door when the doorbell rang. She opened the door slightly and the appellant pushed the door open with great force which knocked her over. He entered the house. She tried to escape but was dragged back inside. She was punched in the face at least 6 times, causing her to bleed heavily and leaving her face battered and bruised. The appellant abused her verbally and said: “If I don’t get any money, I will kill you”. 6. The appellant put on gloves and forced the victim’s hand behind her back thereby breaking her wrist. He took her to the bedroom and threw her on the bed. Having locked them both in the room, the appellant searched the room for money and left with £1,500 in cash. He was identified by DNA and, on arrest, declined to comment. The victim subsequently identified him as the robber. 7. Sentencing the appellant, the judge described both offences as serious and the second as a house robbery of the most appalling kind. On its own, the sexual offence required a custodial sentence. 8. The robbery was committed while on bail and was, the judge said: “An attack of the most cowardly, cruel and brutal kind. She [the victim] was a vulnerable elderly lady, a widow”. The judge indicated that he would allow 20% discount for guilty plea on the sexual offence and 25% on the robbery. 9. Having correctly applied the statutory provisions, the judge stated that the appellant was to be regarded as a dangerous offender. He would make the sentences concurrent. Having regard to the Sentencing Council Guidelines and to decided cases, the total discounted determinate sentence would have been one of 11 years, giving a minimum period in custody of 5½ years. 10. The victim’s daughter informed the court of the serious effect of the robbery on the victim and her family. Her face is scarred and her wrist still very weak. Having been confident and independent, she is now very nervous and irritable and her activities are severely restricted even within the home. She has panic attacks and strongly dislikes being left alone so that the effect on other members of her family has been substantial. 11. The appellant is 38 years old and has a bad record. In 1997 he was sentenced to a term of imprisonment in the Republic of Ireland for an offence of rape of a 16 year old girl. Since he has been in this jurisdiction, the appellant has convictions for burglary of a dwelling house with intent to steal, theft, carrying offensive weapons, possession of Class A and B drugs, aggravated vehicle taking, handling stolen goods and driving while disqualified. Short sentences of imprisonment have been imposed on him. The judge noted that some remorse had been shown. We bear in mind also that there is no evidence to suggest that the victim’s house was targeted because of her age though the appellant was undoubtedly planning to enter and steal from dwelling houses and entered this one having observed that the occupant was elderly. 12. On behalf of the appellant, Mr Harounoff submits that imprisonment for public protection need not have been imposed but concentrated his submission on the length of the minimum term. We have no doubt that the judge’s assessment of dangerousness was appropriate and that imprisonment for public protection was rightly imposed. 13. Mr Harounoff has concentrated his submission on the decision of this court, Hooper LJ presiding, in Attorney General’s reference Nos. 38, 39 and 40 of 2007 ( Crummack & Others ) [2008] 1 Cr App R (S) 56 . It was only during the hearing that reference was first made to the case and it was in order to consider it more fully that judgment was reserved. 14. The court in Crummack referred to the Definitive Guideline for robbery issued by the Sentencing Guidelines Council in July 2006. This deals with other forms of robbery but, in relation to “Violent personal robberies in the home,” it is stated: “Relevant guidance from the Court of Appeal should be applied”. In the text, having noted that this category overlaps with some cases of aggravated burglary, the Council stated: “The sentencing range for robbery in the home involving physical violence is 13 to 16 years for a first time offender pleading not guilty. In this type of case, the starting point reflects the high level of violence, although it is clear that longer terms will be appropriate where extreme violence is used.” 15. Reference is made in the Guideline to O’Driscoll (1986) 8 Cr App R (S) 121 . In O’Driscoll , the defendant and another man gained access to the home of a man of 80, hit him with a number of blows with a hammer over the head, shoulders and leg. Having found his wallet, they held a lighted gas poker to his face and then tied the victim with wire and gagged him. The defendant was convicted of attempted burglary and causing grievous bodily harm with intent as well as robbery. The defendant had only one conviction for a serious offence, that of malicious wounding during a drunken brawl, for which he was fined. Giving the judgment of the court, upholding a sentence of 15 years imprisonment, Lord Lane, Chief Justice, stated, at page 122: “Consequently it seems to us that in cases such as this nowadays, where thugs, because that is all they are, select as their victims old folk and attack them in their own homes and then torture them—that is what happened here—in order to try to make them hand over their valuables in this savage fashion, then this sort of sentence, whatever might have happened in the past, will be the sort of sentence that they can expect. One hopes that that, in so far as lies in the power of this Court, may have some effect in protecting these old folk from this sort of savage, sadistic, cruel and greedy attacks.” O’Driscoll has been referred to and described in later cases as a guideline case and, with respect, the Sentencing Guidelines Council was entitled to rely on it in the way it did. 16. In Crummack , the court considered a number of dwelling house robberies in which substantially lower sentences had been imposed ( Attorney General’s reference No. 48 of 2000 ( Martin Clive Johnson ) (2001) 1 Cr App R (S) 123 , Attorney General’s reference No.34 of 2003 ( Dean Poyner) (2004) 1 Cr App R (S) 71 , and Attorney General’s reference No. 4 of 2004 ( Joseph Green ) (2005) 1 Cr App R (S) 23 . Reference can readily be made to them in the judgment in Crummack and we do not propose to repeat the facts in detail. Aggravating features were present but in none of the cases was a starting point above 10 years thought to be appropriate. Those cases do demonstrate a wider bracket than that contemplated in the Guideline. 17. In Crummack , the court stated that the Sentencing Guidelines Council, when stating the range of 13 to 16 years, “had in mind much more serious robberies than these”. The robberies in Crummack were less serious in that the flat was occupied by two people, the older of whom was 67, that is much younger than the victim in the present case. The actual violence used was very limited in nature as well as duration and as soon as the victim fought back (as he was well able to do) the defendants fled the premises. While threats were used, only one punch was thrown though tragically, it led to the death of the victim. A manslaughter count against one of the defendants was dealt with separately and a sentence of 5 years detention concurrent imposed on the perpetrator, aged 20. As to the robbery, the first defendant, aged 30 had a bad record including a conviction for attempted robbery. 18. By reference to the Guideline, the court stated, at paragraph 17: “We ask the question then: "Did the Council intend that robberies of the kind which would not attract sentences of 13 to 16 years fall within categories 1 to 3?" The answer to that question must be "no". We give that answer because the list of additional aggravating factors for category 1 to 3 robberies at pages 11 and 12 of the Guideline does not include the aggravating factor of the robbery being within a person's home. That said, it is of value to see what would have been the appropriate sentence for these robberies if committed in the street by a person who has no previous convictions and who is convicted after a trial. If one goes to page 11 of the Council Guideline, this would have been a level 2 robbery. Taking into account all the circumstances of these robberies, but assuming for the moment that they were on a street, it seems to us that the appropriate sentence, after a trial for a person with no previous convictions, would be in the region of five and a half years. The fact that a robbery is committed in someone's home is clearly a very important factor which could increase the sentence. Putting on one side the authorities, we take the view that an additional two years, or possibly a little more, would be appropriate for a robbery of this kind to reflect the fact that it was committed in someone's home, entry having been gained, as it was in this case, by subterfuge as opposed to force.” 19. We do respectfully question whether in all cases the appropriate approach to violent personal robberies in the home is to take the appropriate level for a street robbery, or “mugging,” and to transpose it into the home, with the addition of two years. The circumstances in the present case were significantly more serious than those in Crummack . Violent robberies in the home are in a different category with a seriousness of their own arising from the fundamental respect due to the sanctity of a person’s life in her home, as recognised by article 8 of the European Convention on Human Rights. Where the case involves the elderly, a feature can be, and in the present case is, the severe impact on the victim, whose independent way of living is effectively brought to an end, and on the victim’s family, who have to care for the victim thereafter. 20. The court stated, at paragraph 31: “In our view, the appropriate sentence for all three offenders after a trial, given their individual aggravating circumstances, was in the region of eight to eight and a half years. The sentences of two years six months and two years nine months were unduly lenient. Taking into account the early pleas and reducing the sentences by a small amount to reflect the aspect of double jeopardy, we substitute sentences of five years' imprisonment concurrent . . .” Mr Harounoff, of course, relies on the substantial difference between that sentence and the bracket of 13 to 16 years mentioned in the Guideline. Relying on Crummack , he submits that the determinate sentence of 11 years, which having regard to the discount for plea, contemplated gave a starting point of 14 to 15 years, was too high. 21. In other comparatively recent cases, a starting point consistent with O’Driscoll has been adopted. In Dunn [2002] 1 Cr App R (S) 23 , the court cited O’Driscoll as illustrating “the principles to be applied in this sort of case” and upheld a sentence of 10 years, on guilty pleas, where 2 robberies were committed in dwelling houses, one in a house occupied by a couple aged 78 and 86. The court stated: “Here there were two attacks on elderly people in their homes in the middle of the night, the later attack within hours of the first in circumstances which must have terrified the victims.” 22. In Marcus [2004] 1 Cr App R (S) 41 , O’Driscoll was relied on. The defendant had pleaded guilty to wounding with intent to cause grievous bodily harm, unlawful wounding and two counts of robbery, one on each occupant. He broke into the home of a couple aged 84 and 86. The defendant attacked the male occupant using keys as a knuckle-duster. He also punched and kicked the female occupant. The court stated: “We bear in mind the nature of the injuries caused, which, while they were not permanent in their nature, did involve very extensive bruising and grazing to the face. In our judgment to allow properly for the pleas of guilty the total sentence in this case should have been one of 12 years.” 23. In Hunter [2005] 2 Cr App R (S) 36 , the defendant pleaded guilty to two counts of burglary and one of aggravated burglary. He entered three houses, each occupied by people over 80. The defendant gained access to the home of a woman aged 81 by asking whether he could use the toilet. He went upstairs and later left taking property worth £6,000 with him. He broke into a flat occupied by a man aged 85 and his wife, who was also elderly. He was armed with a hammer, threatened the man with violence and demanded money. On the third occasion, the defendant broke into the home of a woman aged 81, grabbed a box under her bed and ran away. Consecutive sentences totalling 12½ years, plus return to custody for 240 days in respect of an earlier sentence were imposed. This court reduced the total sentence to 10½ years, plus the 240 days. We bear in mind that three offences were involved, though, in none of them, were the circumstances as grave as in the present case. 24. In cases such as the present, the overall seriousness does not appear to us normally to depend on whether charges are laid by way of robbery, burglary or offences against the person. Features of all three potential offences were present in the appellant’s case, and each to a considerable degree. 25. In our judgment the judge was entitled to take a starting point, in a case more serious than Crummack , within, though not at the top of, the bracket contemplated by the Sentencing Guidelines Council. The appellant was of mature years and had a bad record. There was an element of persistence and the physical injuries were considerable. The impact on the victim was very substantial and the appellant must have been aware that it was likely to be. The offence was committed while on bail. Subject to the principle of totality, a consecutive custodial sentence for the sexual offence would have been appropriate. In not making the sentence for the sexual offence consecutive, the judge undoubtedly had that principle in mind. 26. This was a severe sentence but, for the reasons stated by Lord Lane Chief Justice in O’Driscoll and reflected in more recent cases, severity is justified in such circumstances. We have come to the conclusion that the overall sentence imposed by the judge was not manifestly excessive. We uphold the minimum period imposed, and, because a term was not stated, we impose a 6 month concurrent minimum term for the sexual offence. 27. For those reasons, the appeal is dismissed.

```yaml citation: '[2008] EWCA Crim 894' date: '2008-04-29' judges: - LORD JUSTICE PILL - MR JUSTICE BLAIR - SIR RICHARD CURTIS ```

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 151 No. 202302277 A3 Royal Courts of Justice Tuesday, 13 February 2024 Before: LADY JUSTICE WHIPPLE MRS JUSTICE STACEY HIS HONOUR JUDGE PICTON REX v LUKE MATTHEWS __________ 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 J. Scobie KC appeared on behalf of the Applicant. The Crown were not represented. _________ JUDGMENT MRS JUSTICE STACEY: 1 This is a renewed application for leave to appeal against a sentence following refusal by the single judge, together with an extension of time of approximately six days in which to renew his application for leave to appeal. 2 On 12 June 2023, before the Common Sergeant of London sitting at the Central Criminal Court, the applicant, then aged 31, was sentenced to an extended determinate sentence of nine years and two months, comprised of a custodial term of seven years and two months and an extended licence period of two years, for the offence of possessing a firearm with intent to cause fear of violence, contrary to section 16 A of the Firearms Act 1968 . 3 The single ground of appeal is that the judge erred in finding the applicant to be dangerous within the meaning of section 279 of the Sentencing Act 2020 and, therefore, erred in imposing an extended term of sentence with the consequence that the sentence was manifestly excessive. The Facts 4 The applicant wanted to assist his mother to get a tenant, Tom Kennedy, out of a property that she owned. Initially, he thought a brick through the window would be sufficient but a drug-dealing associate Kyle Kelson recommended that discharging a sawn-off shotgun would be more effective. Mr Kelson obtained one for him and the applicant collected the weapon from Mr Kelson. 5 At around midnight on 18 June 2020, the applicant, his cousin Lee Matthews and another drug-dealing associate, Aaron McGrath, went to the applicant's mother's property where Mr Kennedy lived in Sutton. They travelled with the shotgun in Mr McGrath's car and a taxi ordered in the name of another. The applicant pointed out to the others the property where Mr Kennedy lived and his bedroom window which was at the front of the house. The light was on and they presumed Mr Kennedy to be still up and in his room at the time. The applicant then hid, waiting in the car in a nearby street, while Mr McGrath and Lee Matthews discharged the firearm through the bedroom window at the applicant's instigation and direction. The applicant had played a leading role in a group activity intended to cause maximum fear and distress, and an actual firearm had been discharged. Mr Kennedy was still up, and at home in his bedroom and in the event, by pure chance, he was uninjured. But what was done was extremely dangerous and could have had devastating consequences. 6 All three men left the area in a combination of three vehicles and went back to Mr Kelson's house, both to return the gun and to collect a consignment of cocaine that they had previously ordered and paid for. It transpired that the drugs were not there and following an altercation between the applicant and Mr Kelson in the street, the gun went off in Mr Kelson's face and he died at the scene. The three men disposed of the shotgun immediately afterwards and it has never been found. The applicant has been a professional Class A drug dealer for a number of years, earning several thousands of pounds a week. 7 The applicant, Lee Matthews, Mr McGrath and a fourth defendant named Gary Hayde were tried for the murder of Mr Kelson, possession of a firearm with intent to endanger life and for this offence. On the first day of trial, the applicant, Lee Matthews and Mr McGrath pleaded guilty to this offence. Lee Matthews, Mr McGrath and Mr Hayde were all acquitted of murder but the jury was unable to reach a verdict on the applicant. Following a retrial, the applicant was acquitted of murder and the offence of possessing a firearm with intent to endanger life was left to lie on the file. The Common Sergeant presided over both trials. Sentence 8 The applicant had 10 convictions for 21 offences, spanning from 7 September 2010 to 9 November 2018. His relevant convictions included possession of an offensive weapon in a public place (2011), common assault on three occasions (2013), assaulting a constable (2015) and a section 20 wounding (2018). He was on licence at the time of this offence. 9 The victim personal statement made harrowing reading. Mr Kennedy was completely upended and he lives in constant fear, and now sleeps in his car so he can keep on the move. He has suicidal thoughts. However, the judge accepted that this was Category 2 harm and not severe psychological damage as he felt he had to ignore the impact of Mr Kelson's death on Mr Kennedy since the applicant and the other defendants were found not guilty of Mr Kelson's murder. It was common ground that it was a high culpability offence with a starting point of six years and a range of four to eight years in accordance with the guidelines. 10 The judge found that there were four aggravating features of the crime. First, a prohibited weapon - a sawn-off shotgun - had been used; secondly, the offence was committed as part of a group; thirdly, the firearm was disposed of following the incident and has never been recovered; and, fourthly, at the time of the offence the applicant was on licence for other offences. 11 In the context of the factual background, the judge regarded it as a very serious offence of its type. The judge reminded himself of the sentences he had given to Lee Matthews and Mr McGrath at the end of the first trial. He had made an upward adjustment to the starting point for Lee Matthews to eight years, the top of the range. But by an unfortunate mathematical error in applying a 10 per cent discount for the late guilty plea, he arrived at a final determinate sentence of six years and nine months, instead of the seven years and two months he had intended. Once pronounced, it could not be increased and Lee Matthews retains the benefit of the judge's mistake. Mr McGrath was sentenced to seven years. 12 The judge considered the applicant to be significantly more culpable than either Lee Matthews or Mr McGrath for three reasons. First, unlike them, he was on licence at the time of the offence following his release from a three-year sentence for dealing in Class A drugs and a specified section 20 offence of violence (of wounding his girlfriend). He had around nine months of his licence period still to run. Secondly, he was the protagonist, organiser and principal mover. Thirdly, he used the others to do his dirty work and he exposed them to greater risk of being caught. The judge was particularly unimpressed with the way the applicant had hidden in Mr McGrath's car while the others fired the shotgun and how he had made sure the cars used were not his and taxis were booked in others’ names. He also considered there had been much planning by the applicant. The judge found the applicant to be very selfish and a manipulative individual. 13 The judge concluded that a sentence outside the range was necessary and justified as the applicant was significantly more culpable than the other two. He agreed to allow a 10 per cent discount for the guilty plea since it had been indicated to the prosecution a few weeks before the first trial even though the plea was not entered until the first day of the trial. 14 A pre-sentence report assessed the applicant as posing a high risk of serious harm to the public. The nature of the risk was physical assault and associated emotional and psychological harm caused by controlling behaviour. The pre-sentence report author also noted a long history of domestic violence. The applicant expressed remorse and empathy in the pre-sentence report interview, but the report author was uncertain if the emotions and views expressed were genuine. 15 The judge was meticulous in disregarding the matters for which the applicant and his co-defendants were acquitted. 16 The judge concluded that there was a significant risk to members of the public of serious harm occasioned by the commission - - by the applicant of committing further specified offences in the future [for] four reasons. He concluded that the applicant was a manipulative, self-centred and determined career criminal. Secondly, because unlike his co-defendants, he had been the principal player and it was he who had decided to initiate and commit the offence whilst on licence. Thirdly, because of the background of his involvement in a substantial Class A drug dealing over a number of years; and, fourthly, because of the views of the pre-sentence report author. 17 The judge concluded that an upward adjustment to the starting point be made to nine years from which he then deducted 20 per cent, arriving at a custodial term of seven years and two months, and imposed an extended licence period of just two years. 18 The single ground of appeal would be that the judge arrived at a sentence which was manifestly excessive as the judge incorrectly concluded the applicant was dangerous. 19 The limited differences between the applicant and his co-defendants did not justify an extended sentence for the applicant when the two co-defendants had received determinate sentences and no pre-sentence reports had been ordered for them. It was submitted that the applicant's antecedent history was not particularly violent and was of a different type, unplanned domestic violence. No mention had been made of the extraordinary circumstances of the case which was that the offence had been committed as part of the applicant's tearful reunion with his mother and his desire to please her. The pre-sentence report author had noted that lack of maturity may have had an influence on his actions. Analysis and Conclusions 20 The trial judge was best placed to make an assessment of the facts and the risk the applicant poses in the future, having heard all the evidence in both trials which included the applicant giving evidence twice over the course of 10 days. The learned judge made a careful and detailed assessment of the relevant factors in his sentencing remarks. As already noted, he was meticulous in putting from his mind and directing himself to take no account of those matters for which the applicant had been acquitted. He explained why he regarded the applicant as being in a different position from the two co-defendants. His conclusion was based on four distinct actions, all of which were based on the evidence, including the conclusion reached in the pre-sentence report. The conclusions in the pre-sentence report were consistent and supportive of the judge's conclusions. The author was also quite correct in noting that it was the judge's decision ultimately. 21 The fact that the applicant's previous violent offending was not of the same level could not preclude a finding of dangerousness given the particularly serious nature of this offence. The reasoning of the judge in his sentencing remarks is properly reflected in the material before the court (see R v Bourke [2017] EWCA Crim 2150 ). There are no arguable grounds to interfere with the judge's assessment of dangerousness. Mr Scobie KC correctly notes the imposition of an extended sentence is not automatic on a finding of dangerousness (see Bourke ) but on the facts of this case, such a sentence was amply justified. It is not reasonably arguable that the decision to impose an extended sentence was manifestly excessive. 22 Leave and leave for representation is refused and the extension of time is also refused. It would not be in the interests of justice to extend time given the lack of merit in the appeal. _____________

```yaml citation: '[2024] EWCA Crim 151' date: '2024-02-13' judges: - LADY JUSTICE WHIPPLE - MRS JUSTICE STACEY - 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} ======

Case No: 201106607 A8 Neutral Citation Number: [2012] EWCA Crim 135 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NEWCASTLE UPON TYNE HHJ GOSS Q.C. T20117086 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/02/2012 Before : LORD JUSTICE HOOPER MR JUSTICE HICKINBOTTOM and RECORDER OF CROYDON HIS HONOUR JUDGE WARWICK McKINNON (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 103 OF 2011 (Gary Thompson) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR. E. GARNIER QC (HER MAJESTY’S SOLICITOR GENERAL) and MR. R. WHITTAM Q.C. for the ATTORNEY GENERAL MR. B. RICHMOND QC for the Offender Hearing date: 19 th January 2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hooper : 1. Her Majesty’s Solicitor General seeks leave, under section 36 of the Criminal Justice Act 1988, to refer the sentence passed on the offender by HHJ Goss QC in the Crown Court at Newcastle as unduly lenient. We grant that leave. 2. The offender is Gary Thompson. He is aged 25, having been born on 13 October 1986. 3. On 26 September 2011 he pleaded guilty to a single count of murder. He was sentenced on 4 November 2011 to life imprisonment with a specified minimum period of 18 years’ imprisonment; less the 282 days he had spent on remand. 4. It is submitted that the minimum period was unduly lenient. 5. In summary, on 24 January 2011 the offender attacked Gillian Raine, the mother of Pamela Raine, who was the sometime girlfriend of the offender. It was a premeditated attack and the offender had an intention to kill. The offender waited outside Gillian Raine’s address. He was armed with a lump hammer and a kitchen knife, both of which he had brought to the scene with him. As Gillian Raine walked down the street the offender approached her. He struck her hard on the head with the lump hammer. He then stabbed her in the face, neck and chest with the kitchen knife. A neighbour witnessed the murder. The offender threw the hammer at her once he had used it on Gillian Raine. The neighbour did what she could for Gillian Raine. The offender phoned his mother and then the police. He told the police that he had just murdered someone. 6. The facts in more detail are set out in the Final Reference and are as follows: 6. On 24 January 2011 at about 7.30 am the offender killed Gillian Raine in the street as she walked to work. 7. Gillian Raine was a 53-year-old woman who lived in Dipton with her daughter Pamela. She was described by neighbours and family as a caring and gentle person. She ran the ‘out of school’ club. 8. Pamela Raine is 22 years old and has Asperger’s Syndrome. She had been in a relationship with the offender who she had met at college. This had been ‘off and on’ a number of times. For a period of time the offender had lived with Pamela and Gillian Raine at Coleridge Gardens. However a little over two years ago the offender was asked to leave by Gillian Raine. Since then Pamela Raine and the offender split up and got back together again on more than one occasion. Pamela Raine attempted to end the relationship on a number of occasions but the offender was very persistent. 9. On 18 January 2011, the offender received a text message from Pamela Raine, ending the relationship: ‘Get lost! I don’t want 2 b with u ne more! We r over!!! Leave me alone!’ 10. This generated a series of texts from the offender trying to persuade Pamela Raine to contact him. When these met with no response, his tone changed: ‘I was nice but not now!!!’ Gillian Raine replied on Pamela Raine’s phone: ‘NOW will u leave us alone, Gillian’. To which the offender replied: ‘Not yet I haven’t started’. Then: ‘Pamela u will have no trubble from me. I love u. U will have a good life soon when I am finished my work. U will have a much better life don’t worry about that.’ ‘Gillian u have pick on the wrong one this time. Ooops’ ‘Not talking 2 me will NOT help you gillian and pamela trust me on that one. As I sed b4. Promies is a promies 2 me. I will c use 2’. ‘Remember these words. U will c yr day. That’s a promies. Gillian. B 11. Gillian and Pamela Raine contacted the Police about the messages at about 8.30 pm on the 18 January. At 8.45 pm PC Paterson arrived at 1 Coleridge Gardens. He spoke to both Pamela and Gillian Raine. Pamela showed the officer the text messages. PC Paterson spoke to the offender on the Pamela Raines’s telephone and warned him against further attempts to contact Pamela Raine. PC Pearson recalls that Gillian Raine had said that the offender was a very nice lad, most of the time, but could be aggressive when in drink. They did not feel it likely that the offender would cause any problems. 12. The offender continued to send text messages, asking Pamela Raine what he had done wrong, saying that he loved her very much and asking to meet up with her. 13. On Wednesday, 19 January, Ian Bushby, a taxi driver picked the offender up at the Castleside Club in Consett and took him to Bellamy’s Pub in Newmarket Street. He noticed that the offender was very drunk and it was difficult to understand him. He was mumbling something about his girlfriend and his mother-in-law. He picked the offender up from Bellamy’s at midnight and took him to his home address, 11 Moorlands View. As they arrived at the address the offender said to him, ‘Just between friends, could you tell me where I could hire a gun?’ 14. On Friday 21 January 2011 at 12.40 am the offender contacted the police and complained that Gillian Raine had threatened him by text saying that if he enters Dipton he will not get out alive. Police attended at his home address and found him very drunk and abusive. He told the Police that he had received several threatening text messages from Gillian Raine. He refused to show his phone to the police and told them to leave him alone before slamming the door in their faces. Examination of the telephones in this case has not revealed any such messages. 15. On Tuesday 18 January 2011, the offender was drinking at the Castleside Club where he was a regular. He had been drinking heavily and was obviously upset, he told David Rose, the Club Steward, that he had split up with his girlfriend and that he blamed her mother for the break up. 16. The offender returned to the Club on the evening of 23 rd January at about 7.30pm. He told the Steward and Frederick Openshaw, a regular visitor to the club, that he would be moving away and that they would not see him again. David Rose asked him why he was moving and to where. The offender replied that he had it all planned out, that he was getting up early in the morning to go to Dipton, but that he didn’t know where he was going after that. He left the Club at around 10.30pm. 17. On Monday 24 January 2011 the offender was picked up by a taxi from his home address and driven to Dipton where he was dropped off outside The Red Lion Pub at the corner of co-operative Terrace and walked up the street towards Harelaw. 18. At 7 am that morning Vicky Hopper was walking her dog. She saw Gillian Raine walking up from Coleridge Gardens; she was carrying two heavy bags and a handbag. It was a normal, dark, winter’s morning. She saw Gillian Raine stop to speak to a neighbour. Vicky Hopper noticed the offender walk a short distance up the road towards them and then turn round. Then she noticed him again and he turned away. Thinking he might be scared of the dog, she shouted to him that the dog was soft. 19. Gillian Raine came up to her and they had a conversation. She then carried on her way but very shortly afterwards Vicky Hopper heard her say ‘ Vicky’ . She was walking back towards her saying ‘call the police’ more than once. Vicky Hopper then noticed the offender directly behind Gillian Raine, who said ‘ call the police now, he is going to kill me’ . 20. Vicky Hopper saw that the offender had a hammer in his right hand. He lifted it up and brought it down onto the centre of Gillian Raine’s head with such force that the impact could be heard. She fell to the ground face first without even being able to put her hands out to brake her fall. She began to bleed from her nose or mouth. Vicky Hopper telephoned the police. 21. Vicky Hopper then witnessed a brutal, calculated attack on the defenceless Gillian Raine. The offender had a knife in his right hand. As Gillian Raine tried to sit up he kicked her to the ground and then stabbed her to her right hand side, to her face and to her throat, Vicky Hopper told the police that they had to get there as he was killing her. She tried to distract the offender by asking him why he was doing this. He replied ‘because she deserves it’ . When she was shouting at him he showed the knife towards her. At some point he threw the hammer towards her and her dog. 22. Vicky Hopper describes the offender as being very calm in his manner. He stabbed Gillian Raine once more to the chest causing her to fall forward. This was done with such force that the blade snapped and became stuck in her coat. 23. The offender then moved away and Gillian Raine was left lying on the ground pouring with blood. Vicky Hopper tried to comfort her and to administer first aid but there was little she could do. 24. The police [called by the offender] arrived and officers did their best to stem the flow of blood. Gillian Raine stopped breathing and the officers began CPR. An Ambulance arrived. The paramedics continued to perform emergency CPR on route to the hospital. They arrived at the University Hospital of North Durham at 8.23am. 25. After 15 minutes of trying to revive her without success, resuscitation was discontinued and Gillian Raine was pronounced dead at 8.41am. 26. Dr Hamilton, a pathologist, carried out a post-mortem examination on the body of Gillian Raine at 2 pm on the 24 January. Gillian Raine had sustained a number of injuries: An incised wound to the chin consistent with glancing contact with a blade. Bruises and abrasions to the nose and chin, which could be consistent with either hammer blows or kicks. An oblique stab wound over the right clavicle, which had penetrated the upper lobe of the right lung. Two further stab wounds to the neck. One had cut the right vertebral artery, which would have bled persistently and significantly so as to be the cause of death. The second wound, where the knife struck the sternum was probably the last blow inflicted and which caused the knife to break. There was also a laceration to the back of the skull with a degree of damage to the external plate of the skull which had caused no fracture and no haemorrhage to the brain. This was consistent with a moderately forceful impact from the hammer found at the scene. There was also bruising to the shoulders which would be consistent with impacts from a hammer. 27. Having left Gillian Raine lying on the ground, the offender then made his was to the Happy Shopper, from where he rang his mother and then the police saying that he had just murdered someone and that he was expecting to be arrested. The police operator kept him talking on the telephone. He remained calm throughout the call. Police attended and arrested him. On the way to the Police Station he said to the Police, ‘I wanted to kill her’ . 28. When arrested for murder at Consett Police Station at 9.28 am in reply to the caution he said , ‘I’m happy, it’s nothing she didn’t do to me’. Later in his cell at 9.37 am he said, ‘I did not run because I knew I was going to be interviewed and if you are man enough to do the crime he must do the time’ . 29. The offender was interviewed at Durham City Police Office on the 24 January and again on the morning of 25 January. He told the police about his relationship with Pamela and how she had broken it off. He told them he had been drinking heavily on the days prior to the 24, and that he had decided to kill Gillian Raine. He had booked a taxi and taken the knife from the kitchen and the hammer from a drawer in his conservatory. 30. The offender told the police that he had been dropped off by the taxi and had then kept watch on the house, waiting for the lights to come on. She was later than usual in leaving the house. Whilst he was waiting, he had at one point contemplated going home and giving up to the idea. He had waited with the hammer in his hand and when she had come out, he had followed her. She stopped to talk to a neighbour so he had gone round the back of the houses in order to get ahead of her. She then spoke to another neighbour, so he waited to attack her. He stood in front of her and she said, ‘I’m going to phone the police. I told you to stay away from me and Pamela ’. He had replied, ‘you will have to run’ . 31. He told the Police that when Gillian Raine had asked what he had in his hand he had put the hammer close to her face. She started to run and he said, ‘I used the hammer to hit her across the head once. I didn’t really want to kill her but I did as well. I was mixed up with all sorts of feelings because she really hurt me bad’ . She fell on the ground and he remembered leaning over her thinking that he ought to finish her off because he knew he was going to be arrested. As he was going to spend his life in prison, he may as well just get on with it. He was asked what he meant by saying ‘finish her off’ and he said, ‘to make sure she was dead’ . 31. He could not remember how many times he had stabbed her, but he remembered that the knife had broken, so he had used the hammer again and hit her all over because he wanted to make sure that she was dead. He had done this because she was preventing him from seeing Pamela. He also told the police that he was not just planning on killing Gillian Raine, but Pamela and himself as well; ‘I thought as Gillian left the house, I killed her, the door is probably open. I didn’t have the key. I would walk in the house and kill Pamela and me, but at least we would be together’. 32. The offender submitted samples for analysis that showed that he had neither alcohol nor drugs in his system. 7. Although the offender had committed the killing in the presence of a neighbour, had called the police, had immediately admitted responsibility for the killing and had pleaded guilty to manslaughter at the first reasonable opportunity, he did not plead guilty to murder until later. Mr Robson QC who appeared for the offender before HHJ Goss, wrote in his written arguments for this Court: Although the respondent did not plead guilty at the first opportunity this must be seen in the context of the anxiety of his legal advisors about the severe learning difficulties of the respondent, his intelligence being in the bottom 1% of the population. His legal advisors felt it to be their professional duty to explore the possible defences of Diminished Responsibilities and Loss of Control. To that end a consultant psychiatrist and a psychologist were invited to provide reports and the “tipping disclosure” of the interview of the deceased’s daughter was not available until immediately before his decision to plead guilty. Communication with him was never easy and counsel thought it right to discuss the matter in person with the psychiatrist and the parents of the respondent. 8. The reference to the tipping disclosure is a reference to the fact that Pamela Raine had made a late video statement in which she had made it clear that she had wanted to end their relationship and that it was not at her mother’s behest and that this had helped to persuade the offender to plead guilty to murder. 9. A letter from the offender to the sentencing judge was read out in which he expressed his sorrow at the pain he had caused everyone, including that ‘cruel bitch’ the deceased. The offender’s mother gave evidence. She stated he was a very nice and kind member of the family. He was much loved by his siblings. He had his problems but was making progress. She believed Gillian Raine to be very controlling and unkind to him. The prosecution did not accept this and the sentencing judge said he did not feel it necessary to make any finding on it. 10. Dr Nadkarni, a psychiatrist, gave evidence. He had earlier prepared a report which was before the Court. He stated that the offender did not suffer from autism, which he had originally considered possible. He was of very limited intelligence, being in the bottom 1% of the general population. He had emotional and social communication difficulties. He perceived Gillian Raine as being the cause of all his problems. He accepted in cross-examination that he had been capable of planning this murder. He was obsessively in love with Pamela Raine. 11. The offender had no previous convictions. 12. A Pre-Sentence Report was prepared. The author noted the psychiatrist had concluded that the offender was not suffering from a mental illness at the time of the offence and that the psychologist was of the opinion that he does not have a personality disorder; his excessive consumption of alcohol was ‘the main cause of his problems rather than his intellectual difficulties’. 13. The following aggravating features were present: i) The attack was premeditated – over and above simply taking a knife with him to the scene intending to use it as a weapon – the offender was armed with two weapons, both of which he used. He knew where the deceased lived and he had gone to the outside of her home knowing he would find her. He then waited to attack her. ii) The attack itself took place in public in front of another woman. iii) The offender knew the daughter of the deceased had Asperger’s Syndrome and the death of her mother would leave her without the support she had from her mother with whom she lived. 14. We accept the following mitigating features: the offender had no previous convictions, he pleaded guilty and had the learning difficulties to which the judge referred in passing sentence. 15. In passing sentence the judge said: On the 26 th September of this year when the case was listed for trial you pleaded guilty to the murder of Gillian Raine on Monday 24 th January of this year. She was 53 years of age when she died. You are now 25 years of age having been born on the 18 th of October 1986 and you have no previous convictions. Gillian Raine died as a result of the stab wounds you delivered to her neck when you attacked her with a knife and hammer you had taken with you to outside her home. You hit her over the head and shoulders with the hammer and you then kicked her on her front to prevent her getting up before stabbing her twice in the neck and in the chest, causing the knife blade to break from the handle in the last blow that you delivered. You told the Police that you went to her house early that morning intending to kill. There was some confusion in your mind whether you intended to kill Gillian Raine or her daughter, Pamela, with whom you had previously been in a relationship or both of them and you then intended to kill yourself. You had previously attempted to end your own life and over the preceding months you entertained suicidal thoughts. These thoughts were generated by your obsessive love for Pamela. You could not accept her determination to end your relationship and you blamed Gillian Raine for ending that relationship. I accept on all the evidence before me, including the written evidence, that Gillian Raine was understandably protective and possessive of her daughter and would make her views known. You had met Pamela at college and had been in an on and off relationship with her for a number of years. Indeed, up to two years ago you had lived with Pamela and her mother and had been asked to leave because of your behaviour. Pamela had attempted to end the relationship on a number of occasions but you wanted it to continue. I don’t find it necessary to attribute responsibility for the ending of that relationship. The important fact is that you were obsessively in love with Pamela and you could not accept rejection. You are someone with learning difficulties and your view of reality was obscured by your low intelligence combined with the force of your affection for Pamela. It was a brutal and intended killing in which your victim will have suffered prior to death. Her loss has had a marked impact on those close to her left behind as I have read in the victim personal statements. A much loved family member has been taken from them. No sentence of the Court can undo what you did and the consequences of your actions. I am required by law to pass a sentence of life imprisonment and that is the sentence I pass. I must also fix the minimum term to be served before you can be considered for release by the Parole Board. Pursuant to the provisions of schedule 21 of the Criminal Justice Act 2003 the starting point when determining that sentence is 25 years, this being a case in which you took both a knife and hammer to the scene of the murder in order to, and did use them, to commit the murder. I then have to take account of aggravating and mitigating factors to the extent that they have not been allowed for in the choice of starting that point. Although there was a significant degree of premeditation in the offence I consider such premeditation is reflected in the high starting point. In mitigation I take account of your adjustment disorder and the fact that you are a vulnerable individual with learning difficulties contributing to emotional and social limitations. Nevertheless, the reporting psychologist did conclude it was excessive alcohol use rather than intellectual difficulties that were the main cause of your behavioural problems. I note you have no previous convections. I also give you substantial credit fro your plea of guilty, not seeking a verdict of manslaughter based on loss of self-control. 16. Later in this judgment we shall consider whether the judge was right to choose a starting point of 25 years. On the assumption that he was right, it is submitted by the Solicitor General that the judge was wrong to reduce that to 18 years to reflect the plea, the offender’s mental condition and the absence of previous convictions. 17. In so far as the plea is concerned, the judge said that he was giving substantial credit for the plea and for not seeking a verdict of manslaughter based on loss of self control. The Solicitor General submits that in the light of the delay in pleading to murder and the late video which operated as a “tipping disclosure”, the judge should not have given substantial credit. Mr Richmond does not accept that submission. 18. In our judgment HHJ Goss was entitled to give a significant reduction for the plea (a reduction the extent of which is limited by the Definitive Guideline “Reduction in sentence for a guilty plea”) having regard to his immediate admission to the killing and the fact that leading counsel would inevitably have wanted to be assured that the offender’s mental state did not have the effect of reducing murder to manslaughter. Given the unusual features of the evidence (a killing done in public, in the presence of a witness, followed by a call to the police to come to the scene, immediate admissions and a history of mental disability) any responsible counsel would have advised the offender not to plead guilty to murder until various enquiries of experts had been made. 19. The Solicitor General also submitted that the judge gave too much weight to what the judge, in addressing the offender, described as “your adjustment disorder and the fact that you are a vulnerable individual with learning difficulties contributing to learning difficulties”, whilst noting the role of alcohol in the offender’s behavioural problems. However, as we have already said, the offender submitted samples for analysis that showed that he had neither alcohol nor drugs in his system at the time of the killing. 20. We agree with Mr Richmond that the judge was entitled to reduce the 25 years to 18 years to reflect the mitigating features. 21. We turn to the starting point. The Solicitor General submits that the judge should have started with a higher starting point than 25 years. He submits that the judge was wrong to have concluded that the “significant degree of premeditation” was already reflected in the higher starting point of 25 years. This was not a submission made to the judge by the prosecution at the time of sentencing. 22. The effect of paragraph 5A of Schedule 21 is that the starting point will normally be 25 years (unless the case falls within paragraph 4(1) or 5(1)) if the offender took a knife or other weapon to the scene intending to commit any offence or have it available for use as a weapon. In Kelly and Ors [2011] EWCA Crim 1462 , the Lord Chief Justice has explained how paragraph 5A should be interpreted. In paragraph 53 of the decision, the Lord Chief Justice makes it clear that the premeditation required by paragraph 5A of the Schedule may be less than the “significant degree of planning or premeditation” referred to in paragraph 10 as an aggravating factor. We add that it is clear from paragraph 11 of the Schedule (which provides that lack of premeditation is a potential mitigating factor) that some degree of premeditation is inherent in paragraph 5A. 23. In this case it seems clear that the offender had formed the intention to kill by at least the night before, given what he said in the Castleford Club, and probably earlier. The judge used the words "a significant degree of premeditation in the offence" and, in our view, he should have found a significant degree of premeditation beyond the premeditation which is inherent in paragraph 5A. As we have said, the prosecution made no such submission to the judge to that effect. If such a submission had been made and accepted by the judge, he would have increased the starting point from 25 years. 24. No doubt in choosing what period to add on to the 25 years, the judge would have wanted submissions from the offender’s counsel about the premeditation, bearing in mind the offender’s mental condition. In Kelly we note that the judge chose a starting point of 28 years, an increase of 3 years. In that case the level of planning and premeditation was far greater than in this case. Any increase from the starting point in this case is likely to be modest. 25. Therefore whilst we accept that the judge was wrong not to have adopted a starting point of more than 25 years, we have no doubt that, on the facts of this case, that the failure to do so does not make the minimum term unduly lenient. We therefore do not interfere with the minimum term.

```yaml citation: '[2012] EWCA Crim 135' date: '2012-02-10' judges: - LORD JUSTICE HOOPER - MR JUSTICE HICKINBOTTOM ```

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

Neutral Citation Number: [2013] EWCA Crim 1836 Case No: 2012/4543/C5 & 2012/4570/C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 3 October 2013 B e f o r e : LORD JUSTICE PITCHFORD MR JUSTICE KEITH MR JUSTICE LEWIS R E G I N A v WARREN LAING DAMIAN LOUGHMAN Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Mr A Edis QC and Mr R Simons appeared on behalf of Laing Mr D Thomas appeared on behalf of Loughman Miss S Whitehouse appeared on behalf of the Crown J U D G M E N T 1. LORD JUSTICE PITCHFORD: On 11th July 2012 following a trial at Manchester Crown Court before His Honour Judge Steiger QC, Warren Laing and Damian Loughman were convicted by the jury of an offence of causing grievous bodily harm with intent, contrary to section 18 Offences Against the Person Act 1861 . On 30th November 2012 they were each sentenced to an extended sentence of 12 years, comprising a custodial term of seven years' imprisonment and an extended licence period of five years. Warren Laing has limited leave from the single judge to appeal against conviction. He seeks to renew those grounds upon which he was refused leave and to argue a further ground which was not before Mackay J. The single judge refused Damian Loughman leave to appeal against conviction. He now seeks an extension of time of 23 days within which to renew his application for leave to appeal. 2. The issue in the case of the appellant Laing was identification. His grounds concern in the main the admission in evidence of an identification of him made from a crime scene CCTV film by a police officer and the subsequent treatment of that evidence both during a submission of no case to answer and in the judge's summing-up. The issue in the applicant Loughman's case was one of participation. He admitted presence at the time of the offence. He asserts in his grounds the wrongful admission of evidence which he submits was unfairly prejudicial and misdirections, omissions or prejudicial observations upon his case by the judge in his summing-up. 3. The underlying circumstances of the offence were these. On 3rd January 2012 the victim, Garfield Johnson, was shopping in a Nisa store in Longsight, Manchester. Shortly after 1.20 pm a black Chrysler motorcar drew up outside the shop. Three men alighted from the car and went into the shop. They approached Mr Johnson who suffered a heavy blow to the face from the first of his attackers. He went to the ground where he was repeatedly kicked, he said by all three men. 4. Three men were captured on street CCTV film leaving the shop and getting into a Chrysler car which was driven away. Mr Johnson was left suffering bilateral chemosis, that is swelling of the membrane covering the eye, together with a fracture involving the posterion medial floor and the wall of the left orbit. There was no issue at trial that really serious harm was caused and that those who carried out the attack intended to cause such harm. 5. The street CCTV recording was recovered quickly. On the same day local police officers were asked to view the film. DC O'Connor identified the applicant Loughman. DC Carter identified the appellant Laing. DC Donnelly identified the third man, Matthews. The victim's blood was found subsequently on Matthews' clothing and Matthews later pleaded guilty to the charge. 6. Mr Johnson was interviewed briefly on 3rd January when he was still under the effect of the drugs with which he was being treated. The following day he took part in an ABE interview recorded at the hospital. He said that the first man to approach him came in front of him, called him a "Snitch" and punched him to the face. He described this man as a black male aged about 27, slightly shorter than himself, slim, with short black hair. He was wearing a brown woolly jumper and black trousers. He had an English accent. 7. Seen in the CCTV film was a black man wearing a brown-coloured garment with the hood up emerging from the shop immediately after the attack. He went to the driver's seat of the car and drove the car away. It was this man whom DC Carter identified as Warren Laing. 8. A second man, said Mr Johnson, was white, aged 27 or 28, about five foot three inches in height and stocky. He wore a blue woolly jumper with a hood and possibly trainers. The applicant Loughman was identified in the CCTV film by DC O'Connor as the man wearing a short blue anorak with the hood down and light brown-coloured trousers. He emerged from the shop and entered the front passenger seat of the Chrysler. 9. The third man was described by Mr Johnson as a black male, aged about 30, five foot nine inches in height and heavy set. He wore a black jumper. This was the man identified as Matthews. He left the shop and entered the rear nearside passenger seat of the Chrysler just before it was driven off. 10. In the course of his interviews, Mr Johnson insisted that he did not know any of his three attackers and as far as he knew he had never seen them before. 11. On 4th January the Chrysler car was located. It was found parked opposite and close to Mr Laing's parents' home in Brambley Avenue, Stretford. DC Carter obtained Laing's telephone number and called him. Laing told him that the keys to the car were on the estate, meaning the Coverdale Estate in Longsight. That car was already known to the police. It was a car to which it was known Laing and at least six others had access. On 5th January, Warren Laing was arrested by appointment and interviewed. He made no comment but agreed to take part in a VIPER identification procedure. For that purpose he was photographed on the same day. 12. On 17th January a selection of photographs was made in preparation for the VIPER procedure but Mr Johnson was not asked to attend. Mr Laing's solicitors, wishing to make an application for bail, placed a little pressure on the civilian staff for an early procedure to take place. On 27th January the solicitors were informed that there would be no identification procedure because Mr Johnson would be unable to identify his attackers. He had, the solicitors were told erroneously, been hit from behind. In a witness statement made on 19th March 2012 Mr Johnson said that he had by that time been informed that Warren Laing had been identified as one of his attackers. 13. Following requests from the defence, the prosecution disclosed the day book kept by the officer in charge of the case, DS Tyrer. In it was the following entry for 6th January: i. "DC Tyrer (OIC) informs Garfield Johnson that Warren Laing (Bob) was responsible for the assault on him. 'It was clear that Johnson was in complete shock when told it was Bob. Johnson stated that he had known Bob for a long time, he also stated that he knew Bob's father who is also a music promoter named 'Chips' Johnson. Stated he had no beef with Bob and he couldn't believe this. He said that he had seen Bob on Saturday night outside the local Premier store.'" 14. At the commencement of the trial, Mr Simons, counsel for Mr Laing, sought the exclusion of DC Carter's evidence of identification and in the alternative a stay of the prosecution as an abuse of process of the court. His Honour Judge Steiger QC agreed to hear evidence in the absence of the jury. 15. Garfield Johnson confirmed in evidence in the voir dire that he had provided descriptions of his attackers to the police following his arrival at Manchester Royal Infirmary. He had not obtained a good view but after probing questions said that he had been able to provide limited descriptions. He confirmed their accuracy in the course of his evidence. He did not know his attackers. Asked about his knowledge of Mr Laing, he said that they were members of the same extended family. They shared an aunt who was now deceased. They saw one another regularly and he knew Mr Laing "very, very well". He said that he could not believe it when he was told that Mr Laing had attacked him. There were, as far as he knew, no issues between them. 16. DC Tyrer gave evidence. It was his initial view, having spoken to the officers who interviewed Mr Johnson, that a VIPER identification procedure should be followed. But having spoken to Mr Johnson personally, on 6th January, he changed his mind. As a result of what Mr Johnson told him, he said that he did not consider that the witness would be able to make any identification. He then informed Mr Johnson that Warren Laing had been identified by the police as one of his attackers. He had given Mr Johnson that information in order to explore a possible motive for the attack. 17. We have during the course of the hearing received a transcript of the relevant parts of DC Tyrer's evidence. He explained to the judge how it was that he had discussed the circumstances of the attack with Mr Johnson, any opportunity that he may have had to take in the features of his attackers, whether he was now able to give any description of his attackers and whether in his view there was a prospect of him being able to recognise them. 18. It was put to DC Tyrer that on 18th January he had informed Mrs Ann Marshall, a civilian employee at the VIPER suite, by telephone that on 24th January he intended to visit Mr Johnson, at which time he would arrange with Mrs Marshall a mutually convenient time for the VIPER 3 viewing. DC Tyrer denied that such a conversation had taken place. As we have observed, it was his evidence that a decision had been made many days previously that no such procedure would occur. 19. Mrs Marshall gave evidence that a representative of Mr Laing's solicitors, Mrs Marilyn Murray, wished to accelerate the VIPER 3 procedure in order that a bail application could be made on Mr Laing's behalf. When the contents of Mrs Murray's file note for 19th January were put to Mrs Marshall, she said that she had no recollection of the conversation. She did concede that she had attempted to make contact with DC Tyrer on 24th January which, she agreed, appeared to indicate that she was following up an arrangement which earlier had been made with him. 20. Mrs Marilyn Murray is an experienced legal executive employed by the appellant's solicitors. She gave evidence that within an hour of her meeting with Mrs Marshall on 19th January she had made a file note which she produced. It was in general in the terms which we have just described. 21. Mr Simons submitted to the judge that contrary to the evidence of DC Tyrer, the decision not to hold an identification procedure cannot have been made as early as 6th January. If it was, then the arrangements which appear to have followed were a charade. Mr Simons' underlying argument was that Code D under the Police and Criminal Evidence Act 1984 required that an identification procedure be held. Code D paragraph 3.12 in its relevant parts provides as follows: i. "3.12 Whenever: ii. ... iii. (ii) there is a witness available, who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given an opportunity to identify the suspect in any of the procedures set out in paragraphs 3.5 to 3.10 and the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no iv. Useful purpose in proving or disproving whether the suspect was involved in committing the offence..." 22. It was submitted to the judge that whatever the quality of the opportunity available to Mr Johnson to observe the features of his assailants, he had been able to provide descriptions of their ages, build, hair colouring, skin colour, height and clothing. For that reason an identification procedure should have taken place. 23. Before the VIPER procedure could be completed, Mr Simons submitted, DC Tyrer, either deliberately or incompetently, sabotaged it by informing the witness of the identity of the suspect, a person who was in fact well-known to the witness. By this means the appellant had been deprived of the opportunity of being excluded by the witness as a suspect. Since Mr Johnson had expressed the firm view that none of his attackers was known to him, it was virtually inevitable that had an identification procedure been carried out, Mr Laing would have been exonerated. 24. The judge gave his written reasons rejecting both of the appellant's applications on 5th July 2012. At paragraph 8 he said this: i. "8. The evidence of DC Tyrer was not wholly clear about when he had first learned of Johnson's inability to make an identification; he testified that it was on 6th January but the statement he took from Johnson on 13th March suggested an earlier date. What is clear to me is that by 6th January he was aware that (for whatever reason) Johnson would be unable to make any identification. DC Tyrer explained that once it had been resolved with DS Cowan that Johnson would not do a VIPER, he used the conversation on 6th January to flush out any possible motive; he was interested in Johnson's reaction but nothing surfaced apart from surprise." 25. The judge held that once Mr Johnson had been told about the identification of Laing by the police, an identification procedure could not be held. He absolved DC Tyrer of any improper motive and accepted that despite the continuing arrangements made by the civilian staff towards holding the procedure, DC Tyrer himself had no intention of inviting Mr Johnson to take part in it, either on 24th January or on any later date. He did not resolve the question how it came about that those arrangements continued, despite DC Tyrer's decision that no procedure would be held, but there can be no doubt that the judge made a finding of fact in favour of DC Tyrer that first came the decision that no identification procedure could be held and second came the decision to inform Mr Johnson of Mr Laing's identification by the police as one of the attackers. 26. The judge concluded that notwithstanding these events, Mr Laing had not lost the opportunity to challenge DC Carter's identification because Mr Johnson would be called to give evidence. Mr Laing, being well-known to Mr Johnson, he could be asked whether he was one of his attackers. (Mr Simons had the advantage of an advance run in cross-examination during the course of the voir dire. DC Carter's evidence could therefore be admitted. Any difficulty arising for the defendant in consequence of the disclosure to the witness could be dealt with in the course of the trial.) This was not therefore, in the judge's view, a case for a stay. 27. Mr Edis QC, who now appears with Mr Simons in the appeal, no longer argues for a finding of any bad faith on the part of DC Tyrer. He concentrates upon the central issue whether there was an obligation under Code D paragraph 3.12 to hold an identification procedure. In this regard he submits that the judge failed to give his ruling on that issue. 28. We observe that the evidence that the appellant was seeking to exclude was the identification made by DC Carter. No identification had been made by Mr Johnson. The question for the judge was whether the appellant's opportunity to challenge the correctness of DC Carter's identification had been so undermined by a breach of Code D in Mr Johnson's case that the evidence should have been excluded or the prosecution stayed. 29. We accept Mr Edis' criticism that no ruling was made upon the issue whether Code D had been breached, but it seems to us to be implicit in the written ruling given by the judge. We are not persuaded that there was a breach of Code D. There are two reasons for this. First, at no time had Mr Johnson claimed to have seen the faces of his attackers. The opportunity he had to take in the features of his attackers was a matter which was explored by DC Tyrer on or about 6th January. Second, the judge accepted DC Tyrer's evidence that Mr Johnson told him he could make no identification of those who attacked him and, having listened to him, that DC Tyrer agreed. 30. Assuming for the moment, however, that there was an arguable breach of Code D, the second question for the judge was whether the breach deprived the appellant of a reasonable opportunity to challenge the identification made by DC Carter. Had an identification procedure taken place and had Mr Johnson failed to identify the appellant, that would not as a matter of law have precluded the prosecution from relying on the evidence of DC Carter. A trial judge would have been required to consider whether notwithstanding the exculpatory effect of Mr Johnson's evidence, the jury could nevertheless safely conclude that DC Carter's evidence was accurate. 31. What then was the effect of the failure to invite Mr Johnson to an identification procedure? The appellant had not in our view been deprived of the opportunity to rely upon the witness's exculpation of the appellant. On the contrary, it would emerge in the course of the trial. Accordingly, we agree with the judge that the appellant was able to mount an effective challenge and for that reason the evidence was rightly admitted and the applications properly rejected by the trial judge. 32. We therefore turn to the second ground of appeal, namely that the judge should have acceded to a submission that the appellant had no case to answer. 33. Mr Johnson gave evidence in the trial. His ABE interview was played as his evidence-in-chief. He agreed in cross-examination that he knew Warren Laing very well indeed. He was shocked to learn that the police had identified Mr Laing. Despite his shock, he accepted what he had been told. Mr Simons directed his specific questions to the subject of the man in the brown jumper. This was the man who according to Mr Johnson had called him a "snitch". Mr Johnson said he asked what "it" was for and the man punched him. Mr Simons put to the witness: "You have never seen that man before in your life, had you?" The witness replied: "No." 34. In re-examination Mr Johnson said that immediately before the attack on him he had been going to the cashier and on his way he had been using his phone. Of the man in the brown top who punched him, prosecuting counsel Mr Lavery asked: i. "Q. Did you at any stage see that man's face? A. No, sir ... " 35. The following exchange then took place: i. "Q. So was it Warren Laing who punched you? A. No, sir. ii. Q. Are you sure it wasn't him? A. No, sir, no. iii. Q. You are not sure it's not him? A. It's not Warren Laing punch me. iv. Q. Right and how can you say that if you did not see his face? A. Because what happen I know Warren Laing good, so if I see Warren Laing face I would know exactly as he punch me. v. Q. Yes, but this man who punched you, did you see his face? A. No, sir, that's what I'm said, no. vi. Q. Right, so I am asking you, can you say it wasn't Warren Laing? A. It wasn't Warren Laing. vii. Q. Right, and how can you say that if you didn't see his face? A. Because I know him, so it definitely weren't him, Warren Laing know me, I know Warren Laing so if it were Warren Laing punched me, if Warren Laing walk in the shop I could say Warren Laing punched me." 36. There was accordingly an apparent contradiction in the witness's evidence. On the one hand he was saying that the man who punched him was not Warren Laing. On the other he was asserting only that if he had seen the man's face, which he had not, he would have known whether the man who punched him was Warren Laing. That left open the possibility that the man who first attacked Mr Johnson was indeed Warren Laing but that Mr Johnson could not say one way or the other because he did not see his face. 37. We note that an almost identical conundrum arose from his response to a later question: i. "Q. When you say you didn't know them [ie all three men], is [it] that you didn't recognise them or you didn't see their faces? A. I didn't know them, I didn't see their faces, and I didn't know them. If I know them I would have said I know them." 38. DC Carter said in evidence that when he viewed the CCTV film he at first identified Mr Loughman. He was the person of whom there was a full facial picture in close up walking towards the camera. He then asked for the film to be moved forward to concentrate on the man in the brown top. He was wearing his hood up. In the camera shot the man in the brown top can be seen moving in the general direction of the camera but the view is a partial profile and of the right side of the man's face. 39. DC Carter said that in making his identification he relied on the man's stance, gait and facial appearance. He said on reflection that he was 100% happy with his facial recognition of the appellant. He conceded that he was aware that the car was associated with Mr Laing and that Mr Laing was a close associate of Mr Loughman, but he was satisfied that despite the inviting context he had made an accurate identification. 40. DC Tyrer gave evidence. Mr Simons wished to cross-examine DC Tyrer upon the ground which he had covered in the voir dire. He was prevented from doing so by the judge. 41. It is submitted by Mr Edis that Garfield Johnson had been explicit in his denial that one of his attackers was the appellant. A combination of the exculpatory evidence of the victim and the indifferent quality of DC Carter's opportunity for identification rendered the identification by DC Carter unsatisfactory and unsafe and for that reason the judge should have withdrawn the case from the jury. 42. We do not agree. The circumstances of DC Carter's recognition were recorded and no complaint is made about this aspect of DC Carter's evidence. There was, by reason of the contradiction which we have identified, an obvious flaw in Mr Johnson's exculpation of Mr Laing. We have viewed the CCTV film. In our judgment the quality of the image is good. It does not provide a full view of the suspect's face, but in our view an adequate image of the right side of the face from which a person well-known to that suspect might be expected to make a reliable recognition. 43. We shall come to the issue whether there was other evidence which tended to lend support to DC Carter's identification when we consider the appellant's criticisms of the summing-up. 44. The assessment of this evidence was in our view for the jury. It is noteworthy that in none of the descriptions given by Mr Johnson did he refer to facial appearance. That is hardly surprising given his repeated insistence that he did not see their faces. It was open to the jury to conclude, given these circumstances, that Mr Johnson was mistaken in his insistence that if the man in the brown top had been Mr Laing, he would have recognised him. DC Carter on the other hand had an opportunity to view the CCTV film in controlled circumstances. He made a positive identification which in our judgment the jury could accept. For these reasons, we conclude that the judge was right to reject the submission of no case to answer. 45. Thirdly, Mr Edis argues that the state of the evidence required careful directions to the jury which were missing from the judge's summing-up. As we have said, the identification under scrutiny was the recognition made by DC Carter from the CCTV film. This is not the classic Turnbull situation but evidence such as this has long been admitted, subject to safeguards - see Attorney General's Reference No two of 2002 [2002] EWCA Crim 2373 , [2003] 1 Cr.App.R 321 . 46. The directions required by Turnbull (1977) QB 224 , are to be modified as required by the circumstances of the case. In the present case there was no issue that Mr Laing was well-known to DC Carter by sight. Secondly, this was not a recognition which depended upon a short period of observation in indifferent conditions. It was made in controlled conditions from CCTV film, which we have found provided for the purpose an adequate representation of the suspect's face. The limiting factors on the value of DC Carter's identification were, it seems to us, the quality and content of the images of the suspect and the risk that even those well-known to the suspect may make a mistaken identification. The jury was not invited to reach their own conclusion about the identity of the man in the brown top and in writing Mr Edis submitted that this serves to emphasise the indifferent quality of the film. This is not an argument that we can accept. We have already referred to our view as to quality. DC Carter made his recognition from stance, gait and facial appearance. We can well understand why the view provided was regarded as sufficient for examination by a person who knew the subject, but not for the jury who did not. 47. The judge did not give an explicit direction that the jury should examine the question whether there was a sufficient view of the suspect to render DC Carter's recognition reliable. However, the judge did direct the jury that even honest and convincing witnesses can make mistaken identifications so the jury should consider the case and the circumstances of the identification with care. 48. We accept Mr Edis' submission that the judge's directions on this subject should have contained an explicit reference to the opportunity provided by the CCTV film to afford a reliable recognition by DC Carter. We have to consider the impact of its absence upon the safety of the verdict. First, we do not accept that there was a lack of opportunity which constituted a weakness in the identification. The view provided by the film was not perfect, but it was in our view sufficient. Second, we are informed that the subject had been the subject of examination in the course of the evidence. Third, in his own submissions to the jury, Mr Simons invited close examination of the opportunity provided by the film to enable DC Carter to make his identification. The jury had viewed the film for themselves on at least three occasions and the film was made available for their further examination if they required it. 49. In our view, this issue must have been at the forefront of the jury's consideration of the reliability of DC Carter's recognition, even if it had not been referred to explicitly in the judge's summing-up. In our judgment, the direction that the jury should examine all aspects of the evidence of identification with care so as to exclude the possibility of an honest but mistaken identification was sufficient and the absence of a further direction did not give rise to the risk of an unsafe verdict. Further, the judge proceeded to summarise the evidence of DC Carter's knowledge of Warren Laing and of his viewing of the CCTV film on three occasions. He explained to the jury the possible danger of contextual bias, that is to say that Mr Laing's association with the Chrysler car and with Loughman may have predisposed DC Carter to the conclusion that the driver of the car was Laing. However, he rightly pointed out that the contextual bias for which Mr Simons argued applied equally to Mr Matthews and DC Carter had not purported to identify him. 50. The judge was required to consider with the jury whether there was other evidence in the case which tended to support or to undermine the identification. The judge directed the jury that they could regard Mr Laing's association with the Chrysler car as some evidence which tended to support the identification. That of course depended upon whether the jury could safely exclude the possibility that DC Carter had jumped to a predisposed conclusion in the first place. 51. The judge placed before the jury the competing submissions of the prosecution and the defence in this respect and instructed them to give careful consideration to the arguments on both sides. We do not accept Mr Edis' submission that the judge should have instructed the jury not to treat this evidence as supportive. In our view this too was a matter for the jury to resolve upon their assessment of the competing cases. 52. We turn to the evidence that was capable of undermining the identification made by DC Carter. Plainly if Mr Johnson's assertion that the man in the brown top was not Warren Laing was to be taken at face value, it undermined the evidence of DC Carter. The appellant argues that this was the only safe conclusion the jury could have reached. With respect to Mr Edis' impressive argument, we do not agree. In our view Mr Johnson's evidence was equivocal for the reasons we have already identified. What was required from the jury was a close assessment of the effect of Mr Johnson's evidence. 53. In his legal directions the judge said: i. "If you thought that Mr Garfield Johnson was exonerating the defendant Laing and doing so honestly and reliably that would undermine Mr Carter's identification. But whether it does so or not is a matter for you because you are the judges of the facts." 54. Criticism is made of this passage on the ground that by using the word "honestly" the judge was conveying to the jury a possible motive for the evidence of Mr Johnson which revealed that he knew that Warren Laing was one of his attackers but was deliberately choosing not to name him. There was no such suggestion in the evidence and accordingly it should not have been said. 55. In our judgment, the judge was confronting an inevitably which arose from the contradictions in Mr Johnson's evidence. Logically speaking there were only two possible reasons, on one view of the evidence, why that contradiction existed. The judge was referring to them in the course of this passage and we do not think he can be criticised for doing so. Secondly, however, its language tended to reverse the burden of proof but the judge immediately followed with the instruction: "In summary, to convict Laing, you must be sure that whatever the other evidence, Mr Carter made a correct identification in picking out Laing in the doorway of the Nisa shop." In our judgment the jury can have been in no doubt that the burden was throughout on the prosecution. 56. Having later reminded the jury of the salient features of Mr Johnson's evidence, the judge returned to the subject of proof: i. "To summarise ... that evidence has some contradictory features and may be somewhat confusing but it is said to undermine ... the reliability of Mr Carter's identification and so you should give it full and proper consideration." 57. In our judgment this was an accurate and fair representation of the issue that the jury had to decide. 58. We turn to consider the effect of the judge's refusal to permit Mr Simons to cross-examine DC Tyrer upon the failure to hold an identification procedure. In Forbes [2000] UKHL 66 , [2001] 1 AC 473 , the appellate committee of the House of Lords confirmed that where in breach of Code D an identification procedure had not been held, but evidence of identification by the witness had been admitted, the judge should explain to the jury the manner in which the breach arose and invite them to consider the impact, if any, of that breach upon the reliability of the identification evidence. At paragraph 27, the committee held: i. " ...the jury should ordinarily be told that an identification parade enables a suspect to put the reliability of an eye-witness's identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair. In cases where there has been an identification parade with the consent of the suspect, and the eye-witness has identified the suspect, in circumstances involving no breach of the code, the trial judge will ordinarily tell the jury that they can view the identification at the parade as strengthening the prosecution case but may also wish to alert the jury to the possible risk that the eye-witness may have identified not the culprit who committed the crime but the suspect identified by the same witness on the earlier occasion." 59. The decision in Forbes did not apply to the circumstances which have arisen here. In the present case Garfield Johnson made no identification of any of his attackers. The prosecution was not seeking to rely upon any identification made by him. However, the failure to hold an identification procedure may not merely affect the reliability of an identification made by that witness, it may also remove an opportunity to test the reliability of an identification made by another witness. 60. In Gojra [2010] EWCA Crim. 1939 , the defendant was implicated in an offence by a witness called Nawaz. The police chose not to hold an identification procedure in the case of a further witness called Haq. Mr Haq had described the suspect but did not know him. In his directions to the jury, the judge posed the question whether the failure to invite Mr Haq to an identification procedure was relevant to their fact-finding in view of the fact that an identification had already been made by Mr Nawaz. At paragraph 74 of the judgment given on behalf of the court by Rafferty J (as she then was), she said: i. "74. This in our judgment was a misdirection. It was not a question of whether it were desirable to hold a parade, rather there existed a positive obligation to hold one. Otherwise, once there was one positive identification the police could avoid the risk of another witness failing to make a positive identification, thus undermining their case. The judge's summing-up may have given the impression that the failure to hold an ID procedure was of little consequence whereas he should have given a full Forbes direction." 61. At paragraph 75 she continued: i. "75 ... Be that as it may, the consequential question is the effect on the safety of the conviction of the absence in the summing-up of mention of the breaches of the Code. That counsel for Gojra had addressed the jury on it is no answer - Gojra was entitled to the imprimatur of the court. The jury should have been told of the protection extended to a suspect by the statutory scheme. There should have been set out a reasoned path through the provisions so as to put in context the possible prejudice to Gojra as a consequence of the breach. The process did not need to be complex or wordy but it did need to be clear and unequivocal. Such guidance might have affected the jury's approach to its task and we are persuaded that on this Ground Gojra must succeed ..." 62. Mr Edis submits that exactly the same reasoning applies to the present appeal. Mr Simons should have been permitted to explore with DC Tyrer the decision to hold and then to withhold the identification procedure for Mr Johnson. Mr Laing was entitled to the judge's direction that the police were in breach of Code D. In any event, he should have permitted Mr Simons to explore the matter before the jury. He should have explained, in the event that the jury found there had been a breach, how that failure may have impacted upon the reliability of DC Carter's evidence. 63. We have already indicated our judgment that a breach of Code D has not been established. In our judgment, even if there was a breach of Code D, there was an important factual distinction between Gojra and the present case which goes to the safety of the verdict. Mr Johnson could be asked with little risk of an unwelcome answer and was asked in cross-examination whether Warren Laing was one of his attackers. He said that he was not. In other words, the appellant was in at least as good a position as he would have been had Mr Johnson failed to identify him in a VIPER procedure. However, as we have said, it was a matter for the jury to decide whether Mr Johnson really was trying to exonerate Mr Laing and if so whether that was because he saw the first attacker and knew it was not Laing. The alternative, of which it seems to us the jury must have been sure, is that Mr Johnson could not exonerate Mr Laing because he had not sufficient opportunity to take in his features. We do not consider that the judge's refusal to permit cross-examination of DC Tyrer on the Code D issue or the absence of an adapted Forbes direction had any impact on the safety of the verdict. Instead, the judge directed the jury that if the jury concluded that Mr Johnson could and did exonerate Mr Laing, then the evidence of DC Carter was undermined. 64. We turn therefore to further matters. Relevant to the prosecution case was a schedule of sightings of the defendants with and without Matthews and others during the period between 5th June 2008 and 14th December 2011. On eight of those occasions there had been sightings of the Chrysler car in which was one or other or both of the defendants. The judge summarised the effect of the schedule in his summing-up. The defendants were spotted on 59 occasions. On 50 of them Laing was in a vehicle. On 11 of them Mr Laing was seen in the company with Mr Loughman and Mr Matthews. 65. This evidence was relevant to the prosecution because it established a strong link between Warren Laing and the car and Warren Laing and Mr Loughman which was capable, depending on the jury's view, of supporting DC Carter's identification. It is submitted by Mr Edis that the evidence was unfairly prejudicial by reason of its capacity to generate speculation that Mr Laing and the others were under police surveillance. However, Mr Edis also submits that had the judge given an explicit direction warning them against speculation, that would have served only to emphasise the point. It seems to us that while there can be no doubt that the schedule demonstrated that the sighting of the car was worthy of a police record, it does not seem to us that it can have provided any clue to the jury of any activity in which it or its occupants were engaged, which was of interest to the police, or indeed that they or the vehicle were under specific surveillance. In our judgment, and in any event, the jury's attention in this trial was correctly focused on the issue of identification. We have no reason to suspect that the list of sightings affected or could have affected the safety of the verdict. 66. We turn to additional criticisms of the summing-up. Mr Laing elected not to give evidence. In the course of directing the jury the judge posed the question whether the only sensible explanation for a defendant not to give evidence was "that he has no confidence in any innocent explanation." Mr Edis correctly points out that this is an inaccurate version of the conventional direction which poses the question whether the only sensible explanation is that the defendant has no answer to the prosecution case or none that would stand up to scrutiny. We accept that read literally the reader may be misled into thinking that if the defendant has an innocent explanation but does not choose to give that explanation in evidence because he does not think the jury will believe it, that may be a reason for regarding his failure as some support for the prosecution case. However, we are quite sure that the jury would not have taken the judge's words literally. At page 6, in connection with the same direction, the judge added these words: i. "Now if you were sure of those two things, that there was a case calling for an explanation, and secondly, that the only sensible inference is that the defendants have none, then you could take it as some evidence of guilt." 67. In our view, the jury would have understood the judge to mean that if the defendant had no innocent explanation to give they could infer a motive not to give evidence which may provide some support for the prosecution case. 68. Lastly, Mr Laing points to two passages in the summing-up in which the judge drew attention to the fact that he did not respond to questions in interview. The first complaint made is that Mr Laing had not relied at trial upon any fact which he could reasonably have been expected to mention when questioned. He simply put the prosecution to proof of identification and advanced no particular alibi. There was therefore no occasion for the judge to draw attention to the appellant's silence in interview. However, the context in which the judge made these remarks was the absence of the defendants from the witness box. He was making the point that the jury had heard from the appellant no explanation at any stage of the proceedings. In our view, in that context, his words added nothing to the effect of the direction concerning the appellant's decision not to give evidence and it did not affect the safety of the verdict. 69. The second criticism is that the judge observed that Mr Loughman had by not entering the witness box avoided the question "who was driving the car?" Mr Edis submits that this direction was capable of having an adverse and prejudicial impact upon the case of Mr Laing. We agree. Where there is evidence that defences are orchestrated, each defendant protecting the interests of the others, it may well be that such a comment would be justifiable. But that was not the case being advanced by the prosecution here. In our view the judge's comment should not have been made. However, the jury was informed that no fewer than seven people were associated by the police with the car and it seems to us that the jury must have concluded, if they put their minds to it, that Mr Loughman could have had a motive not to identify the driver, whoever he was, and it does not follow that the judge's remark made in the context of Mr Loughman's case had any impact upon this appellant. 70. We therefore conclude that each of the grounds advanced by Mr Edis on behalf of Mr Laing should be rejected and accordingly his appeal against conviction is dismissed. 71. We now turn to Mr Loughman's renewed grounds of appeal. We propose to consider their merits. He first advances one of the grounds on which Mr Laing relied, namely that the prosecution should not have been permitted to adduce the evidence of sightings of Mr Loughman in connection with the Chrysler car. For the reasons we have already given, we conclude that the evidence was properly admitted. In Mr Loughman's case he had in any event admitted presence at the scene on 3rd January. He also accepted his association with Mr Laing. We do not consider that the schedule was unfairly prejudicial to Mr Loughman. It can have had no effect, in our view, upon the issue which arose in his case which was whether he participated in the attack on Mr Johnson. Plainly if the evidence for the prosecution was in general accepted, it must have been conceded by Mr Loughman that others had attacked Mr Johnson while he was present. He was therefore, but only to that extent, implicated. The issue of participation depended entirely on the jury's assessment of Mr Johnson's evidence that he was attacked by three rather than any lesser number of men. 72. Second, Mr Thomas indicated to the judge that Mr Loughman would not be giving evidence. The jury were outside court waiting for the day's proceedings to commence. Mr Lavery, for the prosecution, sought time to collect his thoughts before making his final speech and the judge gave him until 2.00 pm for that purpose. In the meantime, however, he invited the jury into court in order that he could undergo the process of asking the questions of counsel required of him by the Consolidated Practice Direction and when introducing that subject to the jury he said "a slightly unusual development" had occurred. Mr Thomas argues that the jury may have interpreted the judge's remark adversely to the applicant. We simply cannot accept this submission. The remark said nothing at all about the merits or otherwise of the development to which the judge was referring. It simply introduced the situation in which the judge would have to ask specific questions of counsel and subsequently upon which he would have to give directions to the jury. 73. Third, it is argued that the judge erred when suggesting to the jury that the motive for the attack was revenge or punishment. It is said that this remark was not open to the judge in the absence of evidence. In our view there was evidence which justified the judge's use of these words. Mr Johnson gave evidence that he was accused of being a "snitch" at the time when he suffered the first blow to his face. Secondly, Mr Johnson suffered a severe beating while defenceless at the hands of three men who had sought him out in a shop in order to attack him. 74. Finally, it is argued that the judge failed to remind the jury that Mr Johnson could only identify the number of people who attacked him by reference to the number who entered the shop and the nature of the kicking he received. In our view the judge was not obliged to describe every nuance of the evidence. He made it quite clear to the jury that the issue in the applicant's case was whether he had participated in the joint enterprise to attack Mr Johnson. They could see Mr Loughman outside the shop on the CCTV film. They had the evidence of Mr Johnson as to his impression of the attack upon him. In our view the jury must have had Mr Thomas's arguments on the evidence in Mr Loughman's case well in mind when they retired to consider the issue of participation. 75. We therefore agree with the single judge that none of these grounds impact upon the safety of the verdict in Loughman's case and the renewed application is refused.

```yaml citation: '[2013] EWCA Crim 1836' date: '2013-10-03' judges: - LORD JUSTICE PITCHFORD - MR JUSTICE KEITH - MR JUSTICE LEWIS ```

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: 200903941 A9 Neutral Citation Number: [2009] EWCA Crim 1922 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 28th August 2009 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE TEARE HIS HONOUR JUDGE ROOK QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - R E G I N A v SULTAN AL-SAYED - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - Ms N Akudolu appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - J U D G M E N T 1. HIS HONOUR JUDGE ROOK QC: This appellant appeals against sentence with the permission of the Single Judge. He is a married man aged 30. He is a national of Saudi Arabia. 2. On 24th June 2009, at Chelmsford Crown Court, he was convicted of an offence of attempted voyeurism. On 28th July 2009, he was sentenced by HHJ Hayward-Smith QC to nine weeks' imprisonment. He was required to comply with notification provisions for seven years. He was disqualified from working with children for life and a recommendation for deportation was made. 3. Only a brief recital of the facts is necessary. On 6th September 2008 a ten year old girl was getting changed in a leisure centre in Colchester. She was with her family. As she finished getting changed, she saw a mirror slide underneath the cubicle door. When she looked in the mirror she saw the appellant's face in the mirror. The appellant then withdrew the mirror. The girl then crouched down and looked and saw the appellant place the mirror under two other cubicle doors. 4. The girl told her mother. Police officers who happened to be at the leisure centre at the time were informed. The changing area was searched and the appellant was arrested. When interviewed, he denied that he was trying to observe anyone. He said that he was at the leisure centre to look for a mobile phone he had lost. He went into a cubicle to rest as his leg was hurting. He also had a toothache and, to ease the pain, he rested his face on the cold floor. He used the mirror to check on his tooth at the same time. This was the account that the appellant put forward throughout his trial. 5. The girl's mother had provided a victim statement in which she states that the offence has had a emotional impact upon the child. The child tends to feel scared and nervous when she thinks about the offence and her independence has, for the time being, had to be curtailed by her parents. 6. In his sentencing remarks, the judge noted that the appellant had shown no regret or empathy. He had deliberately taken the mirror to the leisure centre to spy upon people. The ten year old girl he had spied upon had been required to give evidence and she had said that the appellant had tried to look into other cubicles. The judge took the view that the offence was too serious for him to adopt the recommendation in the pre-sentence report, a suspended sentence. The offence was aggravated by the pre-planning involved, which including taking the mirror to spy on the cubicles. The judge accepted that the mirror was not a sophisticated piece of equipment and the appellant had not specifically targeted children. However, he regarded the fact that the offence related to a ten year old girl as an aggravating feature. 7. In the light of these aggravating features, the judge identified the case as falling between level 1 and level 2 in the Sexual Offences Act 2003 definitive guideline for sexual offences for the sentencing of such offences. It was too serious for any disposal other than a custodial sentence and he took into account the appellant's previous character. 8. In a pre-sentence report dated 13th July 2009, its author, Sally Hall, states that the appellant was employed in government management as a supervisor in Saudi Arabia. He has been staying in this country accompanying his wife, who is currently studying at Hull University until 2010. He does not have permission to work in this country. In the view of the author of the report, the appellant has absolutely no understanding of the seriousness of his situation and exhibits a complete lack of remorse and victim empathy. His level of denial and the language barrier excludes him from participating in specific targeted sex offender programme work whilst either in custody or in the community. She concludes it is difficult to assess the appellant in terms of risk of serious harm but the present risk is assessed as medium and indeed a suspended sentence with the relevant requirement is proposed. 9. In the grounds of appeal, it is contended by Ms Akudolu that the sentence imposed was manifestly excessive as the case fell within level 1 of the definitive guidelines. It is submitted that this was a single instance of spying, the mirror was not sophisticated technology and there was no breach of trust. Furthermore, it is submitted that the recommendation for deportation should not have been made as the appellant's continued presence in this jurisdiction would not be detrimental to society. 10. Voyeurism is of course a relatively new offence created by section 67 of the 2003 Act . It involves, for the purposes of obtaining sexual gratification and knowing that another person does not consent to being observed, observing another person engaged in a private act. A private act is defined in the context of this offence as an act carried out in a place which in the circumstances would be reasonably expected to provide privacy and where the victim's genitals, buttocks or breasts are exposed or covered in underwear. The harm inherent in this offence is the intrusion of the victim's privacy. 11. The type or nature of the activity covered by level 1 of the guideline includes the basic offence, assuming no aggravating or mitigating factors. The example given in the guideline is where an offender spies through a hole he has made in a changing room wall. Here the suggested sentence is a starting point of community order. The next category, level 2, is designed to cover the offence, the basic offence, with aggravating factors such as recording sexual activity and showing it to others. Here the starting point is 26 weeks custody with a sentencing range of four weeks to 18 months custody. The list of aggravating features is clearly not exhaustive and we have no doubt that observing a child can be an aggravating feature which can put an offence into level 2. The third and most serious category covers the offence with serious aggravating features such as recording sexual activity and placing it on a website or circulating it for a commercial gain. Here the starting point is 12 months custody and a sentencing range of 26 weeks to two years in custody. There is no question of this offence falling in that category. 12. The trial judge took the view that this case fell between category 1 and category 2 of the guidelines in that it had certain features rendering it more serious than the basic offence envisaged as falling in category 1. It followed that in his view it was too serious for any disposal other than immediate custodial sentence. 13. We consider that the judge was perfectly entitled to take this view. The offence does not full neatly into either of the categories but there are significant factors which bring it towards the lower end of category 2. Whether a child was targeted or not, the complainant was a vulnerable ten year old child. The appellant took his chance as to the age of the person he was seeking to observe. It was simply good fortune that the child was clothed. The fact that this offence was an attempt amounts to limited mitigation. The appellant, when unsuccessful, was apparently undeterred and continued to try and observe others in other cubicles. Further, the offence must have involved a measure of planning in that the appellant went to the cubicles equipped with a mirror. It involved significant intrusion on a young child's privacy and the result was potentially disturbing for the child. 14. As for the length of sentence, the judge was well within the range of sentence suggested in the guideline. He took into account the appellant's previous good character. There is nothing to suggest that he treated the appellant's risible defence and the fact that a ten year old girl had had to give evidence as an aggravating feature. It simply meant that the appellant was not entitled to any discount for a plea of guilty. He made it clear that the sentence would have been longer had he taken the view that the appellant was specifically targeting children. In these circumstances, we do not consider there is any merit in the argument that the sentence was manifestly excessive. 15. As to the judge's recommendation that the appellant should be deported, we are invited to have regard to the fact that the appellant's wife is a sponsored student and the couple's stay is being funded by the Saudi government. Ms Akudolu has very candidly stated that there are matters here which were not deployed before the sentencing judge. The appellant is not a drain upon the sources of society. Deportation inevitably will have a dramatic effect upon the appellant's wife, who is to remain here until she completes her studies in microbiology in 2010. Further, her stay here is dependent upon the appellant being here with her as a chaperon. 16. We remind ourselves that the offence involves an intrusion into a child's privacy rather than physical touching. Serious though this offence was, as well as being potentially disturbing for the victim, we are unable to say one way or the other on the strength of this conviction that this appellant's continued presence in this country is detrimental to society. This is confirmed by the fact that the author of the pre-sentence report found great difficulties in assessing the appellant. We give no view as to whether deportation is appropriate in this case. That will be a matter for decision by the Home Office. 17. It follows that this appeal is allowed to the limited extent that we quash the recommendation for deportation. The prison sentence and the other ancillary orders all remain.

```yaml citation: '[2009] EWCA Crim 1922' date: '2009-08-28' judges: - LADY JUSTICE HALLETT DBE - MR JUSTICE TEARE - HIS HONOUR JUDGE ROOK QC ```

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No: 200302351 C4; 200302999 C4; 200305073 C4 Neutral Citation Number: [2004] EWCA Crim 2187 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 5th July 2004 B E F O R E: LORD JUSTICE CLARKE MR JUSTICE HENRIQUES MR JUSTICE BEATSON - - - - - - - R E G I N A -v- MICHAEL LIAM SMITH STEPHEN TURNER - - - - - - - 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 DUNNE appeared on behalf of SMITH MR R M BARRADELL appeared on behalf of TURNER MR R WOODCOCK appeared on behalf of the CROWN - - - - - - - J U D G M E N T Monday, 5th July 2004 1. LORD JUSTICE CLARKE: This is the judgment of the court. On 13th March 2003, in the Crown Court at Newcastle before His Honour Judge Cartlidge and a jury, the appellants, Michael Smith (previously called Norman Marshall) and Stephen Turner, were convicted of incitement to indecently assault a female and incitement to rape. Smith is about 43 years of age and Turner about 53. We will return to the sentences which were imposed a little later. 2. The original indictment had contained a joint charge of conspiracy to indecently assault a female, but the Crown did not proceed with that count. It thus proceeded with four counts. Counts 1 and 2 alleged incitement to indecently assault a female against Smith and Turner respectively and counts 3 and 4 alleged incitement to rape against Smith and Turner respectively. 3. The appellants appeal to this court pursuant to leave granted by the single judge, Langley J. Smith appeals against both conviction and sentence, whereas Turner appeals against sentence only. Turner did not apply for leave to appeal against conviction. 4. We consider first the appeal of Smith against conviction, although we refer first briefly to the background facts. 5. The appellants have convictions for numerous sexual offences. In Smith's case they relate to young girls, in Turner's case they go back many years and relate to adult and child females. In or about February 2001 they met while serving sentences of imprisonment at Frankland prison. Smith was released on 2nd August 2001. Turner was released two years later. On his release, Turner was met by Smith at Durham railway station. Smith produced a pair of girl's knickers and said that he was genuine and would be in touch. Smith then started up a written correspondence with Turner, describing acts of rape and indecent assault that he said he had performed on young girls. In that correspondence Smith repeatedly promised to bring a young girl from Newcastle to Turner's house in South Yorkshire for the purpose of rape and indecent assault by them both. The appeal against conviction 6. The Crown case depended entirely upon the contents of correspondence between Smith and Turner when set in its context. It was the Crown's case that in the letters from Smith to Turner and Turner to Smith each incited the other to commit rape and indecent assault on young girls. The defence of both men was the same. It was that the letters were all fantasy and in that sense were innocent, at any rate in the sense of not being criminal. There was no prospect of any of the suggestions in the letters being carried out and there was no incitement. 7. Smith originally appealed on five grounds as follows: (1) that the judge should have acceded to a submission on his behalf at the end of the Crown case that he had no case to answer and withdrawn it from the jury; (2) that the judge misdirected the jury as to the meaning of "incite" and "incitement"; (3) that the judge did not direct the jury adequately or at all as to how they should approach the evidence; (4) in particular, that the judge did not direct the jury as to what was meant by "fantasy" in this context; and (5) that the judge misdirected the jury on the burden of proof. 8. The first ground was abandoned before the hearing of the appeal on the footing that, in the light of the authorities, it has no reasonable prospects of success. It follows that the appeal has been argued for the most part on the basis that, if properly directed, the jury could safely convict Smith, and indeed Turner, for both incitement to rape and incitement to commit indecent assault. That is subject to what are essentially grounds 3 and 4 of the grounds of appeal, namely that the judge did not sufficiently direct the jury in relation to those parts of the letters which the jury might find to involve fantasy. 9. We shall consider ground 2, then grounds 3 and 4 together, and finally ground 5. Ground 2: incitement 10. The judge prepared a document for the jury which included his direction as to the meaning of "incite". In the course of his summing-up he said at 6B: "Incite means urge, spur on, stimulate, encourage or pressure. OED, members of the Jury, is a reference to the Oxford English Dictionary [We interpose to note that in his written memorandum for the jury he had included the words OED in brackets after the reference to pressure]. To urge, spur on, stimulate, are words I found from the Oxford English Dictionary, encourage or pressure are words that I have found in cases in the past where incitement has been alleged. Incite means urge, spur on, stimulate, encourage or pressure someone to do something, and you can see from the indictment what it is that the Prosecution say was being incited. The Prosecution must prove that the Defendant alleged to be inciting, intended by his action that the other Defendant should commit, depending on which count you are considering, the offence of rape or indecent assault, either on his own or with the Defendant who was doing the inciting." The judge then correctly defined rape and indecent assault. 11. Mr Dunne accepts that the judge's direction as to the meaning of incite is correct, subject to one point. He submits that the judge should not have included the word "stimulate". He refers to a decision of the Civil Division of this court in Race Relations Board v Applin [1973] QB 815 at 825 in which the court was considering the meaning of "incites" in section 12 of the Race Relations Act 1968 . Lord Denning said this: "If therefore Mr Applin and Mr Taylor 'incited' Mr and Mrs Watson to do an unlawful act, i.e. to take white children only, they are to be treated as themselves doing that act, even though the incitement did not succeed. Here I may mention a small point. Mr Vinelott suggested that to 'incite' means to urge or spur on by advice, encouragement, and persuasion, and not otherwise. I do not think the word is so limited, at any rate in this context. A person may 'incite' another to do an act by threatening or by pressure, as well as by persuasion. Mr Applin and Mr Taylor undoubtedly brought pressure to bear on Mr and Mrs Watson to take white children only, and thus 'incited' them to do so." 12. Mr Dunne relies on the fact that Lord Denning did not include there the verb "stimulate". However, it is right to say that in that case the Court of Appeal was not seeking to give an exhaustive definition of the word "incite" either in section 12 of the Race Relations Act 1968 or at all. 13. In the tenth edition of Smith and Hogan's Criminal Law, edited by Professor J C Smith, at page 290, Smith and Hogan set out the definition of "incitement" in the Draft Criminal Code, namely: "(1) A person is guilty of incitement to commit an offence or offences if - (a) he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and (b) he intends or believes that the other, if he acts as incited, shall, or will do so with the fault required for the offence or offences. Smith and Hogan continued: "The Code does not elaborate the meaning of 'incite'; but it has been said that an inciter: '... is one who reaches and seeks to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach to the other's mind may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity." See Holmes JA in Nkosiyama 1966 4 SA 655 a t 658, approved in Goldman [2001] Crim LR 894. See also DPP v Armstrong [2000] Crim LR 379. After that quotation Smith and Hogan continued: "In Marlow [[1997] Crim LR 379 DC] the court observed that this 'gamut of words' omits 'encourage' which, it thought, 'represents as well as any modern word can the concept involved', but then added the proviso that it must be clear that the encouragement involved is a positive step 'aimed at inciting another to commit a crime'. So it is not every encouragement which necessarily amounts to incitement. Perhaps the best word is 'incite' itself." 14. In the course of the argument Mr Dunne recognised that the use of the word "stimulate" might not be the subject of a proper complaint in very many cases as a synonym for "incite", but he submitted that it was an inappropriate word to use in the context of the facts of this particular case having regard to the subject matter of this somewhat degrading sexual correspondence. 15. While we can see that there is scope for debate as to the different nuances of meaning to be given to words like "urge", "spur on" and "stimulate", or indeed to "encourage" or "persuade", or any of the other words which might be adopted, we do not think that on the facts of this case the jury could have been misled in any way by the inclusion of the word "stimulate". We do not think that there is, for example, any difference in the present context between the expressions, say, "urge by persuasion" or "stimulate by persuasion". While we are inclined to think, perhaps with Smith and Hogan, that it would be better to define "incite" by less rather than more synonyms, and that it may be that it would be better not to use "stimulate" as one of them, we do not think that the use of it amounts to a misdirection on the facts of this case. In any event, the inclusion of it could not possibly make these verdicts unsafe. This ground therefore fails. Grounds 3 and 4: approach to the evidence 16. The defendant's case at the trial was that the whole of the content of the letters was pure fantasy. In particular, none of the girls referred to was real and none of the sexual activities described in fact took place. 17. Mr Dunne's submissions in support of the appeal against conviction may be summarised as follows. (1) The judge failed adequately, or at all, to direct the jury on how they should approach the evidence within the framework of his directions. In particular: (a) the one example from the evidence that was characterised as incitement (which is at page 18F-19C of the transcript) was referable to an admittedly fantasy figure, namely Sophie, a child whose picture was obtained from an encyclopaedia; (b) although the judge fully and fairly put before the jury the numerous instances of fantasy contained in the correspondence (see pages 25 to 30), he failed to direct the jury as to how they should approach that task in the event that they found that each such reference to a person or event was a reference to a person that did not exist or to an event that had not occurred; and, (c) if the jury found that those persons and events were works of fantasy, he did not identify what room there was for an incitement to be proved when the writings themselves were referable, from Smith in any event, only to those characters. (2) While the judge directed the jury that they "could acquit" if they found that either defendant was engaged in fantasy, he did not identify for them what he meant by fantasy. He did not direct the jury as to whether it was sufficient for an acquittal that the characters themselves might be works of fantasy or whether by fantasy he meant the whole nature of the communications from the applicant to Turner. 18. Mr Dunne adds that those criticisms are self-explanatory and somewhat overlap. At their heart lies what he submits was the failure of the judge to direct the jury with clarity on how they should approach their task. He says that the judge poses questions and sets out competing arguments but does not then provide any direction as to the legal consequences that may flow. 19. Mr Dunne gives this example. Having comprehensively demonstrated from the evidence that the characters in the letters were works of fiction, he did not go on to provide any guidance as to how that fact affected or could affect the jury's view on the intention that the prosecution had to prove. This criticism, he says, is compounded when one considers ground 5, to which we will return in just a moment. 20. In considering these submissions it is important to note that Mr Dunne concedes, in our view correctly, that the judge fully and fairly put before the jury numerous instances of fantasy contained in Smith's correspondence. Thus, it is not suggested that the judge mis-characterised the contents of the correspondence in any way. Moreover, we have held that he correctly directed the jury on the meaning of "incite" and it is not suggested that he did not correctly direct them as to the intention which the Crown had to prove. In this context he gave them this direction at page 6 at E, to which we have already referred: "The Prosecution must prove that the Defendant alleged to be inciting, intended by his action that the other Defendant should commit, depending on which count you are considering, the offence of rape or indecent assault, either on his own or with the Defendant who was doing the inciting." 21. The position is therefore as follows: (1) The jury knew that in the case of each defendant in order to convict him they had to be sure (a) that in the letters he wrote he incited the other defendant to commit rape or indecent assault, and (b) that in writing the letters he intended that the other defendant should commit the rape or indecent assault, as the case might be, either on his own or together with the writer. (2) The judge put all relevant facts before the jury, including the contents of the letters, which in any event the jury had in front of them as part of the evidence and which they could further study at leisure in the jury room when they retired. (3) It is conceded, again in our view properly, that the jury could safely convict either or both defendants on the evidence. The sole question is whether the judge gave the jury any or any sufficient direction as to how they should approach the letters, and in particular how they should approach the case if they found, as they were almost certain to do, that the references in the letters were to children who did not exist and to events which had not occurred. 22. Mr Woodcock submits on behalf of the Crown that, with one possible exception in relation to ground 5, the judge directed the jury entirely adequately. His submissions may be summarised as follows: (1) There was a perfectly clear case for the appellant to answer and the judge did not err in leaving it to the jury. (2) It was unnecessary for the Crown to prove that any real and intended victim existed at the time of the incitement to commit either of the substantive offences alleged. It was never the Crown's case that any of the characters referred to in any document put before the jury was a real person. (3) The thrust of the Crown's case on the letters was that they proved that, when there was an identifiable victim, the party incited would engage in the offences incited. The absence of an identifiable victim at the time of the incitement is not fatal to a valid count of incitement. It would be different if the Crown's case alleged, for example, that A incited B to rape C. In such a case there would be an averment that C existed. This is not such a case. (4) The case was presented to the jury at the outset as one in which substantial parts of the letters between the accused put before them were fantasies of the writers. Equally, it was self-evident from the appearance and construction of some of the letters that they were make-believe. (5) What was not make-believe or fantasy was the context in which the letters and documents as a whole were sent: (i) each accused was urging the other to considerable caution; (ii) Smith, by his subterfuge, had found employment of a type from which his licence prohibited him; (iii) Smith had begun a relationship with Carol Heslop, the mother of a small daughter; (iv) Smith had begun to cultivate a relationship with Sammi, a mother of two very young daughters - one was already of an age to which the facts of this case suggest Smith had a previous predisposition and the other would be of such an age when Sammi, who was in prison, was likely to be released. In this relationship Smith frequently urged her to secure reconciliation with her own parents, who had custody of the elder of the daughters. His confessed dream was that all three of them would one day live together; (v) Smith's correspondence with Turner frequently made clear that the plan was long term and that they should be patient; (vi) it was open to the jury to find that Turner was taking Smith's letters and promises seriously. If that was clear to the jury, it must have been clear to Smith. When Smith in one letter refers to sexual acts not to the liking of Turner, Turner informs him of his dislike. This is not consistent with purely fantasy letters and an absence of criminal intent; (vii) having listened to the entire contents of many letters written by each of the defendants to the other and read them again for themselves, the jury cannot have required any further direction from the judge as to what was meant in this case by fantasy. It is the human experience that many people possess sexual fantasies. It is doubtless the experience of many that people do exist who delight in sharing those fantasies, but the context of Smith's letters to Turner was such that a jury could safely and without further direction be sure that he intended Turner to engage with him in the depravity canvassed in the letters. The judge was painstaking in his summary of the defence case, including of course that of Smith. The jury cannot have been under any illusion as to what the defence were suggesting by use of the word "fantasy" after so careful analysis of the defence case by the judge. 23. It is not necessary for us to quote large passages from the letters given the concession that Smith had a case to answer. The evidence was entirely contained in the letters set out in the context referred to in Mr Woodcock's submissions. Neither defendant gave evidence, although both answered questions in interview from which it was clear that their defence was that the letters were pure fantasy and that there was no relevant incitement or intention. 24. No complaint is made as to the summing-up in relation to any of those aspects of the case, for example as to the inferences which might be drawn from a failure to give evidence or as to lies told in the interviews. We will refer to very little of the summing-up in this regard, but it included the following at page 16: "The Prosecution case is that Mr Smith and Mr Turner were engaged in a project, with the objective of unlawful sexual misconduct, specifically the rape or indecent assault of a young girl. The Prosecution say that the project may have been a long-term rather than a short-term project, and the Prosecution say that the time which lay between hope and expectation and eventual fulfilment may have been occupied to some, or a large extent, by pure fantasy, but the Prosecution say that that does not cast doubt on the objective. The Prosecution say you can infer that the two Defendants met in prison, and by the time of the letter of the 17th of August 2001 each knew what interested the other. In the letter of the 17th of August 2001 Mr Smith writes, 'We have the same interests, and I know I can trust you'. This is immediately followed by references to knickers, two year old Sophie, and later to taking photographs showing an erect penis." At page 18 the judge referred to one of the letters written by Smith as follows: "So can I then, members of the Jury, ask you to look at [page 22 of the defendant's bundle]. This is a letter from Mr Smith to Mr Turner beginning, 'Dear Uncle John...' Over the page there is a long description of indecent assault and rape [and a little later]: 'When you write back tell me about what we will do with Sophie when I bring her down. Imagine it's just you, me and her in a flat somewhere. My cock is rock hard just thinking about it." The judge continued: "The Prosecution say there is a long description of an event which may be, you could suppose, was either a description of a rape or an indecent assault, and the Prosecution say in this passage, here is incitement to Mr Turner to be involved in that. The Prosecution say in the letters from Mr Smith to Mr Turner there is emphasis on the need for caution and patience in that first letter he writes, 17th of August, you see at the end the instruction to destroy the letter after reading. The Prosecution say when interviewed Mr Smith almost certainly thought that there wouldn't be the material that would, if you will, compromise him in unpleasant correspondence. The Prosecution say if it is just fantasy it does not take patience, planning or time." 25. In the course of the argument in this appeal our attention has been directed to a number of further letters in this substantial bundle, including, for example, one dated 5th October, page 73 of the defendant's bundle, which includes the following quote: "We met another girl too, Samantha, she has two girls, one Rosie who is 4 and Sasha who is 10 months. She's gorgeous, I'll have her fanny sucked within a week I'm sure. I'm also dying to bring a little girl down so we can fuck, suck and lick her, but I'm not sure when it will be. To be honest, I'm not happy bringing any girl while your curfew is ongoing, they'll be monitoring every move you make and all they have to do is to see you with a child and you're fucked. We've got to be very careful." That too was said by the Crown to be an example of incitement in relation to bringing a girl down in the future. 26. We will refer to just one other matter. We were referred to a letter from Turner to Smith, which includes this: "Mick, please, please bring a little girl to see me that day you come to see me. My cock is waiting to be sucked by a little girl and I'm waiting ..." 27. It is submitted with considerable force by Mr Woodcock on behalf of the Crown that any future letters written after that to Smith of the kind to which we have already referred would be the plainest incitement such as to enable the jury to conclude that both the letters amounted to incitement and that Smith had the relevant intention described by the judge. 28. The judge referred expressly to another letter on page 20 of the summing-up which included this: "I am an expert at finding women with young kids". The judge also referred again to a sentence saying "you have got to be very, very careful". 29. The judge warned the jury about what he called "cherry picking" and told them that the letters must be considered in their context, but in our judgment the jury cannot have been in any doubt as to what the Crown were saying, and they cannot have been in any doubt that the Crown were saying that there was both the relevant incitement and the relevant intention. 30. Then between pages 25A and 30 the judge directed the jury as to the defence in some considerable detail. He began at page 25A in these terms: "Mr Smith's defence, members of the Jury. Consider what he actually writes, is it no more than just description, can simple description be incitement. Those are the sort of questions that are posed there. I mean, I have been through what the Prosecution say is significant about the material that he has produced. The Prosecution say there is material from which you can decide there was incitement, but Mr Smith's defence is, number one, these are just descriptions and that cannot be incitement. Contrast his material, say where Mr Turner is writing, 'Try your hardest to bring a girl for me to shag.' The chronology, Mr Dunne on behalf of Smith says, Smith was writing the fantasy documents that you see at the start of the Defence bundle for Turner's benefit. These were written obviously in prison, we have been through how they were found in the Oxley envelope. The only communication between Smith and Turner is on paper. There is the meeting at Durham Railway Station in August of 2001, but no evidence of mobile phone exchange. Sophie is a character from the fantasy documents, and, says Mr Dunne, read that letter, 17th of August, from Mr Smith to Mr Turner, in the context of the preceding documentation, which are the fantasy documents. All that was ever found in Mr Smith's possession were a pair of clean knickers, no children's clothing, no camera, whether a Polaroid or a camcorder type. The pictures that Mr Smith sent to Mr Turner are obviously from a catalogue, no real pictures sent. If you look in the Defence bundle at page 29 you will see the girl on the reference to '... girl sat on the orange slice', remember we are looking at the numbers at the bottom here. Mr Smith writes, 'I am enclosing some pictures for you to wank over, especially the little girl set on the orange slice.' The girl on the orange slice is the girl in the top left-hand corner of the document. On page 33 there is a picture of Sophie, that is page 32 in the Defence bundle. At page 38 there is reference to, that is in the Defence bundle, Danielle and Vicky. If you look at page 41, this top photograph in the middle is what Mr Smith sent relating to that description. All of these photographs are not of, well they are of real children, but they are not anything to do with Mr Smith, or remotely children from his world, or within his grasp, if you like, they are out of catalogues. The picture of Sophie is out of, I think it is called Thompson's Encyclopaedia, but maybe these children live miles away, or in different countries even. At page 73 in the bundle you could see there, members of the Jury, reference to Danielle and Vicky, and relating to the picture from the cut out. Hostel staff were interviewed by the Police. If you look at page 14 in the Defence bundle, Mr Smith is describing a relationship with someone called Lisa, hostel staff who were supervising Mr Smith at the time indicate there was no suggestion that Mr Smith was having any sort of contact or relationship with a woman as he is describing. The letter of the 22nd of August refers to Lisa, plainly in the sense of being an adult. At page 22, in the middle, there Mr Smith talks about having to cut down his visits to Lisa, as the hostel are starting to ask questions. No suggestion from the Police enquiries of the hostel that anyone was asking questions. Page 20 in this bundle, there is reference to the letter to Samantha Watts, just an example of fantasy, right at the bottom, 'My sister Sophie'. He has not got a sister Sophie, the sister is Sandra, Sophie is the name that was generated in the original fantasy material. At page 258 or so, 9 lines up from the bottom, 'I might be swapping my little Nova for an Escort. The van's better'. We have been through that. He never had a van. He had a Nova when he was arrested in August, and the Police, you will remember, looked in the Nova. Page 27, the letter to Samantha, he sends a photograph, not with a Polaroid or a camcorder or with a computer, it is from a photo booth, an indication, say the Defence, there of the sort of physical material he had available for his use. If he wanted a photograph he had to either take it out of a catalogue, or go to the photo booth. Page 48, there is more fantasy with Samantha Watts, when he talks about spending £28 for flowers for someone at work, and then the fantasy of the photograph not taken by Mr Smith, but a photograph he says of the folk at work. It is actually tenants at the Pennywell Bail Hostel, that is at page 62. MR WOODCOCK: Staff, in fact, your Honour was the evidence. JUDGE CARTLIDGE: Yes, staff. Thank you, Mr Woodcock. Page 59, he tells Samantha Watts about his family catering business. Page 69, members of the Jury, if we just look at that for a moment, the Defence say well here is about the plainest bit of fantasy you could see. When you look at it you see it is written in the present tense, it cannot be happening in reality in this fashion because, as you look at it, and you see he writes, 'She is sitting on the settee over there', and it is, say the Defence, quite obviously a fantasy description, the sort of thing, perhaps in a slightly milder form, you could find on the top shelf of a Soho bookshop. That is what that is, and you will remember Mr Dunne exploring that passage with you. Page 73, another example of something that just cannot be reality, but must be fiction or fantasy, 'I have met another girl too, Samantha'. Well, all right, he has not met her, but he has been writing to Samantha Watts. 'She has two girls, one Rosie.' All right, well Samantha Watts does have a child called Rosie. 'Sasha, 10 months. She's gorgeous, I'll have her fanny sucked within a week I'm sure'. There is no prospect of that. Rosie was, I think, in foster care. It does not really matter, Sasha, if she was not in foster care, was being looked after by the grandparents, there was absolutely no way Mr Smith was going to have any contact with either of those children, least of all within a week. Page 73 or so, there is reference to, 'I've cut some of Danielle's hair'. The Police recover not real hair, but they recover a nylon strand. He speaks there of taking Samantha out. Well, he is not going to be doing that, because Samantha, as we know, is in prison, and her earliest release date is something like 4 years or so ahead. Page 76, reference to his wife committing suicide, certainly by way of beginning a letter, 'My ex-wife has only gone and committed suicide'. That is in the first, second line of the letter, and plainly not really reality. Page 84, he writes to Mr Turner saying he's going to take the girl, presumably when one follows the context, Samantha, and two daughters to Tenerife. Well no, he is not, she is in prison, her daughters are not available, he has not met them, but here he is writing to Stevie Turner putting that in. Page 91, he describes his job as a patrol man on the Metro, with all the advantages that offers to someone who is interested in schoolchildren. But he is not a patrol man, he is a cleaner. Again, members of the Jury, I have gone through examples which the Defence say, in the context of this case, are significant, for it reveals that one, Mr Smith was concerned with description of events which were not reality, and here is proof that there were not real events, none of the people he mentions by way of children, apart from say Samantha Watts's children, can be shown to exist, and Samantha Watts's children do exist, but they are unavailable to him. So, the Defence say he has not incited Mr Turner. he has offered descriptions. If he was inciting, and we do not accept that, what has happened is they have indulged in a fantasy, and there was no intention such as that which you have to be sure about before you could convict Mr Smith of the two charges laid against him." 31. The judge thus gave the jury a number of examples of extracts from the letters which could not be reality but must be fiction or fantasy. In our judgment, there was no need for the judge to go further. The jury had to decide whether the contents of the letters were or might be pure fantasy or whether they could be sure that in the letters Smith was inciting Turner to commit real rape or real indecent assaults on real, if as yet unidentified, children, and whether he intended that Turner should in fact commit real rape or indecent assault. In short, we in essence accept Mr Woodcock's submissions made on behalf of the Crown. In our judgment, the jury were properly directed in this unusual case and grounds 3 and 4 fail. Ground 5: burden of proof 32. Ground 5 is as follows. While the judge had earlier directed the jury on the burden of proof, his later direction that they could acquit if they found that either defendant was engaged in fantasy was insufficient. At no point were the jury directed that if they found that either defendant was or may have been engaged in fantasy, then they should acquit. 33. There are two parts of the summing-up which are relevant to this point. In the first, at page 4G, the judge said this: "May I come on to the first direction about the law. I fancy it is one you are very familiar with, but it is so important that it bears mention at the very start of the summing up. The burden of proving the case rests from start to finish on the Prosecution, at no stage does that burden shift. So from first to last, if there is to be a conviction, it is the Prosecution who have the burden of proving the case, from first to last the Prosecution have the burden of proving the case they lay against each of the Defendants. The Prosecution only prove the case if, on the evidence presented to you, you are sure that the Defendant is guilty of that with which he is charged. So, there cannot be a conviction unless the Prosecution, who have from first to last the burden of proving the case, make you sure that the Defendant is guilty of that which he is charged." 34. In our judgment, the judge made the position relating to burden of proof abundantly clear in that passage. To put it colloquially, he laid it on thick, as no doubt counsel had done in the course of their final addresses to the jury. Then a few pages later, at page 8, he said this at G: "Each of the Defendants presents a different case, because each of the Defendants has written different material, although the Prosecution say both were participating in this exchange of correspondence. But it is obvious, I suppose, on reflection, that you could acquit one Defendant and convict another, you could convict both Defendants, you could acquit both Defendants, because if you consider the case of each on its merits you have to consider, for example, what each was intending. It may be that your decision is, one was engaged in fantasy the other was not, it may be your decision is both were engaged in fantasy. You must remember, of course, that it is for the Prosecution to prove the case, the Prosecution must make you sure that each was, if you are convinced one was inciting the other, each was doing it with the intention which I have already described." 35. In the course of oral argument Mr Dunne was not able to point to any particular part of that passage which amounted to a misdirection. That is scarcely surprising when it ends up with the judge again telling the jury that the prosecution must make them sure of the alleged incitement. Mr Dunne was reduced to saying that the problem was in the tenor of the passage, but for our part we are unable to agree. In our judgment, the judge made abundantly clear that the burden of proof was on the Crown throughout and that the standard of proof was that they must be sure. 36. It follows that ground 5 fails. We have considered each of these grounds together and cumulatively, but we have reached the firm conclusion that the conviction of the appellant Smith was safe. If follows that his appeal against conviction is dismissed. The appeals against sentence 37. We turn to the appeals against sentence. Both appellants appeal against sentence and both take essentially the same points. The judge drew no distinction between the two appellants. The sentences of immediate imprisonment were passed as longer than commensurate sentences pursuant to section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 . 38. On counts 3 and 4, the rape counts, the sentences passed were 13 years, made up of 8 years expressed as a commensurate sentence and 5 years as the longer than commensurate term. Further, the judge passed extended sentences on the rape counts of 23 years, made up of 13 years as the custodial term and 10 years as the extended period of licence. The effect of those sentences is that each appellant is liable to be recalled to custody after release at any time during the remaining period of the licence without the intervention of the court if the terms of the licence are breached. If recalled, his case will be reviewed annually by the Parole Board, but unless released pursuant to the direction of the Parole Board he would remain in custody until the end of the extension period. 39. On counts 1 and 2, the indecent assault counts, the sentences passed were 10 years in the case of each appellant, made up of 5 years expressed as a commensurate sentence and 5 years as the longer than commensurate term. In the result the total sentence was 10 years, which is in fact the maximum sentence for an offence of indecent assault. Although some doubt was expressed by the Criminal Appeal Office on this point, we are satisfied that the judge did not impose an extended sentence in the case of the indecent assault. 40. In addition, both appellants were made the subject of restraining orders pursuant to section 5A of the Sexual Offences Act 1997 for life. We have seen a copy of the restraining orders and they are undoubtedly in draconian terms. However, no complaint is made as to the terms of the restraining orders. Finally, having been convicted of sexual offences to which Part I of the Sex Offenders Act 1997 applies, both appellants were required to comply with the provisions of section 2 of the Act, namely notification to the police for an indefinite period. 41. It is conceded that in the light of Nelson [2002] 1 Cr App R (S) 134 and other recent cases such as Ricky D [2001] 2 Cr App R (S) 281, it could not sensibly be said that the judge was not justified in passing both a longer than commensurate sentence and an extended sentence in the case of both these appellants. However, it is submitted on behalf of both appellants that both the length of the custodial term and the length of the extension period were manifestly excessive. In the case of the sentence on the indecent assault counts it is further submitted that it was wrong in principle to impose the maximum sentence having regard to the fact that this was a case of incitement. 42. It is correctly conceded on behalf of both defendants that these offences were very serious indeed. In this respect we could put the position no more clearly than the judge did between pages 1 and 5G of the sentencing remarks: "Michael Smith, formerly Norman Marshall, is a 42 year old man. Stephen Turner is a 52 year old man. The jury, after a trial, have convicted each of the defendants of incitement to rape a female under the age of sixteen and incitement to indecently assault a female under the age of sixteen, so each defendant has been convicted on one count of incitement to rape, one count of incitement to indecently assault. The incitement occurred over a period from August 2001 to mid June 2002. The Prosecution case depended, for the most part, on written material passing between the defendants. The material was a catalogue of appalling depravity. It revealed a disgusting and shocking obsession with sexual perversion involving young female children. The letters were written to or from a little girl lover. There were fourteen original letters from Mr Smith to Mr Turner. Many drafts of letters from Turner to Smith were found and one unopened letter from Turner to Smith was found at Smith's address. The correspondence thus occurred over a ten month period, and it did reveal an enduring perverted interest in sexual relations between themselves and girls aged about six years. It is impossible to say how much of what was written was fantasy. I accept that much of the material involved a degree of fantasy, but it is absolutely clear that each of the defendants intended to abuse children where possible when opportunity eventually arrived. Each was engaged on a project to this end. The defendant, Smith, hoped for a relationship with a mother or mothers of children for this purpose. The defendant, Smith, in the correspondence actually expressed himself as expert at finding women with young kids. In August 2001, he began a relationship with a woman who was a serving prisoner. He had never met her, but I am convinced that what attracted him to this woman, of whom he knew little, was his knowledge that she had a young child or young children. In October 2001, the defendant, Smith, engaged in a relationship with a lady who was not a prisoner but had been introduced to him by a relation. The relationship was a short one because soon enough the defendant, Smith, was returned to prison in breach of his licence. The concern in relation to this lady was that she had a young child and it is obvious that Mr Smith was interested in her for the sake of a relationship with the young child. The defendant, Smith, after he was released from prison, changed his name and indeed obtained the tenancy of an address. None of these facts were known to the authorities. I emphasise that Mr Smith is not to be sentenced for changing his name or finding an address of which the authorities were ignorant, but it is a factor which I reflect on as I consider his case. Michael Smith has a conviction on the 19th November 1996, when he was imprisoned for nine years for six offences of indecent assault, two offences of taking or making an indecent photograph and two offences of obtaining by deception. The offences are described in the antecedent history. I will not myself go through them. All these offences are mentioned in the two reports I have. One report by Mark Ryland from the Sex Offender Team is dated the 4th April 2003. The other report from Gary Connor, a Probation Officer, is not dated but it is before me. I read from Mr Ryland's report at paragraph 17: 'Against all reliable actuarial measures available to me Mr Marshall (Smith) is assessed as a very high risk of re-offending, and given the nature of his offence type he presents a very high risk of causing serious harm to female children. He is a very plausible man,' this is paragraph 21, 'who has demonstrated to me that he is both knowledgeable and skilful in forming and manipulating relationships to give him access to children. His behaviour demonstrates a longstanding fixated attraction to female children. The fact that he has constructed such vivid fantasies is alarming in that this behaviour alone, without the element of incitement, represents a worrying lapse towards offending behaviour that does not seem to have occurred to him.' Mr Connor comments at paragraph 11 in his report: 'That the present offences occurred shortly after release from a lengthy prison sentence within which Mr Smith has completed two offending behaviour programmes is alarming. His breach of past court disposals, breach of licence and breach of Sex Offender order all indicate he is prepared to persist in behaviour that increases the risk of further offending. The change of name by Deed Poll and taking up employment indicate his continued wish to place himself in positions that allow him to target vulnerable women and children away from the intended restrictions of a Sex Offender order in place. Mr Smith's admitted lack of will to accept restrictions placed upon him led him to state 'I will never co-operate with Probation', therefore it is difficult to see how he can be effectively monitored or supervised in the community.' Stephen Turner has convictions dating from November 1972. He was placed on Probation for two years for two indecent assaults on females over the age of sixteen. In 1974, a suspended prison sentence was imposed on him for two indecent assaults on females over the age of sixteen. In August of 1974, he was sent to prison for a total of eighteen months, having breached his suspended sentence, when he was convicted of indecently assaulting a female over the age of sixteen. In 1976, he indecently assaulted a female and was sentenced to eighteen months. In 1982, he indecently assaulted a female and was sentenced to twelve months' imprisonment. In November 1990 he indecently assaulted a female. He received an eighteen months sentence wholly suspended. On the 19th June 1998, for gross indecency with a child, the Court imposed a five year sentence of imprisonment. I have a report on Stephen Turner from the Sex Offender Team, in person a report from Felicity Loxley, dated 27th March 2003. I have a report from Tanya Graham, a Probation Officer, dated 2nd April 2003. Paragraph 12 of Miss Loxley's report observes: 'In my view Mr Turner has manipulated colleagues in the Prison Service and South Yorkshire Probation Service by clearly planning these current offences whilst attending programmes designed to help stop men re-offending and whilst in prison on licence. This does not bode well for his future management. Mr Turner is aware he is facing a lengthy custodial sentence. To his credit he recognises that if he is to reduce a risk in the future he will need to be motivated towards change prior to engaging in further work on any prison-based Sex Offender Treatment Programme, which would otherwise serve no useful purpose for him. I left him in no doubt that he would be considered a high risk of re-offending. He needs to find a way to accept full responsibility for the offences and examine his attitudes to sex and develop an understanding of how his victims felt then, now and how they may be affected in the future." 43. As we understood counsel's submissions, none of those conclusions expressed by the judge is in issue and they undoubtedly justified long sentences. However, it is stressed on behalf of both appellants that no rape or indecent assault, or indeed attempt to rape or attempt to commit an indecent assault, was alleged by the Crown, let alone proved. 44. It is submitted that the sentences were manifestly excessive and wrong in principle on the basis that the judge gave insufficient weight to the fact that the substantive offences of rape and indecent assault were not committed. There was a lengthy course of correspondence, but it did not in the event lead to any actual harm to young children. Indeed, it is right to say that exhaustive police enquiries revealed that nothing untoward had happened to the one child who had come into contact, for example, with the appellant Smith. Equally, there are no substantive allegations against the appellant Turner. 45. In our judgment, while the effect of the incitement is of no relevance to whether or not the offence of incitement was committed, it is plainly relevant to the length of the sentence to be imposed. 46. It is correctly conceded, in our view, that the judge was entitled to have regard to the potential for harm, and there was considerable potential for harm having regard to the reports which are referred to in the passages from the judge's sentencing remarks to which we have referred. 47. It is submitted that the judge must have taken too high a starting point. It appears that he took as a starting point eight years for the rape offences. It is submitted that he may have misdirected himself by referring to the leading case of Millberry , which gives eight years as a starting point for offences of aggravated rape of this kind, whereas no offences of rape were in fact committed here. 48. We have reached the conclusion that there is force in that submission and that the judge passed a manifestly excessive sentence in choosing eight years as the commensurate sentence for the rape offences. We have reached the conclusion that the commensurate sentence should have been of the order of six years. We have also reached the conclusion, having regard in part to that conclusion, that the longer than commensurate period of five years was also excessive. The authorities show that some regard must be had to proportionality in this regard. We have reached the conclusion that the appropriate figure would be three years, making a total period of nine years' imprisonment in all. 49. As to the extended period of licence, it is correctly conceded, in our judgment, that this was an appropriate case for making an order, but in all the circumstances, and again in part having regard to the conclusions that we have just expressed, we have reached the conclusion that for the rape offences an extended period of ten years was too great and that a period of five years was appropriate. It follows that for the rape offences the whole period, including the extended period, will be fourteen years made up of nine years' imprisonment, of which six years is the commensurate period and three years is the longer than commensurate period, and an extended licence period of five years. 50. Finally, we turn to the indecent assault counts. There, for substantially the same reasons, we have reached the conclusion that the commensurate period should be five years and that the longer than commensurate period should be two years, making a total of seven years. We do not think it appropriate to impose an extended period of licence in the case of the indecent assault. 51. In conclusion, Smith's appeal against conviction is dismissed. Both appellants' appeals against sentence are allowed in part to the extent that we have indicated.

```yaml citation: '[2004] EWCA Crim 2187' date: '2004-07-05' judges: - LORD JUSTICE CLARKE - MR JUSTICE HENRIQUES - MR JUSTICE BEATSON ```

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: 201004932A1, 201100472A1 Neutral Citation Number: [2011] EWCA Crim 397 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 10 February 2011 B e f o r e : LORD JUSTICE AIKENS MR JUSTICE IRWIN HIS HONOUR JUDGE ROBERTS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v DARREN LEE BAILEY - - - - - - - - - - - - - - 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 GA Russell appeared on behalf of the Appellant Mr P Mytton appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE AIKENS: I will ask Irwin J to give the judgment of the court. 2. MR JUSTICE IRWIN: At 8.45pm on 14 February 2010, Ms Randall and Mr Marsden were sitting outside the Coventry Rail Station on a bench. Mr Marsden looked up and saw this appellant sitting on his (Marsden's) moped. He shouted out, asking the appellant what he was doing. The appellant said, "Where's your keys and helmet?" Then he got off and walked towards the couple on the bench. Mr Marsden said the keys were in his pocket and the helmet was under the bench. The appellant had been drinking and it was clear that his demeanour was threatening. He then started to walk back towards the moped, so the lady, Ms Randall, walked past him and sat on the moped. 3. The appellant stood right next to her and said, "If you don't get off the fucking bike, I'll push you off it. I'm a thief, that's what I do". Ms Randall offered him money to leave the moped alone. He asked her how much, and she said about £5. She called a friend, Ms Hutchins, and asked her to get her bag which she had left on the bench. Ms Hutchins brought the bag over. The appellant turned to her and said, "I'll hit you and push your mate off the bike". In short, by these means he extracted the total amount of money which was in the purse, which was £7.50. 4. As Ms Randall was looking for the money, the appellant put his arm around her shoulder and tried to look through the purse to see if she had more money, but was told to leave her alone. 5. Once the money was handed over, the appellant put his arm around Ms Randall's shoulder again and tried to put more pressure upon her, but eventually she said she did not have any more money. He removed his hand. He walked off, and that was the end of the incident. It had lasted about ten minutes and Ms Randall had been quite significantly frightened by the appellant's actions. 6. The police were contacted and attended, came across the appellant, who was aggressive towards them, and eventually was arrested after a struggle, during the course of which one of the officers was struck in the face. 7. After his arrest, the appellant was held in custody. He has a terrible record of offending, almost all of it relating to alcohol abuse. He has four convictions for threatening behaviour, two for assault (or battery and assault), one for robbery and one for affray. He was born in 1979 and so was 30 years of age at the time of the offending. 8. A pre-sentence report was prepared, setting out the full background. He came before HHJ Ross at the Coventry Crown Court on 27 July 2010, was re-arraigned on the indictment and pleaded to the blackmail count which had been laid against him based on these facts, and to resisting arrest by a police officer. 9. On 13 August he came again before HHJ Ross at the Coventry Crown Court for sentence. Judge Ross made it clear that he wanted to create a sentence which would give this appellant a real incentive to tackle his alcohol addiction, which was clearly at the root of his offending. He said this in sentencing: "Short sentences have not worked for you. None of the sentences of imprisonment that you have endured have gone in any way to deal with your drug and alcohol problem. The time has come, it seems to me, to look to deal with that in another way. This is a matter which is so serious that only a custodial sentence is appropriate, but I'm going to suspend it. But I make it clear that the fact you have spent 175 days [in fact it was 178 days] on remand is one of the aspects which I have taken into account in identifying that I can deal with this matter by way of a 12-month sentence of imprisonment which I can suspend. I make it clear to you that if you breach my order in any way, none of the time spent on remand will count towards your sentence." 10. A little later he repeated the same message and directed that the national standards of the Probation Service were not to apply in this case and that any breach at all should lead to the appellant being brought back to court. 11. The appellant did not comply with the significant conditions which had been attached to the suspended sentence. He breached the curfew twice. According to the probation officer, he showed complete disregard of the curfew. He did not attend the community alcohol service. He continued to drink, and the probation officer reported that the appellant had said to him on numerous occasions that he would rather serve a sentence and come out "scot-free" than have to live up to the requirements of the conditions of the suspended sentence. 12. He came back before HHJ Ross for having breached the conditions of the suspended sentence. There is some confusion about what date he reappeared, but thanks to the assistance of counsel, we presume that 22 October 2010 is correct. The details of breaches were outlined before the judge. He implemented the 12 months' imprisonment. He ordered 14 days spent on remand, since arrest for the breaches, should count, but he ordered that the 178 days on remand before the suspended sentence was passed should not count. He revoked all of the community orders and conditions, and also fined the appellant £10 for drunkenness, which was to be dealt with by way of one day imprisonment in default. 13. Grounds of appeal had already been lodged against the original sentence in August. The contents of those grounds we need not summarise, because they were subsequently altered in the following fashion. On 18 January 2011 this case came before a different constitution of this court. Directions were given, including a direction for counsel to reformulate the grounds of appeal. There are three re-formulated grounds: that the sentence handed down on 13 August was manifestly excessive in the context of the direction that the 178 days on remand should not count; secondly, that there was an error in principle by imposing a suspended term of custody in the light of the 178 days spent in custody prior to sentence; and thirdly that there was an error in principle in failing to give credit for the days spent. In our judgment, all three of those grounds effectively converge. 14. The 178 days served before the initial sentence are nearly the equivalent of a 12-month prison sentence - some nine days short. It is said, in substance, that it was excessive to pass a suspended sentence with the direction that went with it for the facts of this offence. 15. We think the appropriate sentence here, allowing some credit for the late plea, would have been a sentence of 12 months' imprisonment. Of course, the judge was simply attempting to help this appellant by giving him the maximum incentive to change his life, but a suspended sentence of imprisonment is still a sentence, and if there is a breach, it is liable to be served. It is not in the end appropriate, however well intentioned, to pass too long a sentence with the intention of giving an incentive to reform. In any event, an alternative option would have been a community penalty in the light of the time served. 16. It is also correct that if a sentence is being passed, or a suspended sentence passed, normally credit must be given for days served on remand. That is the effect of section 240(3) of the Criminal Justice Act 2003 and of section 240(4)(b) . It is not necessary for us to read the text into this judgment. 17. Guidance has been given on this issue by Sir Igor Judge, President of the Queen's Bench Division (as he then was), in the case of Gordon and others [2007] 2 Cr App R (S) 66, in particular at paragraph 31 and paragraph 48. The essence of that guidance is that there must be really clear reasons for any direction under section 240(4)(b) that credit should not be given, and that if there is such a direction, those reasons must be spelt out in the course of the sentencing remarks. No such reasons arise of the quality or nature envisaged by this court in Gordon on the facts of this case. Although the judge did, on the initial occasion, say he would not give credit and reminded the appellant of that on the final sentencing occasion, he did not explain fully why he was doing so. The natural implication of his words is simply that he wanted in effect to pass a longer sentence, to be effective if there was a breach. 18. Since the appellant served 178 days on remand and another 81 days thereafter, the appropriate course here is as follows. We decline to quash the sentence of 12 months' imprisonment passed on 13 August. It was a proper sentence to pass given the facts. We quash the direction indicated on 13 August and made effective on 22 October (if that was the correct date) that the 178 days should not count towards the 12-month sentence, and we direct that credit should be given for those days under section 240 , meaning that that sentence had effectively been served by the time of the breaches and sentence for the breaches. We do not order that any of the remaining days of the original 12-month sentence should be served. 19. In respect of the breaches of the suspended sentence, we pass a concurrent prison sentence of 19 weeks and one day in respect of all breaches, with the effect, if any adjustment in that term is needed, that this appellant may be released today. He has not got off "scot-free", but he does have no outstanding penalties from these offences as from today. It will of course be his choice whether he avoids future offending. He now has the chance to prove that he can.

```yaml citation: '[2011] EWCA Crim 397' date: '2011-02-10' judges: - LORD JUSTICE AIKENS - MR JUSTICE IRWIN - 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} ======

Neutral Citation Number: [2009] EWCA Crim 1326 Case No: 200802636 B4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT LEEDS T 20037108 Royal Courts of Justice Strand, London, WC2A 2LL Date: 06/07/2009 Before : LORD JUSTICE KEENE MRS JUSTICE DOBBS DBE and HH JUDGE STOKES QC, RECORDER OF NOTTINGHAM (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : Holderness Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Peter Weatherby (instructed by Switalskis Solicitors, Wakefield WF1 2TF ) for the Appellant Andrew Campbell QC (instructed by CPS, Bradford BD5 0QH ) for the Respondent Hearing dates : Monday 29 June 2009 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Keene : 1. On 29 September 2003 at Leeds Crown Court before His Honour Judge Taylor, the applicant was convicted of murder and was the following day sentenced to life imprisonment. She now applies for an extension of time in which to seek leave to appeal against conviction and for leave to call fresh evidence, these matters having been referred to this court by the single judge. We grant the extension of time and the application for leave and we treat this hearing as the hearing of her appeal. 2. The victim of the killing was the appellant’s mother, a 70 year old woman, who was killed on the morning of 13 February 2003 some time after 9.15am. There was no dispute at trial that she had been killed by the appellant, who had struck her repeatedly with a marble rolling pin in the hallway of the victim’s home. The victim had been struck to the head, neck, chest and elsewhere. Some of the injuries suffered seemed to be defensive in nature. The appellant left the deceased’s house carrying a white plastic bag containing the top the appellant had been wearing, a hand towel, a face cloth and part of the rolling pin that had broken off. All these items, and the clothing the appellant was wearing, had blood on them. 3. The defence case was that she was only guilty of manslaughter, either by reason of provocation or because of diminished responsibility. As we shall describe, expert psychiatric evidence was called on both sides at trial. The jury, as we have indicated, rejected both defences. Provocation is no longer an issue. The fresh evidence which this court has received relates to the defence of diminished responsibility, available under section 2 of the Homicide Act 1957 . Under that provision it is for a defendant to prove, on the balance of probabilities, that at the relevant time he was “suffering from such abnormality of mind … as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.” 4. At trial evidence was called about psychiatric problems which the appellant had had in the past. Beginning at least in 1993 when she was aged 33, she had from time to time suffered from symptoms of depression and had been treated accordingly. She had had a number of problems in her personal life, beginning from when she had been a child but continuing into adulthood. Amongst other things, she alleged that she had been sexually abused from the age of 9 by a number of men, including her father, with her mother’s knowledge and complicity. Whether true or not, there is no doubt that she had had a persistent problem of alcohol abuse over many years, as she said at trial, as well as drug misuse. Her evidence was that when she drank, she sometimes shouted and threatened people. The jury heard how on 2 September 2002 she had been admitted for 5 days to the Priestley Psychiatric Unit of Dewsbury and District Hospital as an informal patient, having been arrested for trying to break into a house where she believed her missing daughter was. At the time of admission she was noted as having a long history of alcohol and drug misuse. The diagnosis was of mental and behavioural disorder due to psychoactive substance abuse. 5. She was seen twice more after that in the out-patient clinic, the second time being on 8 October 2002, when she described feeling “knocked back” by her step-father dying suddenly the night before. No psychotic phenomena were observed. That was the last time she was seen by the psychiatric services before the killing of her mother on 13 February 2003. 6. The evidence at trial about the circumstances surrounding the killing can be summarised very briefly. Her own evidence was that she had been drinking with her daughter and others at a couple of pubs on the afternoon and evening of the 12 February and that she had drunk 10 bottles of alcohol, lager and alco-pops. She accepted that by the time of leaving the second pub, at about 11pm, she was probably drunk. She was seen a little later outside her mother’s house, shouting and banging on a window, and then she went home, where again she was heard shouting in the street. One witness thought it sounded like someone drunk going home. It went on for about an hour, and when a neighbour went round to see her, she said something which he thought sounded threatening. He described her as appearing “not quite with it, not drunk but not right”. She also went and knocked on another door and told the man who answered “You don’t go messing about with a kid’s sexuality”. She came back about 15 minutes or so later, knocked again and swore at him, and then left. She came back a quarter of an hour later and apologised, before being threatening. He told her to go home and sleep it off. He later told the police it seemed like an amphetamine psychosis rather than drunkenness. 7. All this the jury heard, as it did evidence about her being seen the next day leaving her mother’s house at about mid-day carrying a white plastic carrier bag. She seemed sober, though she told one couple who knew her that she and her daughter had been out on the piss the night before. There is no dispute that, when she left her mother’s house, she was wearing her mother’s black leather jacket, having taken off her own blood-stained top. 8. Her own evidence at trial was that she had gone to her mother’s house to ask why her mother kept bringing up the past. They both stated screaming and shouting at each other and she told her mother that her father had never loved her mother. Her mother slapped her face. The appellant hit her mother. She could not recall where she got the rolling pin from or the number of times she hit her mother. In cross-examination she said she hit her mother because her life had become a nightmare and she killed her mother because she had been talking about her father and provoking her for years. 9. The body of her mother was discovered the next morning, 14 February and the appellant was arrested a little after midday. She was seen by a police surgeon, a GP, first, who was told by the appellant that she had been admitted to a psychiatric unit the previous year after a night’s heavy drinking. The GP saw no signs of paranoia but only a mild depression, and concluded that the appellant was fit to be interviewed but could be vulnerable because of anxiety. She was then seen by Doctor Radcliffe, a Consultant Psychiatrist, at about 4.20pm that day, 14 February. 10. He was, therefore, the first psychiatrist to see the appellant after the killing. He noted that her speech was normal in tone and flow and her answers appropriate to questions. He observed no evidence of any thought disorder, describing her as clear and coherent, and orientated in time, place and person. He saw no signs of major depressive symptoms or hypomania, that is, of even a mild degree of mania. He recorded that “there was no evidence at interview of any abnormal beliefs or perceptions.” 11. Doctor Radcliffe gave evidence at trial to this effect. He went on to say that “if someone was suffering from a mental illness of moderate or severe form I think it would be very difficult for them to conceal it from a psychiatrist. You can’t just perk yourself up from an illness of that kind as you can if you are suffering from a mild degree of depression. I don’t think it’s possible to turn on and off a mental illness.” However, he added that one could not extrapolate back and ascertain what her mental state was some 30 hours earlier when the killing had taken place. 12. The appellant was then interviewed by the police with an appropriate adult present, as well as a solicitor. At first she denied any involvement in her mother’s death. Later, when she was confronted with bloodstained items found in the bag at her home, she lied and said she had cut her hands. Then she said that she had found her mother cold and limp in her mother’s home and that she had got blood on her own clothes from picking her mother up. That too was ultimately conceded to be a lie. 13. On 17 th February 2003, a registered mental nurse recorded the appellant as saying that she had heard her father’s voice since the time of his death, but that he never said anything derogatory. 14. She was seen by another consultant psychiatrist, Doctor Berry, on 27 February 2003, that is two weeks after the killing. She referred to symptoms of lack of sleeping and eating, feelings of hopelessness and wanting to die. But she said these symptoms had come on after her arrest and not before. Before her arrest she had been “doing alright”. Doctor Berry found no abnormal beliefs, hallucinations or thought disorder. He diagnosed the appellant as suffering from a depressive adjustment reaction, brought on by her arrest and remand into custody. He found no evidence of any significant mood disorder prior to her arrest. When Doctor Berry saw her again on 13 March, he found her lower in mood. She realised that her mother was dead, she said. He concluded that she was becoming more depressed “in the context of a grief reaction”. 15. The jury were told by the Judge that there was no dispute that after about 20 March the appellant then developed a severe depressive illness with psychotic features. She began to speak of God being inside her and of making love to God, that God spoke to her, that the prison staff were all actors and of other delusions, and her behaviour became more bizarre and disordered. She was, of course, remanded in custody through this time. She spent some time on the prison hospital wing, where she was treated with anti-depressant medication, to which she responded sufficiently to be transferred out of that wing on 7 June 2003. Thereafter she was seen by Doctor Rix, a consultant psychiatrist retained by the defence, on 16 July 2003, 19 August 2003 and 19 September 2003, and by Doctor Battacherjee, a consultant psychiatrist retained by the Crown, on 11 September 2003. Both gave evidence at the trial later in September that year. In brief, Doctor Rix concluded that at the time of the killing the appellant had psychotic symptoms which were part of a mental disorder that the jury might recognise as an abnormality of mind. Taking all the symptoms together suggested that it might have been a very unusual type of depressive illness or a depressive illness mingled with a psychotic illness. The efforts of the appellant to clear up the crime scene did not affect his conclusion. 16. He acknowledged that the appellant had not made mention of any delusions when examined by Dr Radcliffe and that she had told that psychiatrist that she had not had any depressive symptoms at the time of the killing, but he said that she may have been keeping her delusions to herself and may have thought of being in a low mood as the norm. In cross-examination, he agreed that there was no evidence of psychotic symptoms when she was sober, until after her arrest and being charged with her mother’s murder. 17. Doctor Bhattacherjee accepted that the appellant had developed a severe depressive illness with psychotic features while on remand in custody, but he ascribed that to her distress at her arrest and remand and to grief at the loss of her mother. Her behaviour the night before the killing was consistent with someone who had had a lot to drink. He accepted that she had predisposing factors making her vulnerable to the development of a severe depressive illness, but he could see no evidence of an abnormality of mind at the time of the killing. It is implicit in what we have said that by the time of trial there was no dispute that the appellant was fit to stand trial. 18. We have taken a little time over dealing with this material which was before the jury, because it provides the context in which the fresh evidence put before us has to be judged. All the evidence, factual and expert, to which we have so far referred was before the jury. We turn then to the new material. 19. Some of the new material consists of undisputed facts about events since her conviction and sentence. She was sentenced to life imprisonment and no question of any order under the Mental Health Act 1983 was even raised. She seems to have coped reasonably well with custody until about August 2004, when she experienced a manic episode. She had been receiving anti-depressant treatment, but that had been progressively reduced. On 21 December 2004 she was transferred to Newton Lodge Regional Secure Unit for psychiatric treatment. Her Responsible Medical Officer (“RMO”) was Doctor Isaura Gairin, a consultant psychiatrist, whose report dated 13 July 2007 is before this court and is not in dispute. 20. Her report indicates that the appellant’s admission to Newton Lodge was because of suspicion of a mental illness, probably bipolar affective disorder, and that indeed was the diagnosis eventually arrived at and for which the appellant then received treatment. Typically, that disorder consists of alternating manic and depressive episodes separated by periods of normal mood, but in the appellant’s case the manic and depressive symptoms seemed to occur at the same time, suggesting a diagnosis of Mixed Bipolar Affective Disorder. Doctor Gairin felt that it was inappropriate for her to comment on whether the appellant was ill at the time of the offence. 21. While the appellant was in Newton Lodge, she was seen by another consultant psychiatrist, Doctor Green, retained on her behalf, on 3 and 10 September 2006 and in March 2007. Doctor Rix saw her again on 8 February 2008 and Dr Bhattacherjee on 7 November 2008. All three psychiatrists have submitted reports and given oral evidence before us. We would add for completeness that the appellant left Newton Lodge in April this year and returned to the prison system, as her condition had stabilised. 22. There is a certain amount of agreement amongst these experts, and we are grateful to them for having met and narrowed the issue somewhat. Amongst what is agreed is the following: “1. Ms Holderness had a predisposition to the development of a mental disorder which pre-dated the index offence. 2. Ms Holderness has a history of treatment by Psychiatric Services including an admission to hospital in 2002. 3. When Ms Holderness was a remand prisoner in relation to the index offence she became psychotic. By trial her condition had stabilized and she was asymptomatic. Post-conviction, Ms Holderness was transferred to the Yorkshire Centre for Forensic Psychiatry (Newton Lodge), after she became psychotic again. She remains in Newton Lodge regional secure unit. 4. Ms Holderness was stable when we assessed her. 5. Whilst in Newton Lodge. Ms Holderness has been diagnosed as having a bipolar affective disorder (BPAD). It is arguable that the correct diagnosis is one of schizoaffective disorder, however any distinction, in the forensic context, is not significant. These conditions are severe mental illnesses. 6. The account Ms Holderness has given of sexual abuse in childhood could be: (a) real; (b) delusional; (c) a mixture of the two; or (d) fabricated. Her presentation is consistent with someone who has suffered such trauma. 7. She has a significant history of alcohol misuse and some history of other substance misuse.” 23. We turn to the evidence of the individual witnesses. 24. Dr Rix has observed in his report of February 2008that “the appellant is now more forthcoming” about her history prior to the killing of her mother. She told him in the more recent interview how, after discharge from the Priestley Unit in September 2002 she had thought that people were warning others that she was coming into Dewsbury. Once in the period before Christmas she had thought that people could listen to her thoughts. She thought that her drinking water was contaminated, that she was related to the Queen and worth millions, and that people were looking at her in a sexual way. She told Doctor Rix that at the time of the killing she believed that her father was living in her body, and that she heard voices in her head telling her to kill her mother. These are merely some instances of her revelations. 25. Doctor Rix explored with her why she had not mentioned these things before trial. She said that she thought that if she proved she was well, “they would let her go”. In cross-examination, he accepted that she had not expressed abnormal thoughts or beliefs to him before trial, save for a reference to feeling that someone was in her body. Otherwise there had been no evidence of psychotic symptoms when she was sober around the time of the killing. 26. Doctor Rix regards her reasons for the absence of earlier disclosures as credible and her account as having the “hallmarks of genuineness”, though he acknowledges the possibility that she is fabricating. He regards her account as being too sophisticated to be fabricated. Moreover, patients vary in their recall of experiences, sometimes recalling delusions recorded at any earlier date but denied at an intermediate time. That may happen, even when they have recovered. The memories may not be accessible to such a person. However, Doctor Rix accepted that the killing itself may have triggered or exacerbated her mental illness. 27. On the basis of what she has now revealed about her mental state prior to the killing and of her subsequent psychiatric condition, he is of the view that she was suffering from a serious psychiatric illness before, during and after the offence. What has happened since has strengthened the opinion he expressed at trial. However, Doctor Rix accepts that the appellant’s credibility is crucial to his conclusions and that she had originally lied to him about the circumstances of the killing, as she had to the police and to Doctor Hargreaves, who had been retained on her behalf. He also acknowledges that she made no reference in her own evidence at trial to having had any delusions at or before the time of the killing. And he conceded that, if she had been mentally ill at that time, she would have been likely to have exhibited disordered symptoms to Doctor Radcliffe. 28. When interviewed by Doctor Green in September 2006, the appellant told him that she had heard voices for most of her adult life, especially female voices giving her instructions or threatening her. She said that after discharge from the Priestley Unit, the voices would tell her to hit her mother as punishment for letting her be sexually abused as a child, and that these experiences went on up to the time of the offence. She produced a piece of paper listing some of the delusions she said she had had during this period, including (in addition) the belief that she was related to a raptor because of her feet and that she was related to the Royal Family and worth millions. When asked why she had not said this to any of the psychiatrists pre-trial, she said she thought they might let her go if she was well. In his second report, dated March 2007, Doctor Green observes that: “The issue as to whether Ms Holderness was suffering from a major mental illness at the time of the index offence is dependent upon the interpretation of the account that Ms Holderness now gives of her psychotic symptoms (including hallucinations and delusions) predating her index offence.” His opinion, as expressed to this court, is that, on balance, she is not fabricating her account of hallucinations, but that it is unclear whether she was in fact delusional at the time of the offence or is now projecting back delusional memories, or a mixture of the two. 29. Doctor Green acknowledged that the appellant did not bring to the attention of the various psychiatrists who saw her on remand the symptoms which she now says she had before the offence, and also that there is little evidence from medical records of her having reported earlier psychotic symptoms during that period. But he told the court that the explanation she gave for her failure on remand to recall her earlier delusions, while not making much sense, may itself be symptomatic of her mental illness. He accepted that there was no evidence from those who had been with her drinking on the day and evening before the killing that she had shown any disturbed behaviour. He also agreed that Doctor Radcliffe had had the advantage of seeing the appellant before the offence and yet had not discerned any signs of psychosis after the offence on 14 February 2003. Doctor Green acknowledged that, while it was not impossible for an experienced psychiatrist to miss such signs, it was more likely that he would discern them if they were present. 30. Doctor Bhattacherjee , called before us by the prosecution, conceded that the symptoms identified at the time of the admission of the appellant to the Priestley Unit in 2002 could be consistent with mental illness, as could her behaviour on the night of the killing, as observed by neighbours, though it was also consistent with drunkenness. But he made the point that the admission to the Priestley Unit and the symptoms then noted in no way resemble the psychotic episodes she has experienced in custody. He accepted that matricide is rare and that this was a sustained attack. But he remains of the opinion he expressed at trial. 31. He is sceptical about the new account given by the appellant of the delusions said to have been suffered by her before the offence, and he emphasised the difficulty a patient would have in concealing such abnormal perceptions. The symptoms now described indicate an extremely severe and florid episode of psychosis, with very intense and wide-ranging delusions. There were grandiose and bizarre delusions. There were auditory hallucinations, obsessive features, and delusions of thought control, all indicating a very grave state of disturbance. In Doctor Bhattacherjee’s opinion it is very unlikely that such extreme symptoms would not have been manifest. Yet not merely had she not mentioned these to him when she was interviewed by him shortly before trial, but she did not do so at the time when she was disclosing some symptoms while on remand. She would not during that episode have been able to conceal other abnormal perceptions, because all would have seemed normal and real to her. 32. We announced at the conclusion of the evidence and submissions that we proposed to dismiss the appeal, and we now explain our reasons for doing so. This is a case where there is undoubtedly fresh evidence available, if only to the extent that the appellant has experienced another episode of severe mental illness since her conviction, either bipolar affective disorder or a schizoaffective disorder. That followed on from her earlier episode while on remand. The real issue is what her condition was at the time of the killing. 33. Both Doctor Rix and Doctor Green are of the opinion that, on balance, she was at that time suffering from an abnormality of mind within the meaning of section 2 . But as Doctor Rix and Doctor Green acknowledged, that is an opinion crucially dependent on the account she now gives of her delusions and other psychotic symptoms as they were before and at the time of the killing. Even though both those psychiatrists refer to other evidence, such as the nature of the killing itself, a frenzied attack on the appellant’s mother, her credibility is clearly fundamental. 34. That credibility is inevitably damaged by the series of lies which she told after the killing, not only to the police and others in authority, but to both the psychiatrists retained on her own behalf – first Doctor Hargreaves and then Doctor Rix. She persisted in those lies for some time, for over 5 months. 35. Then one has to consider the explanation for not having referred to her delusions, the voices and so on, in the period leading up to trial and at trial itself. Her main explanation was that she thought that if she seemed well, “they” would let her go. But the trouble with that is that by the time of trial, she could have been under no illusion about the chances of being “let go”. She was by then free of symptoms and fit to stand trial. She must have been aware that seeming well was not going to get her off the charge of murder. 36. We can accept that there can be some instances where there is a failure on the part of a person with the appellant’s problems to be able to recollect earlier delusions. That cannot be ruled out as a possibility. But that was not the explanation proffered by the appellant for her failure to disclose earlier these delusions said to have existed at around the time of the killing, and it seems to us to be less than probable in the circumstances of this case. 37. Moreover, one has to bear in mind that she had had ample opportunity since conviction to mix with other mental patients and to observe their delusions and other experiences. As Doctor Rix fairly acknowledged, one cannot discount the possibility that that is how she has come by this knowledge of various delusions. 38. In addition to the doubts which there must be about the reliability of the accounts she now gives of pre-offence delusions, there is the great difficulty faced by the appellant that an experienced psychiatrist, Doctor Radcliffe who saw her the day after the killing saw no psychotic features. He was the first consultant psychiatrist to examine her after the offence, seeing her at 4.20 pm the next day. While he agreed at trial that one could not extrapolate back from that to the previous morning, his evidence was also that one cannot just turn a severe mental illness off and on. In any event, both Doctor Rix and Doctor Green have accepted that, if the appellant had been mentally ill at that time, she is likely to have exhibited disordered symptoms to Doctor Radcliffe on that occasion. The fact that she might have managed to conceal them, which Doctor Bhattachejee disputes anyway, would not suffice to enable the appellant to discharge the civil burden of proof resting upon her. We attach significance to the absence of observable symptoms of psychosis when seen by Doctor Radcliffe so soon after the killing. 39. It seems to this court that, while the appellant was, at the time of the offence, predisposed to develop a mental disorder, it is more likely that it was the impact of the killing, the arrest and the incarceration of her that brought about the serious mental illness which she subsequently experienced. Certainly on the balance of probabilities it has not been shown that she was suffering from an abnormality of mind within the meaning of section 2 at the time of the killing. 40. Mr Weatherby on behalf of the appellant has referred to the well- known decision in Pendleton [2002] 1 CAR 34 and to the need for this court to remember that it must not usurp the role of the jury. We bear that in mind. The test in the present appeal is whether a jury might reasonably have found the defence to have proved on the balance of probabilities that the accused had been suffering from such an abnormality of mind as substantially impaired her mental responsibility for the killing. But as was later pointed out in Dial [2005] 1 WLR 1660 , it is for this court to apply its mind to the effect of the fresh evidence on the safety of the conviction. It is, as Lord Brown of Eaton-under-Heywood said there at paragraph 31, for this court to evaluate the importance of the fresh evidence in the context of the remainder of the evidence: “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.” 41. That approach needs, of course, some slight adaptation when the burden of proof rests on the accused, but the real point is that it is for this court to decide whether, in the light of the fresh evidence, the conviction is unsafe. 42. In the present case we are quite satisfied that the appellant has failed to show, on the balance of probabilities, that the section 2 criteria are satisfied, taking into account both the original evidence at trial and the fresh evidence. No jury might reasonably have found that that burden of proof had been discharged. For those reasons we dismissed this appeal.

```yaml citation: '[2009] EWCA Crim 1326' date: '2009-07-06' judges: - LORD JUSTICE KEENE ```

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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 No. 202300723 A2 CRIMINAL DIVISION [2023] EWCA Crim 719 Royal Courts of Justice Friday, 19 May 2023 Before: LORD JUSTICE WARBY MRS JUSTICE GARNHAM HIS HONOUR JUDGE FLEWITT KC ( Sitting as a Judge of the High Court ) R E X V JOANNE YEATES __________ 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 M SAFFMAN (instructed by Taylor Rose MW) appeared on behalf of the Appellant. THE CROWN did not appear and were not represented. __________ JUDGMENT LORD JUSTICE WARBY: 1 This is an appeal against the imposition of the statutory minimum sentence for a third Class A drug-trafficking conviction. The appellant is Joanne Yeates, aged 49. The facts 2 On the afternoon of 6 January 2022 the appellant was observed by plain-clothes police officers sitting in the driving seat of her Ford car in a car park in an area of Crewe that is notorious for Class A drugs. A woman in a nearby alleyway used her mobile phone and then approached the rear passenger window of the car from which she appeared to the officers to be dealt drugs. The police allowed the appellant to drive the vehicle out of the car park, whereupon they stopped it, detained its occupants, and searched the car and the arrested individuals. 3 The appellant was one of four people in the car. In the front passenger seat was her boyfriend. In the back were two others, Adnan Sattar, who was then aged nearly 19, and Andres Pohlotka, still a few days short of his 17 th birthday. Pohlotka was in possession of a package containing 33 separate deals of crack cocaine, with a street value of up to £480, and 46 deals of heroin, with a value of up to £460. It was the Crown’s case that he was holding these for Sattar, whose DNA was found on some of the wraps. Sattar himself had £195 in cash. A Nokia telephone found on the rear seat was attributed to him. There was another telephone found on the front dashboard which belonged to the appellant. 4 Data downloaded from those telephones found evidence to link those in the car to drugs supply. On Sattar’s phone, there were Flare messages from March and May 2019 advertising drugs for sale. There were also messages passing between that phone and the appellant’s telephone on the day before the arrests, in which the appellant indicated that she would be available to drive Sattar and he provided her with the postcode of an address where he was living in Stoke, from which she was to collect him. 5 In interview, the appellant said that she had agreed to drive Sattar from Stoke to Crewe on 6 January in return for £100, but she denied knowing that he was dealing drugs, saying that she was shocked when she learned of this from the police. But that account was not sustained and, on 7 March 2022, at the adjourned plea and trial preparation hearing, she pleaded guilty to two counts of being concerned in supplying Class A drugs to another, one count relating to the heroin and the other to the cocaine. Her plea was on the basis that she had bought cocaine from one of the co-accused, she could not say which, and was then recruited by text to drive the car for which she would be paid £100 and that was her only role. She had had no prior dealings with the others. The sentencing process 6 The appellant had 15 previous convictions for 32 offences between 6 July 1989 and 17 June 2019. Among them were three convictions for possession of Class A drugs in 1997, 1999 and 2000, two for permitting premises to be used for supplying Class A drugs in 1997 and 1999, one of being concerned in the supply of a Class A drug, that was in 2002, three of attempting to supply Class A drugs in 2006 and one of drug driving in 2019. For the 2002 offending, the appellant had been sentenced to 45 months’ imprisonment. For the further offending of 2006, she received a sentence of 54 months. 7 Those two convictions and the one of 2022 satisfied the criteria in section 313 of the Sentencing Act 2020 . The court was, therefore, obliged to impose an appropriate custodial sentence of seven years, unless the sentencing judge was of the opinion that there were “particular circumstances” which related to the offence or to the offender that would make it unjust to do so in all the circumstances. If the judge was not of that opinion, the maximum reduction for the guilty plea was 20 per cent (see section 73(3) (a) of the 2020 Act ). 8 On 15 February 2023 Mr Saffman, on behalf of the appellant, urged the sentencing judge, HHJ Thompson, to conclude that the circumstances here were such that it would be unjust to impose the minimum sentence provisions. Four points were advanced. One, other than the drug-driving conviction, the appellant has been offence free for 17 years; two, after a decade of abstinence she had relapsed due only to the death of her mother in 2021; three, her ability to turn around her life was evidenced by the fact that she was in full-time employment as a warehouse worker at the date of sentence; and, four, she also cared for her partner, who had a number of mental health difficulties. 9 A pre-sentence report provided some support for some of these points. It did point out that the appellant’s claims of abstinence and an isolated relapse in 2021 were as a result of a specific cause were somewhat undermined by her 2019 conviction for drug driving and it did identify a pattern of offending behaviour. But it endorsed the point that the appellant had no convictions or cautions for some ten years from the date of her release from custody in June 2008 until her appearance in court for the drug-driving incident in June 2019. 10 The Judge concluded, however, that it was not unjust to impose the minimum term. He and imposed on each count concurrent the statutory maximum of seven years, less the maximum permissible reduction for the guilty plea. The resulting sentence was one of 2,045 days, the equivalent to approximately five years and eight months. 11 Explaining his decision, the Judge referred to the appellant’s previous convictions, noting that each of the two previous qualifying offences had attracted a significant sentence. He took into account that the appellant had been offence free for what he called a significant period of time and said that he took account of all the other mitigation relied on. He went on, however, to say that he had to bear in mind that the minimum sentence “should not be watered down by liberal application of unjust circumstances or by reference to totality”. The appellant, he said, had played an important role in the supply of these drugs, knowing what she was doing and knowing the risks that she was taking. She was well aware from her own experience of the misery caused by Class A drugs. Those who involve themselves persistently in dealing Class A drugs must, he said, expect the law to apply. The appeal 12 The grounds of appeal for which the single Judge gave leave are that, in determining whether the minimum sentence was unjust, the Judge erred by failing to attach sufficient weight to the appellant’s personal circumstances, the antiquity of the qualifying offences or the circumstances of this offence. As a result, it is said, the sentence was manifestly excessive. 13 In support of those grounds, Mr Saffman has drawn our attention to four decisions of the court in which the minimum term provisions were considered and the court concluded that their application would be unjust. These are Stonehouse [2002] CrAppR. Turner [2005] EWCA (Crim.) 2363, McDonagh [2005] EWCA (Crim.) 2742 and Timperley [2012] EWCA (Crim.) 1782. Mr Saffman submits that there are some helpful analogies to be drawn between those cases and the present, in particular as to the treatment of qualifying convictions that date back several years and the importance of supporting offenders’ efforts to remain drug free. 14 He also points to the disparity between the sentence imposed here and that which the guidelines would otherwise indicate. The prosecution identified this as a Category 3 lesser-role case with a starting point of three years and a range of up to four and a half years. Discussion 15 It is often rightly said that decisions in this area are highly fact sensitive. Previous decisions on different facts are not treated as if they were authorities and this court will be slow to interfere with a properly reasoned judicial assessment of the particular circumstances of a case and their bearing on the justice or otherwise of applying the minimum term provisions. 16 The authorities do, however, identify a certain number of relevant principles. These were drawn together by this court in the case of Woofe [2019] EWCA (Crim.) 2249, [2020] 2 Cr. App. R. (S,) 6. 17 One of those principles was mentioned by the Judge: sentencing courts should beware of circumventing the intention of Parliament by an unduly liberal approach to the statutory exception. The deterrent intention that underlies the “three-strikes” provision, as it is called, must be borne in mind. But Woofe identifies three other principles of particular relevance to this case. 18 The first is that the correct approach for the sentencing Judge is to begin by applying the relevant sentencing guideline and then to determine whether the sentence thereby arrived at complies with the minimum sentence provisions. Only if it does not would it be necessary to consider those provisions. 19 The second relevant principle is that one way of testing whether or not the application of the minimum sentence provisions would be unjust, in the particular circumstances of a given case, is to ask if that sentence would be markedly more severe than the one that would otherwise have been imposed applying the relevant Sentencing Council guideline. Put another way, the sentence indicated by the guideline is an element of the context in which the justice or otherwise of imposing the higher statutory minimum has to be assessed. 20 The Judge did not apply either of those principles in this case. He made no assessment of the appropriate sentence according to the guidelines. It follows that he made no comparison between that sentence and the statutory minimum. We have, therefore, undertaken that process ourselves. 21 As the prosecution conceded at the sentencing hearing, this appellant played a lesser role in the offending. The facts of this case do not call for any departure from the category starting point of three years, but there were two offences and the appellant’s previous convictions, despite the relative antiquity of some of them, must represent a significantly aggravating factor. Allowing for the available mitigation, we would identify the appropriate sentence after a trial as one of some four years, applying the guideline. That would be reduced by 25 per cent for the guilty plea, resulting in a sentence of some three years. 22 It follows that a substantial period of custody was inevitable. But the disparity between the guideline sentence and the 2,045 days imposed under the minimum terms provisions is a substantial one. In our judgment, the latter is properly described as markedly more severe. 23 That brings us to the third relevant principle, which is the need to consider the length of time since the last qualifying offence. As pointed out in Woofe , the passage of time is not something that can of itself make the application of the minimum term unjust, but it may be a matter to be taken into account, as indeed it was in several of the cases mentioned Mr Saffman, and in Woofe itself. Although the judge was alive to this point, our review of the cases suggests that the offence-free period of over ten years that we see in the present case is at or beyond the top end of the range. The Judge may not have had this firmly in mind. 24 Two other factors strike us as significant. The first is the isolated nature of the offending in this case. It is tolerably clear that this appellant was using Class A drugs. She had on her own account been doing so for a period of many months since the death of her mother, if not before that. But possession and use are one thing, taking part in drugs supply to others is a different matter. There is nothing to contradict the appellant’s account that this was a one-off episode involving people who she had not met before. The second significant factor is the appellant’s personal circumstances, specifically her demonstrated ability to hold down a job. That is testament to an ability to rehabilitate and integrate into society, despite a long-term drug habit. Neither of those matters was specifically mentioned in the Judge’s remarks. 25 For these reasons, we find that the sentencing Judge’s approach was flawed. Undertaking the process for ourselves and bearing in mind all that was said in Woofe, we have formed the opinion that this is one of those relatively rare cases in which the particular circumstances of the offender and the offending are such as to make it unjust to impose the minimum term. 26 We therefore quash the sentence of 2,045 days’ imprisonment on each count and substitute, on each count, a sentence of three years’ imprisonment concurrent. The other orders made below are unaffected. ________ 27

```yaml citation: '[2023] EWCA Crim 719' date: '2023-05-19' judges: - LORD JUSTICE WARBY - MRS JUSTICE GARNHAM - HIS HONOUR JUDGE FLEWITT KC ```

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No: 200605878/C4 Neutral Citation Number: [2007] EWCA Crim 1354 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 1st May 2007 B E F O R E: SIR IGOR JUDGE (PRESIDENT OF THE QUEEN'S BENCH DIVISION) MR JUSTICE GOLDRING MRS JUSTICE SWIFT DBE - - - - - - - - R E G I N A -v- KENNETH DESMOND CHARNLEY - - - - - - - Computer Aided Transcript of the Stenograph Notes of A Merrill Communications Company Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR J BENSON QC appeared on behalf of the APPLICANT MR D OWEN appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. SIR IGOR JUDGE: This is an appeal by Kenneth Charnley, against his conviction on 17th October 2006 in the Crown Court at Liverpool, before His Honour Judge George and a jury, on four counts of indecent assault and one count of indecency with a child. There was a 24 count indictment, and the jury acquitted him of seven counts of rape, one attempt rape, seven indecent assaults and four offences of gross indecency with a child. 2. The appeal is concerned with the circumstances in which the convictions were returned. They are quite exceptional. The foreman of the jury returned the wrong verdicts. 3. The facts of the alleged offences need no recital. Their nature can be gathered from the counts in the indictment. In essence it was alleged that over a number of years the appellant committed sexual offence against with two young girls who were his then partner's children. The appellant adamantly denied the allegations. This was the third trial. The first jury was unable to agree its verdicts. The second jury was discharged following some irregularity. The third trial proceeded in the usual way. The judge summed the evidence up to the jury. The summing-up is beyond criticism and has not been criticised. The judge directed the jury to return unanimous verdicts on each count. 4. After some time considering their verdicts, the judge was sent a note by the jury which indicated the stage their deliberations had then reached. It is unusual for details of such information to be disclosed in the Crown Court and, at the time, Judge George, in accordance with normal practice, simply told counsel that he had received the note and that it indicated that there was unanimous agreement on the majority of the counts. 5. After a discussion with counsel, the judge decided to take the unanimous verdicts and indicated that he would give a majority verdict direction in relation to the remaining counts on the following morning. In the meantime, of course, the jury remained in retirement. 6. We have the note. In the circumstances which now prevail, we must read most of it out. It begins: "Dear, your Honour, will you please accept the following?" and it then sets out each count in the indictment in tabular form. It indicates unanimous "not guilty" verdicts on 19 counts, and in relation to count 1, "8 - 4 guilty", and counts 2, 5, 7 and 16, "9 - 3 guilty". 7. The jury came into court at about 3.40, something like (and this is an estimate) half-an-hour after they had sent their note into the judge. The judge, because of the complications of the case, asked that the note should be given back to the foreman of the jury while the clerk asked the appropriate questions. 8. The clerk to the foreman: "Please answer my first question either yes or no? Has the jury reached verdicts upon which they are all agreed in relation to any of the counts in the indictment?" The foreman replied "Yes". There was something that was inaudible to the person making the record, and the judge obviously had difficulty hearing, because he said so. He went on: "The answer to first question is: are there any counts upon which you are all agreed on your verdict?" The answer to that question was: "Yes, there are such counts". The judge: "Now we're going to take verdicts on each count where they are all agreed. Thank you." He then indicated to the clerk to continue, who went on: "On count 1, have the jury reached a verdict on which they are all agreed?" The foreman said: "Yes". The clerk asked: "Do you find the defendant guilty or not guilty?" The foreman said: "Guilty." There was no further enquiry, the foreman having indicated that the jury were all agreed. Precisely the same process occurred in relation to count 2, and indeed then throughout the remaining 24 counts. 9. There was nothing specific to suggest that there were any problems with these verdicts. Counsel asked for a short time in order to see his client and take instructions from him in the context of the mitigation plea which now lay ahead. The jury returned to their room. 10. While they were in the jury room, one of the jurors, immediately and as far as we can ascertain in the company of at least one other member of the jury, spoke to the jury bailiff and explained that something had gone wrong with the guilty verdicts. The bailiff reported the gist of the conversation to the judge. He asked that a note should be made of her report. The note is a brief one but the gist of what was reported to the judge is plain from it: "Were the verdicts supposed to be unanimous? They weren't unanimous". The bailiff said, "yes, that's what you got asked" [meaning that's what you were asked]. The note concludes "never given majority verdicts." That is factually correct. No majority verdict had indeed ever been given. 11. The only other feature relevant as, at this stage, is that Judge George has indicated in his own note to the Court, that he was keeping a track of the verdicts, a process which as is his apparent from the transcript, on occasions, at any rate, declined into the virtually inaudible. He would not have been aware of any concerns which any juror might have been expressing when the verdicts were being returned. There is further material, from at least one of the jurors, explaining that while the verdicts were being taken, she was trying to attract the attention of the jury bailiff in order to give some indication of her concerns. 12. It is reasonable to infer from the transcript of what went on afterwards that when the report was made to the judge the jury had not dispersed. They were still at court, and in their jury room. The judge told counsel that a report had been made to him by the bailiff of a remark by the jury, and that he took the view that he should not disclose the contents to them. He told counsel that he would send the jury away, and shortly afterwards indeed he directed the bailiff to tell them to go home. That indication was plainly given, but for the time being at least, seven of the jurors wanted to stay behind to witness or observe the sentencing process. In the end, as we understand it, because of a further delay, none of them did. 13. The judge heard mitigation. He then passed sentence on the appellant on the counts of which he had been convicted. 14. Shortly afterwards a letter was received from a juror. It is written in sensible, balanced terms. Again, because of the particular circumstances, we think that we should read most of it out as part of the judgment: "I would formally like to draw to your attention a possible miscarriage of justice that occurred on the above trial of which I served as a jury member. I believe the incident occurred when the elected jury foreman delivered his verdict to the court clerk and actions that were taken following that. The judge, His Honour Judge George, had requested a unanimous verdict from the jury and he went away to deliberate. We had 24 counts to consider and managed to reach a unanimous verdict of not guilty for 19 of the counts. However, the remaining five counts were split. One count 8 for majority of guilty and four counts 9 - 3 majority of guilty. A member of the jury informed the court usher we had come to a decision, who requested that we send a note to the judge for his consideration, which we did in a sealed envelope. The jury's verdicts did not change from what was put in the original note to the judge. A little later that afternoon we were summoned to the courtroom to deliver our verdicts. However, when the jury foreman delivered the verdicts to the court clerk, in respect of those that the jury were in split decision of, he answer 'yes' to the question 'have the jury reached a decision in which they are all in agreement' and continued to the verdict of guilty. As a jury entering the court to deliver the verdict we were a little unsure of what was happening as we had given the note informing of the split verdicts for the attention of the judge and had no formal response to this. The foreman, and I think rest of us jury members, were a little unsure of the process and assumed may be these majority decisions were being accepted as per the note. During the reading of the count verdicts, I tried to catch the attention of the court usher but without success. I was also unsure if I had misinterpreted what was happening as it was the first time I have sat as jury member. Immediately upon returning to the court juror's room, myself and another jury member identified this to the court usher, explaining the guilty verdicts were not unanimous. We were asked to remain in the court jurors room, while the usher went to see the judge. The usher returned to a room a little later advising us we could go home. She was very vague in what information she gave us and proceeded to take us down to the main jury room to be discharged from service. Unaware of what was happening I asked the usher clarification and she responded only with the judge had accepted our verdict. I was still unsure of what this meant. Several jury members enquired if they were allowed up to the jury public gallery for the delivering of the sentence as the jury were previously invited by the judge after the verdicts had been delivered. With reluctance the usher informed she would enquire with the judge. Totally disillusioned by what had happened I returned home and did not wait for the usher to return with answer. The following day there was an article in the local press informing the defendant had been sentenced to 3 years' imprisonment. Since this has occurred I have been questioning the authenticity of the defendant's sentence as I am led to believe a minimum accepted majority sentencing is 10-2. This has caused me great concern." 15. It is fair to say that such facts as have been ascertained entirely coincide with the assertions in that letter, and we have no reason to doubt the accuracy of its contents. We therefore admit it in the usual way under section 23 of the Criminal Appeal Act 1968 . 16. The letter having been sent to the Crown Court, together with the note of the report by the bailiff, the judge arranged for copies of the letter and the note, and his own statement of events to be sent to those with a proper interest. He arranged for the solicitor for the appellant to consider the material and, as we understand it, the route then was from the solicitor to this Court. Counsel then drafted grounds of appeal. 17. The case was listed before the full Court. The Criminal Cases Review Commission was invited to make limited enquiries of the jury. The problem which had arisen was, of course, deeply sensitive. Jury deliberations are private and must remain so. Contravention of the privacy principle of the jury discussions may well be a criminal offence. In any event, jurors are likely to be very alarmed at any enquiries of any kind, by anyone, into their verdicts. It is therefore not a step to be taken unless there are compelling reasons to justify it. 18. We are grateful to the Commission for the evident sensitivity with which they investigated the issues on behalf of the Court. The questions which they were requested to ask of each juror were as follows: "(A) After their note was sent to the judge, was there any further discussion among the jury about the verdicts on counts 1, 2, 5, 7 and 16. If an individual juror answers 'no', to that question, the questioning of that juror must cease. If the juror answers 'yes', a second question (b) is to be asked. (B) Was there a change to the voting figures on the note before you return to court and the verdicts were delivered by the foreman? If the juror answers 'no' to that question, the questioning of that juror must cease. If the juror answers 'yes' a third question (c) to be asked. (C) Had the jury reached unanimous verdicts, that is verdicts on which they were all agreed on counts 1, 2, 5, 7 and 16, the verdicts on which Mr Charnley was found guilty." 19. The Commission was able to interview 11 of the 12 jurors separately. The twelfth juror was abroad. The result is clear. In summary, although not in absolutely identical terms, the evidence shows that the foreman returned unanimous verdicts of guilty on five counts when the jury was not so agreed, and when indeed there had been nothing which could be regarded as further deliberations after the note recording the voting figures, in relation to counts on which the guilty verdicts were returned, was sent to the judge. 20. Those, in essence, are the facts. The prohibitions in section 8(1) of the Contempt of Court Act 1981 do not extend to investigations by or on behalf of the Court into possible jury irregularities ( R v Mirza [2005] 1 AC 1118 ). The same principle applies to a juror who, for unimpeachable reasons, discloses his or her concerns about the course of jury deliberations ( Attorney-General v Scotcher [2005] 2 Cr App R 573 ). This recent authority represents a substantial change in principle, which was formerly encapsulated in R v Young [1995] QB, which suggested that the ambit of the 1981 Act operated very widely indeed and extended to any such enquiries or expressions of concern. Nevertheless, the question which remains is whether the Court is entitled to look behind apparently clear verdicts, properly returned in open court by the foreman of the jury, in the presence of and hearing of his colleagues, by admitting evidence which suggests that the verdicts, or some of them, did not truly reflect the actual decisions of the jury. 21. The essential principle is clear enough: normally this is forbidden. It is also clear that, in extreme circumstances, exceptions are permitted. One such example is R v Andrews (1985) 82 Cr App R 148. This case involved two defendants and injuries to one child. The jury convicted the woman, the female defendant, of positive acts of cruelty against the child and returned a verdict of not guilty of those acts in respect of the male defendant. After the police had given evidence of the antecedent history of the woman, some 10 minutes later, a note was handed to the judge. This read: "We thought we found the appellant guilty of wilful neglect. What happens now?" After discussion between judge and counsel an amended verdict was taken. The appellant was found guilty, not of assault or ill-treatment of the child but of wilful neglect. 22. The appeal was advanced on the basis that the trial judge was wrong to exercise his discretion to allow the jury to return the amended verdict. There was a further ground which needs no attention in this judgment. Giving the judgment of the Court, presided over by Lord Lane CJ, Simon Brown J analysed some of the old authorities. Perhaps we should just draw attention to the case of R v Vodden , referred to Simon Brown J at page 154 of the judgment, where one of the jurors delivered a verdict of not guilty. The clerk heard, so did the chairman, who heard the same words. The prisoner was discharged from the dock. Others of the jury interfered. They said the verdict was guilty. The prisoner was brought back to the dock. The chairman asked the jury what the verdict was. All the 12 jurors answered that it was guilty. They had been unanimous. The chairman asked Owen Hughes why he had said "not guilty", to which he replied that he had said "guilty". A verdict of guilty was recorded. That was obviously an extreme case, but, Pollock CB is recorded as having said this in the short judgment of the court: "We do not think the Court is called upon to say at what interval of time a correction should be made. All we do is to say that in the present case the interval was not too long. Nothing has been done but what daily takes place in the ordinary transactions in life; namely, a mistake is corrected within a reasonable time, and on the very spot on which it was made." 23. Drawing on the authorities Simon Brown J encapsulated the relevant principle in these words: "It seems to this Court, both on those two authorities and as a matter of general principle, that the position in law is as follows: where the jury seeks to alter a verdict which has been pronounced by the foreman, the judge has a discretion whether to allow the alteration to be made. In exercising that discretion he will, it goes without saying, take into account all the circumstances of the case; in particular the important considerations will be the length of time which has elapsed between the original verdict and the moment when the jury express their wish to alter it, the probable reason for the initial mistake, the necessity to ensure that justice is done not only to the defendant but also to the prosecution. The fact that the defendant has been discharged from custody is one of the factors but is not necessarily fatal to the judge's discretion to alter the verdict to one of guilty. If the jury had been discharged and a fortiori if they had dispersed, it might well be impossible for the judge to allow the verdict to be changed. That however it is unnecessary to decide upon the instant appeal. Clearly if there were any question of the jury's verdict being altered as a result of anything they heard after a returning their initial verdict, then there could be no question of allowing a fresh verdict to be returned. But there is here no possibility of that having occurred." The upshot of the appeal in Andrews was that notwithstanding that the verdict of not guilty had originally been entered the conviction was upheld. 24. Much the same process can be seen in the case of R v Maloney [1996] 2 Cr App R 303, where a slightly different factual issue arose. The context was section 17(3)of the Juries Act 1974 which provides that a verdict of guilty shall not been accepted unless the foreman has stated in open court the number of jurors who agreed with it and number who dissented from the verdict. The charge was indecent assault. A majority direction was given to the jury. The jury returned a verdict of guilty. The clerk omitted to ask how many agreed and how many dissented. Later that day, the judge and counsel discussed the error. It was agreed that the jury should be reconvened after the weekend to rectify it. When the court was reconvened on Monday, defence counsel queried whether the error could be corrected on the basis that the jury had left the court building. The judge took the view that it could. The clerk of the court then proceeded to take the verdict from the jury in compliance with section 17(3) of the 1974 Act . The appellant appealed against his conviction on the basis that the court could not take the verdict on the Monday morning. The jury had become functus officio . 25. It will be appreciated that Maloney was a different case from Andrews , where the verdict itself was changed, as a result of the judge exercising his discretion, from one of not guilty to guilty. Nevertheless, searching for principle, after an analysis of the authorities, including the decision in Andrews , the Court presided over by Roch LJ, in a judgment given by Alliot J, reached this conclusion: "We have no doubt at all that had it been possible to reconvene the court with the jury the moment the omission to obtain the numbers agreeing and dissenting was appreciated, which we understand from the Bar was about 5 minutes, then it would have been permissible to carry out the rectifying procedure." 26. Finally in this context, we highlight the decision in R v Millward [1999] 1 Cr App R 61, where the Court was presided over by Lord Bingham CJ. The issue again arose in the context of section 17(3) of the 1974 Act . The precise circumstances do not matter. Lord Bingham reflected on the decision in Maloney . He said that from Maloney : "...it would appear,... that if a problem had arisen at the time of the jury's verdict or very shortly thereafter, the jury could have been reconvened and the correct questions put with an opportunity for the foreman to give appropriate answers as to whether the verdict was by a majority or unanimous, and if by a majority how the jurors were divided." Millward was at least in part based on the now overruled decision in Young , but with the other cases it demonstrates that exceptional circumstances may arise in which the fundamental principle may not be applied with its full rigour. And we have no doubt that a mistaken verdict may constitute an irregularity which, following Mirza , may now properly investigated by this Court. 27. We return to this case. Assuming that absolutely nothing happened when the verdicts were being recorded and that the juror was not seeking to draw attention of the bailiff to a problem with them, the reality is that doubts were expressed by at least the one juror, immediately after the verdicts were returned and the jury had left the actual court in which the verdicts were returned, and he or she was either on her way to or was in the jury room. The concerns were made directly to the bailiff. The jury had not dispersed. In our judgment, it was open to the trial judge to have investigated immediately with the jury whether there was anything in the concerns expressed by the juror to the bailiff. Such investigations, conducted in whatever manner the judge saw fit, would have revealed what we now know. 28. There is no question here of the jury dispersing, with one member or another subsequently writing to express hesitation about the process. Nor is there any question of jurors, at that stage, having been exposed to any outside influences. Even though we are assuming that doubts were not expressed in court by any juror when the verdicts were actually being returned, we are satisfied that the doubts were expressed at a sufficiently proximate time and place to the events in court that they fall within the permissible exceptions to the normal rule. 29. The next question is whether the fact that the problem was not investigated there and then should create some insurmountable hurdle for the appellant. We have every sympathy with the judge. The situation which faced him was highly unusual and, for the reasons already given, extremely delicate. With hindsight, it is possible to see that the better course would have been for him to reconvene the jury in order to investigate whether the foreman's response to questions accurately reflected the true position. In any event he had jurisdiction to do so. If that jurisdiction was available to him, then it is available to us. It must, of course, be exercised with great circumspection, but it is a jurisdiction which can now be exercised in the confident expectation that the necessary investigations will be conducted, as these were, with absolutely scrupulous care by the Commission. 30. We are left with this situation. Whatever the answers given by the foreman, in reality the verdicts on the five counts with which we are concerned were not the unanimous verdicts of the jury. The judge had never given a majority direction at all and, in any event, the requisite minimum of 10 jurors did not agree to the guilty verdicts. In reality, they were non-verdicts, returned in error by the foreman. The Crown accept that the purported convictions are unsafe. We agree. We have now taken the step which the judge could have taken at the time. In our view, these convictions must be set aside. They will therefore be quashed. 31. No application is made for a new trial in the circumstances already outlined. This was the third such trial. Beyond quashing the conviction, no further order arises. 32. MR BENSON: May I mention one thing? It is during the course of my submissions, I did refer to the juror by her full name, through oversight. Of course, I know that the Court will be keen to ensure that there is no reporting of that fact. 33. SIR IGOR JUDGE: I would be very grateful, if anybody who was present in Court and wants to put in a report, does not actually name the juror who put in the letter; it could be a source of great embarrassment. Thank you very much.

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Neutral Citation Number: [2009] EWCA Crim 2552 Case No: 2008/06483/B5 and 06482 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) On a Reference by the Criminal Cases Review Commission Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/12/2009 Before: LORD JUSTICE HOOPER MR JUSTICE COOKE and MRS JUSTICE SWIFT DBE - - - - - - - - - - - - - - - - - - - - - Between: PAUL MAXWELL AND DANIEL MANSELL Appellants - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Patrick O'Connor QC and Mr M Sherratt for Paul Maxwell Henry Blaxland QC and Nigel Leskin for Daniel Mansell Ben Nolan QC and Patrick Palmer for the Crown Hearing date: 14 October 2009 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER: Introduction 1. This appeal raises the following issue: May the Court of Appeal order a retrial having quashed a conviction on the grounds of serious executive or prosecutorial misconduct, and, if so, in what circumstances? 2. A similar issue could arise in other circumstances, for example, if a court has entered a stay on the grounds of serious executive or prosecutorial misconduct and an application is made to lift the stay and order a trial. 3. On 27 February 1998 the two appellants were convicted of two offences of robbery and one offence of murder at the Crown Court sitting at Leeds. The robberies were committed on 20 June 1996 and October 13 1996 at the home of two brothers Bert and Joe Smales. Joe Smales died in hospital from his injuries on 7 November 1996. 4. The prosecution’s case depended upon the evidence of Karl Chapman (“Chapman”), a prolific informer. 5. For the robberies Paul Maxwell (“Maxwell”) was sentenced to 12 years’ imprisonment concurrent and for the murder to life imprisonment. His tariff has been set at 18 years. His brother Daniel Mansell (“Mansell”) was sentenced to 10 years’ imprisonment concurrent for the robberies and for the murder to life imprisonment. His tariff has been set at 15 years. Both have been in custody since April 1997. 6. The renewed applications for leave to appeal conviction were rejected by the Court of Appeal Criminal Division (“CACD”) on 5 November 1999, which heard evidence from two West Yorkshire police officers. 7. Subsequently, there was a very substantial investigation by the Criminal Cases Review Commission (“CCRC”) which obtained a detailed report from the North Yorkshire Police. The investigation was conducted by Detective Chief Inspector Gray who took over from Detective Chief Superintendents Lynch and McKay, on their retirement. The CCRC referred the convictions to this Court in November 2008. The case was initially listed before another Division of this Court in June 2009 (Hooper LJ, Swift J DBE and Hamblen J), which dealt with matters of disclosure and redaction of the parts of the CCRC’s Report. Following that hearing the respondent accepted that there had been serious prosecutorial misbehaviour and that the convictions were unsafe. 8. The respondent further accepts that if the CACD in November 1999 had been told, as it ought to have been, that which is now known, the convictions would have been quashed on the grounds that they were unsafe. The convictions would have been unsafe because if the jury had known about the benefits which were given or promised to Chapman by police officers involved with the investigation of the offences, the verdicts of the jury might well have been different. The Court, it is accepted, would have concluded that the deliberate concealment of the evidence of these benefits amounted to serious prosecutorial misbehaviour. Indeed the way that Chapman was treated may well itself have constituted serious prosecutorial misbehaviour. 9. The respondent accepts that the CACD would not have ordered a retrial. In the absence of any other sufficient evidence, the CACD could not have granted a retrial, even if it were minded to do so. It follows that if the CACD had known the truth about the treatment of Chapman, then the convictions would have been quashed, no retrials would have been ordered and the appellants would have been released from prison by no later than the end of 1999. 10. If during the trial it had become clear that the trial court had been deliberately deceived, the trial judge might well have stayed the prosecution on the grounds that it would have been an affront to the public conscience to allow the prosecution to proceed (see Latif [1996] 1 WLR 104 , at 113 per Lord Steyn, to which we return below). The judge might also have excluded the evidence of Chapman altogether applying section 78 of the Police and Criminal Evidence Act 1968 (“PACE”) or Galbraith [1981] 73 Cr. App. R. 124, in which case the appellants would have been acquitted. The appellants would then have been released in 1997 or at the beginning of 1998. 11. The truth has only come into the open following the CCRC’s investigation. The CCRC and the North Yorkshire police are to be congratulated on the work that they have done to uncover serious misconduct on the part of police officers. We should add that no officers have been disciplined or prosecuted for what they did. All parties have relied heavily on the CCRC report, the findings of which are unchallenged. Almost all the redactions in the original CCRC report have now been removed. All that remains redacted are some personal details of no relevance to this appeal. 12. The only issue before us was whether a retrial should be ordered. If there were a retrial the prosecution would not call Chapman. The prosecution seek a retrial because of admissions allegedly made by Maxwell. But for those alleged admissions the prosecution would not be seeking a retrial. 13. There is no challenge in this Court to the fact that the admissions were made by Maxwell, as well as statements purporting to recant the admissions. It is submitted in behalf of Maxwell, unsupported by any evidence from him in these proceedings, that the alleged admissions are not reliable. Mr O’Connor QC told us that he had not thought that it would be helpful if Maxwell made an exculpatory statement recanting and explaining the admissions. Whilst we accept this, it follows that this Court has not heard from Maxwell as to whether he adheres or not to the admissions. 14. Some of the alleged admissions were made before the hearing of the appeal in November 1999, namely by Maxwell to a solicitor then instructed by him, in a letter to Mansell and to a prison officer involved with the Lifer Unit. None of these alleged admissions were known to the prosecution at the time of the appeal in November 1999. 15. The other alleged admissions were made within the prison in the context of future parole applications, to an officer carrying out in early 2000 an enquiry into particular kinds of burglary and to officers of the North Yorkshire Police carrying out the investigation at the request of the CCRC. In a lengthy statement made to the North Yorkshire Police in 2004, Maxwell said amongst other things: “I would like a retrial and I would plead guilty to robbery and manslaughter”. Mr Nolan QC, for the respondent, told us that a plea only to manslaughter would not be acceptable. 16. It is also submitted that there should be a retrial for Mansell. It is said that if Maxwell was convicted then a jury would be entitled to find Mansell guilty also. We examine the reasons behind that submission below. The Report of the CCRC 17. We take only a few passages from the CCRC Report, being passages in which some of its unchallenged findings and those of the North Yorkshire Police are to be found. 142. In summary, North Yorkshire Police found fresh evidence that Mr Chapman and members of his family received a variety of improper benefits in the course of his assistance to the police as a prosecution witness, which were not revealed to the CPS or to prosecution or defence counsel. These benefits contravened the controls designed to preserve the integrity of his evidence and/or were inherently improper. In the Commission’s view those benefits may have acted as an inducement and their non-disclosure denied the defence the opportunity to explore their possible impact on the credibility of Mr Chapman and also on the fairness of the trial. ... Expenditure on Mr Chapman 245. The Investigating Officer found that from November 1994 onwards: • Expenditure by officers looking after Mr Chapman far exceeded his entitlements as a production prisoner and contravened the guidance on the treatment of resident informants. • The expenditure was financed by claims on a variety of police funds, including ‘incidental expense’ claims on the Fin20 and CID4 informant payment systems and cash advances drawn from divisional imprest accounts. • There was no common supervision of these funds or control on the level of spending on Mr Chapman. • The majority of the claims were made without receipts. The circumstances of the expenditure have not been accounted for and the possibility that Mr Chapman received the benefit of some of these claims in cash cannot be ruled out. • The Fin20 and CID4 Informant payment systems were weak and open to abuse. • Duplicate and multiple similar claims on one informant payment system, each for small amounts of money, effectively circumvented stricter regulations which would have applied to larger single payments. • Cash advances from divisional imprest accounts were reconciled without receipts in contravention of the account operating procedures. • Luxury items were purchased by the police for Mr Chapman during productions to police custody. • By conclusion of the trial of Mr Maxwell and Mr Mansell in February 1998 a minimum of £5836 had been claimed in expenditure on Mr Chapman. By the time Mr Chapman was released from custody in August 1999, minimum expenditure had risen to £6040. No record of expenditure on Mr Chapman was maintained and these benefits were not revealed at trial or appeal. 18. Both the North Yorkshire Police and the CCRC looked closely at the evidence given to the CACD in November 1999 the effect of which was that Chapman had not been promised before the trial the £10,000 which he was paid after the trial. The evidence from senior police officers was to the effect that Chapman had co-operated in the investigation and given evidence not expecting a financial reward and not having been told anything which would have led him to believe that a reward was likely. Chapman, it was said, had not been consulted about it. The CCRC wrote: Mr Chapman’s expectation of reward 425. Mr Chapman’s evidence at trial was that, having already received credit in his reduced sentence, he had nothing further to gain from giving evidence against Mr Maxwell and Mr Mansell. The Court of Appeal was aware that a reward for his assistance in this case and others had subsequently been agreed by West Yorkshire Police, but was satisfied on the basis of evidence it heard that this had been decided without consultation with Mr Chapman long after the murder trial had finished. 426. The Investigating Officer found evidence suggesting that Mr Chapman expected a substantial unquantified payment for his co-operation in the Yew II investigation [the name given to the operation which investigated Chapman’s allegations against a man called Ford, the two appellants and others] once he had been released from prison. The Investigating Officer concluded that: ‘There is an irresistible inference from the evidence that the West Yorkshire Police intended to reward Chapman for his evidence against Ford and others subject of the ‘Yew II’ operation and that intention had been communicated to him prior to him giving evidence at all the trials.’ 162 427. This expectation subsisted through Mr Chapman’s co-operation with the murder inquiry and his evidence at the trial of Mr Maxwell and Mr Mansell. The Commission considers that although it originated in relation to an earlier case, an as yet unfulfilled expectation of reward may have been a factor affecting Mr Chapman’s co-operation and evidence in the intervening trial of Mr Maxwell and Mr Mansell. As such, it should have been revealed to the CPS and disclosed to those representing Mr Maxwell and Mr Mansell. Ultimately, the failure to reveal Mr Chapman’s expectation meant that both the trial and appeal courts were misled. … 429. On 1 November 1994, Mr Chapman met Detective Chief Superintendent Taylor and agreed to provide evidence about his accomplices. In a letter to prosecution counsel dated 16 October 1996, Mr Taylor stated that in return for this assistance, he had promised Mr Chapman a new identity and address for his protection, together with a text. 430. A letter from Mrs Chapman to her son written the following day suggests that financial expectations may also have played a part in this decision. Referring to her plans for relocation, Mrs Chapman commented ‘I’ll get what I can out of them (Leach, Daniels) and I’ll make sure I get a ‘phone then you’ll be able to ring me’. At the end of the letter, Mrs Chapman added, ‘When I see [DC] Daniels I will ask him about the money’. Although cryptic, this comment suggests that Mr Chapman may have anticipated some financial benefit flowing from his relationship with the police. Throughout his cooperation with the police, the majority of financial benefits for Mr Chapman were obtained by DC Daniels. 19. The CCRC also concluded that the evidence now available suggests that Chapman’s handlers intended to pay him a substantial reward on his release and that one of the officers giving that evidence, Detective Superintendent Holt, knew that Chapman had, from the outset of the murder investigation, an expectation of a substantial reward (see paras. 490 and 494). The CCRC wrote: 500. The Commission considers that the Court of Appeal was not provided with all the information relevant to its consideration of Mr Chapman’s expectations at the time of Mr Maxwell and Mr Mansell’s trial. The Court was led to the erroneous conclusion that Mr Chapman had no expectation of reward and that his evidence at the trial had not been ‘….tainted in that regard’. 20. In its general conclusions the CCRC wrote: 818. The fresh evidence shows that Mr Chapman received a variety of benefits in the course of his assistance to the police as a prosecution witness, which were not revealed to the CPS or prosecution counsel. These benefits contravened the controls designed to preserve the integrity of his evidence and, in the Commission’s view, may have acted as an inducement to Mr Chapman to give evidence. 819. The Commission notes that some of the benefits conferred on Mr Chapman were not only inappropriate given his role as a prosecution witness, but inherently improper. These included the range of improper privileges afforded to Mr Chapman whilst in police custody. Mr Chapman was: • allowed to smoke cannabis; • supplied with alcohol; • allowed unsupervised home visits and periods of freedom; and • taken on social outings to public houses, police officer’s homes and a brothel. 21. The Report looks in detail at the circumstances of the visit to the brothel. On 12 December 1996 Chapman, then a serving prisoner, made his first statement to the police about Mansell and Maxwell at a police station. It was decided that Chapman needed “TLC” (to use the words of one officer) after making such an “historic statement”. The custody record showed that he was taken out to “assist in the locations of crime.” In fact he was taken to various places to entertain him and he was given £475.00 almost all of which he had spent before returning to the police station at 1.00 am. During that time he was taken by police officers to a brothel. One of the officers, DC Dunham, wrote this to Chapman in a letter about the night (DC Dunham wrote a number of inappropriate and revealing letters to Chapman): ... really glad you enjoyed ‘the night’. Truth to tell I quite enjoyed it myself. Little bit of this, little bit of that. Variety, they say, is the spice of life. What a spicey night! Let’s hope there is a second leg in March. I’m demob happy now and disinclined to dip out on any good times that may be up for grabs. 22. At the time Chapman was enjoying an intimate relationship with a female police officer to whom he wrote about that night. He apologised for visiting a “knocking shop”, saying that the visit was Dunham’s idea. He was furious that Dunham had told her what had happened. He continued: I was drunk and stoned on weed, they paraded a dozen beautiful women in front of me and said take your pick. 23. The CCRC concluded: 820. The omission of these matters [set out in para. 21 above] from Mr Chapman’s custody records ensured that those records offered no hint of the reality of his treatment whilst in police custody. The circumstances in which Mr Chapman provided information to the police in the murder investigation were therefore obscured. 821. The disposal of, and the actions of West Yorkshire Police as regards other offences actually or allegedly committed by Mr Chapman and his mother during the period of his assistance to the police had the effect of benefiting them. The fresh evidence suggests that these disposals, along with the failure to investigate other offences which may have been committed by Mr Chapman’s relatives, were perceived by those affected as favours to ensure Mr Chapman’s continued co-operation with the police. 822. The non-disclosure of these matters denied the defence the opportunity to explore their possible impact on the credibility of Mr Chapman and also on the fairness of the trial. ... 828. The Commission notes that from the outset of his co-operation with the police in the Ford case, Mr Chapman’s relationship with the police was presented as untainted by inducement. This impression was furthered by police responses to defence requests for information in that case and confirmed by the evidence subsequently given at Mr Ford’s trial. The official records of Mr Chapman’s treatment, upon which both prosecution and defence counsel would expect to be able to rely, were silent of the reality of his treatment in custody. 829. The failure to reveal what could reasonably have been considered inducements surrounding Mr Chapman’s evidence left the prosecution unable to assess his reliability as a witness and precluded appropriate disclosure to the court and the defence. It also caused the trials involving Mr Chapman as a prosecution witness to proceed on the incorrect basis that he had not been the recipient of favours or privileges. The Commission notes the principle, articulated in R v Brown [1995] 1 Cr. App. R. 191, that ‘… in our adversarial system, in which the police and prosecution control the investigatory process, an accused’s right to fair disclosure is an inseparable part of his right to a fair trial.’ 830. The failure to reveal relevant matters to those prosecuting the case of Messrs Maxwell and Mansell caused counsel and the court to be misled and precluded appropriate disclosure to the defence. As a result, the defence for Mr Maxwell and Mr Mansell were deprived of significant information which would have assisted them in testing the credibility of Mr Chapman and other prosecution witnesses. They were also hindered in their interpretation of other material which had been disclosed. 831. In the Commission’s view, Mr Chapman’s treatment as a prosecution witness was incompatible with maintaining the integrity of the prosecution process. In contrast to the appearance of legitimacy in his treatment, the undisclosed information would have supported an argument that Mr Chapman’s evidence against Mr Maxwell and Mr Mansell was tainted by a sustained catalogue of improper inducements and an ongoing expectation that he would be favourably treated in every aspect of his relationship with the police. Those representing Mr Maxwell and Mr Mansell were denied the opportunity to deploy this material in support of a tenable argument that the proceedings against them were an abuse of process and to have this issue determined by the court. 24. The respondent does not dissent from the proposition that the findings of the North Yorkshire Police and of the CCRC show that officers engaged in the investigation of the murder conspired to pervert the course of justice. Should there be a retrial? 25. It is the appellants’ case on this appeal that this court should not order a retrial given the serious misconduct on the part of police officers in the way in which they treated Chapman and, more importantly, in the light of the deliberate concealment from the courts of that treatment. So grave, it is submitted, is this misconduct that it would be an affront to the public conscience for the retrial to take place. If the CACD had known what we know today thanks to the labours of the CCRC, the two appellants would have been free years ago and would have remained free. To permit a retrial now would be to reward those responsible for serious misconduct. To permit a retrial now would be to encourage wrongdoers to conceal their wrongdoing and reward them for doing so. 26. The respondent does not minimise the extent of the misconduct. The respondent accepts that this court could properly take the view that the serious misconduct is such that no retrial should be ordered. Nevertheless the respondent submits that it is in the public interest for there to be a retrial. Maxwell has confessed. The evidence now against him is not dependent upon Chapman and the serious misconduct, except to the extent that the admissions made before the hearing of the appeal would not have been made if the judge had stayed the proceedings and those made after the appeal hearing would not have been made if the CACD had been told the truth with the consequence that the convictions would have been quashed. Such is the strength of the admissions that Mr Nolan likens them to the finding of DNA . 27. Section 7(1) of the Criminal Appeal Act 1968 , as amended, provides: Where the Court of Appeal allow an appeal against conviction . . . and it appears to the Court that the interests of justice so require, they may order the appellant to be retried. 28. During the course of argument we raised with counsel section 78 of the Criminal Justice Act 2003 . Section 75 of that Act and the following sections give the power to the Court of Appeal to order a retrial following an acquittal or the quashing of a conviction by the Court of Appeal. Such an order cannot be made in the absence of new and compelling evidence, defined in section 78 in the following terms: (2) Evidence is new if it was not adduced in the proceedings in which the person was acquitted ... . (3) Evidence is compelling if-- (a) it is reliable, (b) it is substantial, and (c) in the context of the outstanding issues, it appears highly probative of the case against the acquitted person. 29. We suggested to Mr Nolan that the new and compelling evidence test could be an appropriate test for us to apply on the facts of this case when deciding whether it is in the interests of justice to order a retrial. Mr Nolan invited us to apply this test. If we have the power to order a retrial and decide that it would in principle be appropriate to do, we shall apply this test. 30. Do we have that power in the circumstances of this case? Mr O’Connor and Mr Blaxland QC submit that we do not. Mr Nolan submits that we do. 31. There is no doubt about the power to stay a case or, on appeal, to quash a conviction on the grounds of serious executive or prosecutorial misconduct. 32. That power has been used to prevent a trial or quash a conviction when the defendant has been brought into this country in circumstances where there has been a serious breach of basic human rights or the rule of law. In R v Horseferry Road Magistrates Ex p Bennett [1994] 1AC 42 the appellant was unlawfully brought to this country as a result of manifestly unlawful collusion between the South African and British police and on arrival here was arrested and brought before magistrates to be committed for trial. The House held, on an appeal from the Divisional court, that in those circumstances a court should refuse to try the defendant. Lord Griffiths said (at pages 61-62): In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. 33. Lord Bridge said (at page 67G): When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance ... Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted. 34. Lord Lowry said (at page 76C): ...the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused. 35. Lord Lowry further said (at page 76G): It may be said that a guilty accused finding himself in the circumstances predicated is not deserving of much sympathy, but the principle involved goes beyond the scope of such a pragmatic observation and even beyond the rights of those victims who are or may be innocent. It affects the proper administration of justice according to the rule of law and with respect to international law. 36. Bennett was applied by the CACD in Mullen [1999] EWCA Crim 278; [1999] 2 Cr App R 143. On 8th June 1990, at the Central Criminal Court, Mullen was convicted following a trial of conspiracy to cause explosions, likely to endanger life or cause serious injury to property. He was sentenced to 30 years' imprisonment. Seven years after the trial, he was granted an extension of time and leave to appeal against conviction. The grounds related solely to the circumstances of his deportation from Zimbabwe to England prior to his trial. No challenge was made as to the conduct of the trial itself and the appeal proceeded on the basis that, if it was fair to try him, the appellant was properly convicted. It was held, quashing the conviction, that the British authorities, in securing Mullen’s deportation from Zimbabwe, had been guilty of “a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts”. 37. In neither of these cases could a stay be lifted or a retrial be ordered at least unless the defendant later returned to this country voluntarily. So these cases do not provide much help in resolving the issue which we have to decide. 38. Serious prosecutorial misconduct has led in the past to the staying of cases or the quashing of convictions in a series of cases involving HM Customs and Excise (“C and E”) and London City Bond (“LCB”) and involving C and E and controlled deliveries of heroin from Pakistan using participating informants. As to the former see e.g. Early and others [2002] EWCA 1904; [2003] 1 Cr App R 19 and as to the latter see e.g. Choudhrey and Others [2005] EWCA Crim 1988 . 39. Latif and Shahzad [1996] UKHL 16 ; [1996] 1 WLR 104 also involved a participating informant and a controlled delivery of heroin from Pakistan. Shahzad whilst in Pakistan conspired with Honi that Honi would arrange for an airline pilot to carry 20 kilos of heroin into the United Kingdom. It was agreed that Honi would take delivery of the heroin in London and that Shahzad or somebody on his behalf would collect the heroin in London and arrange for its distribution in the United Kingdom. Shahzad delivered 20 kilograms of heroin to Honi. Honi delivered the drugs to a Drugs Enforcement Agency officer. On 10 April 1990 Mr. Bolton. a C and E officer travelled from England to Pakistan and collected the packages of heroin and on 13 April 1990 he brought them to England. The officer did so on the instructions of his superiors. But he had no licence to do so and it was assumed that in so doing he had committed an offence against section 170(2) of the Customs and Excise Management Act 1979 . Eventually the appellants took possession of the drugs in England. It was submitted to the House of Lords that the trial judge should have stayed the proceedings because the customs officer had committed an offence in bringing the heroin into this country. The House of Lords rejected that submission. 40. Lord Steyn said (at page 112H): The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Ex p Bennett . Ex p Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Ex p Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means. 41. Lord Steyn went on to say that, although the trial judge did not deal with arguments about the criminal behaviour of the customs officer: That was understandable since that was not argued before him. If such arguments had been put before him, I am satisfied that he would still have come to the same conclusion. And I think he would have been right. The conduct of the customs officer was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed. Realistically, any criminal behaviour of the customs officer was venial compared to that of Shahzad. 42. Subsequently the convictions of Shahzad and Latif were quashed by the CACD on the grounds of material non-disclosure. The court did not have to rule on another ground of appeal, namely that there had been gross prosecutorial misbehaviour; see [2007] EWCA Crim 307 . The Revenue and Customs Prosecutions Office did not resist the appeals. 43. Latif whilst of importance when a decision has to be made about the level of, and effect of, executive or prosecutorial misbehaviour, is of limited help to us when deciding whether a retrial should be ordered. 44. The respondent relies on Early . Eight appellants successfully appealed against their convictions. They appeared, at different times, at three different Crown Courts, before three different Crown Court Judges. They all pleaded guilty to an offence or offences involving fraud on the revenue by virtue of the improper diversion to the UK market, from a bonded warehouse, LCB, of large quantities of duty suspended alcohol, ostensibly intended for other countries in the European Community. For over two years, before C and E put an end to matters in April 1998, some 30 or 40 separate scams were being conducted through LCB. These resulted in a loss to the revenue of £300 million. 45. The appeals were heard together because it was being submitted that the appellants had pleaded guilty on the assumption that full and proper disclosure about the roles of Alfred and Edward Allington had been made to them by the prosecution when it had not been. In the cases of M M Patel and Nilam Patel it was additionally submitted that, to the knowledge of C and E officers, lies had been told by prosecution witnesses during applications to stay proceedings as an abuse of process. In Early the Court referred to a previous case involving LCB, namely Villiers , CACD transcript 9th November 2001. 46. In Villiers the court had held that the Allington brothers had been participating informants whose status was not revealed to the trial judge as it should have been. The Court in that case concluded that C and E officers had actively encouraged personnel at LCB to allow goods to leave the warehouse without duty being paid and that the Allington brothers were facilitating the fraud to the knowledge of C and E officers. In Early the Vice President, Rose LJ said: 10. Judges can only make decisions and counsel can only act and advise on the basis of the information with which they are provided. The integrity of our system of criminal trial depends on judges being able to rely on what they are told by counsel and on counsel being able to rely on what they are told by each other. This is particularly crucial in relation to disclosure and Pll hearings. Accordingly, Mr Gompertz QC [for the respondent], rightly, accepted that when defence counsel advised Rahul, Nilam Patel and Pearcy as to plea, they were entitled to assume that full and proper disclosure had already been made. He also rightly accepted that a defendant who pleaded guilty at an early stage should not, if adequate disclosure had not by then been made, be in a worse position than a defendant who, as the consequence of an argument to stay proceedings as an abuse, benefited from further orders for disclosure culminating in the abandonment of proceedings against him. Furthermore, in our judgment, if, in the course of a PII hearing or an abuse argument, whether on the voir dire or otherwise, prosecution witnesses lie in evidence to the judge, it is to be expected that, if the judge knows of this, or this court subsequently learns of it, an extremely serious view will be taken. It is likely that the prosecution case will be regarded as tainted beyond redemption, however strong the evidence against the defendant may otherwise be. Such an approach is consistent with the view expressed by this court, in Edwards [1996] 2 CAR 345 @ 350F where, in a different context, Beldam LJ referred to the suspicion of perjury starting to infect the evidence and permeate other similar cases in which the witnesses are involved. We approach the question of safety of these convictions, following pleas of guilty, in accordance with Mullen [1999] 2 Cr App R 143 as approved in Togher & others [2001] 1 Cr App R 457 , namely a conviction is generally unsafe if a defendant has been denied a fair trial. We bear in mind, in particular, three observations by Lord Woolf CJ in Togher. First, at paragraph 30, “if it would be right to stop a prosecution on the basis that it was an abuse of process, this court would be most unlikely to conclude that, if there was a conviction despite this fact, the conviction should not be set aside”. Secondly, at paragraph 33, “The circumstances where it can be said that the proceedings constitute an abuse of process are closely confined. It has to be a situation where it would be inconsistent with the due administration of justice to allow the pleas of guilty to stand”. Thirdly, at paragraph 59, freely entered pleas of guilty will not be interfered with by this court unless the prosecution’s misconduct is of a category which justifies this. A plea of guilty is binding unless the defendant was ignorant of evidence going to innocence or guilt. Ignorance of material which goes merely to credibility of a prosecution witness does not justify reopening a plea of guilty. 47. In Early the CACD said this about the appeal of one of the appellants, MM Patel: 17. In our judgment the material now before this court shows (i) lies were told to Judge Hucker by prosecution witnesses in the course of PII hearings and on the voir dire; (ii) those lies were told by reason of a deliberate decision on the part of C & E to conceal from the judge the true status of Alfred Allington and the real nature of the relationship between C & E and LCB; (iii) the judge, in giving his rulings as to disclosure and to whether there should be a stay for abuse, was materially mislead by those lies reaching conclusions, now known to be wrong, that Alfred Allington was merely acting as a trade source and that there was no collusion between LCB and C & E to facilitate the frauds, including that in which this appellant was said to be involved; (v) had the judge known the true position it may be that his decision in refusing a stay would have been different; (v) the appellant pleaded guilty only after the abuse submission had failed. 18. It is a matter of crucial importance to the administration of justice that prosecution authorities make full relevant disclosure prior to trial and that prosecuting authorities should not be encouraged to make inadequate disclosure with a view to defendants pleading guilty. ... When inadequate disclosure is sought to be supported by dishonest prosecution evidence to a trial judge, this court is unlikely to be slow to set aside pleas of guilty following such events, however strong the prosecution case might appear to be. Lord Woolf CJ in paragraph 59 in Togher enunciated general principles with which we respectfully agree: he was not dealing with, and it seems unlikely that he had in mind, a case in which non-disclosure, accompanied by perjury, preceded a guilty plea. 19. Accordingly, M M Patel’s appeal is allowed. His conviction, notwithstanding his plea of guilty, is unsafe and is quashed, as is the confiscation order made against him. 48. Mr Nolan relies upon the following passage from Early : 19. ... In the ordinary way we would have ordered a re-trial so that a trial judge, on the basis of honest evidence , could have had the opportunity of deciding about disclosure and about whether or not a stay should be granted. However, as the appellant [Patel] has already served his sentence and it is nearly 6 years since the offence is alleged to have taken place, we make no such order, as it would not be in the interests of justice to do so. (Emphasis added) 49. We shall return to that passage shortly. In the cases of other appellants a retrial was not sought or, if sought, was considered but not ordered in the light of all that had happened. 50. The respondent also relied upon Smith (Matthew) & Ors [2004] EWCA Crim 2212 . In that case there had also been non-disclosure in a C and E case relating to a witness called Moore. In the case of some of the appellants who had been convicted after a trial their appeals were allowed because Moore in his evidence during their trial asserted that he had not expected any reward. In the words of Latham LJ: The documents which have now been disclosed would have provided significant cross-examination material which could have undermined that assertion. Whether or not it would have done so is not a matter about which we can speculate. The appellants were entitled to disclosure of that material which could have had an effect on the verdicts of the jury. 51. In the cases of those who had pleaded guilty, the Court quoted the passage from Early which we have already set out and went on to say: 21. We see no escape from the conclusion that this submission is correct. The applicants were therefore denied the opportunity to deploy that material in support of the abuse of process application and were accordingly denied a fair trial. Despite their pleas of guilty their convictions were unsafe; and neither the fact that they pleaded guilty nor, as far as two of them were concerned, that they admitted the offences in the Newton hearings can affect that position. They were entitled to a proper determination of the issue as to whether or not they should be arraigned. 22. It is unnecessary for us therefore to decide whether the non-disclosure was deliberate or not. That issue may be relevant if there were to be a retrial and a renewed application to stay for abuse of process. It would accordingly be inappropriate for us to make any comment about it. 52. We question whether in the light of the passage from Early and in the absence of a finding of deliberate non-disclosure amounting to severe prosecutorial misbehaviour, the Court was right to quash the convictions following a guilty plea. Chalkley and Jeffries [1998] 2 Cr App R 79 demonstrates the reluctance of the CACD to quash a conviction following a guilty plea. 53. The Court in Smith said that it was prepared to consider the issue of a retrial but a retrial was sought and granted only for two of the appellants convicted by the jury. Given that their convictions were unsafe because of non-disclosure and in the absence of a finding of severe prosecutorial misbehaviour, this case is of no help to us. 54. We turn then to the passage in Early relied upon by the respondent, being the passage set out in paragraph 48 above: In the ordinary way we would have ordered a re-trial so that a trial judge, on the basis of honest evidence, could have had the opportunity of deciding about disclosure and about whether or not a stay should be granted. 55. This is not an easy passage to follow. The Court envisages that the judge could be presented with honest evidence and could then decide whether a stay should be granted. But in what circumstances would a stay then be ordered? If the trial judge on a retrial would order a stay because of the prosecutorial misconduct already found by the Court of Appeal, there would be no point in ordering a retrial. If the trial judge did not order a stay for these reasons, then the prosecution would have material available to show guilt, e.g. the guilty plea, anything said in mitigation and any admission made, for example, to a probation officer. (Cf Early paragraph 79, where the court referred to the “serious evidential and professional problems [which] may well arise on a retrial in view of the plea of guilty previously entered by this appellant”.) Given the prosecutorial misconduct which preceded the pleas, could the prosecution rely on this as part of the prosecution case or in cross examination of the defendants should they give exculpatory evidence? We do not find those questions easy. What the respondent does gain from Early is that a retrial was contemplated following a finding of severe prosecutorial misbehaviour. 56. We were also referred to Basdeo Panday v Senior Superintendent Wellington Virgil [2008] UKPC 24 . In that case it was alleged that the Government of Trinidad and Tobago had exerted influence on the Chief Magistrate to convict the appellant. Lord Brown said that the Board was prepared to assume that the Government could be shown to have exercised unlawful influence on the original trial. He went on to say: 24. ... the Board simply cannot recognise in this case, even on the assumption made, an abuse of executive power akin to that established in Bennett such as to call for a permanent stay of further proceedings. It is necessary at this stage to look at the Bennett principle and one or two of the later cases which applied it. 57. Lord Brown then discussed the cases of Bennett , Mullen , Latif and the case of Loosely [2001] 1 WLR 2060 . In Loosely the House of Lords held that it was an abuse of the process to try a person who has been lured, incited or pressurised into committing a crime which he would not otherwise have committed. Lord Brown continued: 28. It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the Court at all. In the wrongful extradition cases the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him here. Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do so. True, in both situations, a fair trial could take place. But, given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law. As Lord Hoffmann put it in Looseley at para 40: “The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths [in Bennett ] described the jurisdiction more broadly and, I respectfully think, more accurately, as the jurisdiction to prevent abuse of executive power.” That principle simply has no application here. This appellant has, quite rightly, had his conviction quashed. A fortiori that would have been the appropriate result had he established not merely apparent bias but, consequent on government pressure to convict, actual bias. But the quashing of his conviction restores the appellant to the position he was in before the unfair trial. Why should his success gain him immunity from what is conceded to be the position he now faces under the Court of Appeal’s order: a fair trial upon charges properly brought? 58. It was submitted on behalf of the appellants that, but for the abuse, they “would never have been before the Court at all.” But if there had been full and honest disclosure of how Chapman had been treated the appellants would have been sent for trial and thus before a court. Indeed it is likely that there would have been a trial unless the court concluded that, in the light of the disclosed inducements, the evidence of Chapman should be excluded or unless the disclosed unlawful activities of the police officers would have led the court to say that it would be an affront to the public conscience to allow the prosecution to proceed. 59. We were also referred to Grant [2005] EWCA Crim 1089 ; [2006] QB 60 ; [2005] 2 Cr App R 28 . The appellant had been convicted of conspiracy to murder. The police had deliberately eavesdropped on and recorded conversations between the appellant and his solicitor in the exercise yard of the police station where the appellant was being held. The intercepted material had not been relied upon by the prosecution and its interception had not, so it appeared, otherwise prejudiced the appellant. Nothing was used as, or led towards, any evidence to be called by the Crown. The trial judge had made findings of fact in favour of the prosecution and his findings of fact were overturned by the CACD. 60. Laws LJ giving the judgment of the court allowing the appeal and quashing the conviction said: 52. Acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court's process. So much seems to us to be plain and obvious and no authority is needed to make it good. The only question that requires examination is whether such proceedings ought to be characterised as an abuse of the process, and the prosecution stopped, if the defendant or defendants have suffered no prejudice in consequence of the relevant unlawful acts. 54. ... 55. ... True it is that nothing gained from the interception of solicitors' communications was used as, or (however indirectly) gave rise to evidence relied on by the Crown at the trial. Nor, as we understand it, did the intercepts yield any material which the Crown might deploy to undermine the defence case. But we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person's right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court. In R v Derby Magistrates Court ex p. B Lord Taylor CJ said: "Legal professional privilege is… much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests." It is unnecessary to multiply authority to demonstrate the importance which the law attaches to legal professional privilege. It is enough to say that in this area the jurisprudence of the European Court of Human Rights marches with the common law: see Lanz v Austria , S v Switzerland , Niemitz v Germany, Brennan v UK . The reasoning in this last case shows [ that a breach of Article 6 of the European Convention on Human Rights may be constituted by an infringement of the right to confidential legal advice even though it is not shown that in consequence the accused cannot have a fair trial. 55. Now, it is not in general the function of criminal courts to discipline the police. Not every misdemeanour by police officers in the course of an investigation will justify a stay on grounds of abuse. And plainly there are cases where prejudice or detriment to the defendant must be shown; indeed the case where the defendant is denied a fair trial by the prosecutor's act or omission may be thought a paradigm of abuse of process. Where a fair trial remains possible, faced with an application for a stay on grounds of abuse the court has a balance to strike. On the one hand public confidence in the criminal justice system has to be maintained; and where misconduct by the police or prosecution is shown, that will favour a stay of the proceedings. On the other hand, it is the court's duty to protect the public from crime, especially serious crime; that consideration may militate in favour of refusal of a stay. 56. Where the court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case. ... 57. We are quite clear that the deliberate interference with a detained suspect's right to the confidence of privileged communications with his solicitor, such as we have found was done here, seriously undermines the rule of law and justifies a stay on grounds of abuse of process, notwithstanding the absence of prejudice consisting in evidence gathered by the Crown as the fruit of police officers' unlawful conduct. ... As for prejudice, it is a particular vice of the police conduct in such circumstances as these ... that the court cannot know whether the police misconduct has in fact yielded fruit in the form of evidence, whether directly or indirectly, without enquiry as to what the covert surveillance revealed; but that would further violate the suspect's right of legal professional privilege. ... 58. In all these circumstances, we conclude that there was abuse of the process here and [the trial judge] should have stayed the proceedings in consequence. We understand it to be accepted that if the court reaches this conclusion, the conviction falls to be treated as unsafe. In those circumstances the appeal will be allowed. 61. Although the Court had concerns that the police misconduct may have yielded fruit, the Court took the view (as the question certified for the House of Lords makes quite clear) that the appellant could have had a fair trial on untainted evidence. Professor Ormerod’s helpful commentary on the case in the Criminal Law Review [2005] Crim LR 955 points out that there were numerous bases for a stay in this case. 62. Grant is not a case in which, to use Lord Brown’s words in Basdeo Panday , “but for an abuse of executive power, he would never have been before the Court at all.” Putting the misconduct to one side, the appellant could have a fair trial (and probably did). Whilst helpful to the appellants, it should be remembered that Grant involved, as Laws LJ said, a deliberate violation of “a fundamental condition on which the administration of justice as a whole rests”. 63. In the light of the law and the findings which we have made in this case, do we have the power to order to order a retrial on the facts of this case? It seems to us that we have. No authority prevents us from so doing. Basdeo Panday supports such a conclusion and Early offers some limited support, as also does the established principle that the court is entitled to balance the competing public interests. Here there are two competing public interests: the conviction of those guilty of murder and the vital importance of maintaining the integrity of the criminal justice system when that integrity is put at serious risk by prosecutorial misbehaviour of the kind in this case. 64. Having decided that we have the power to order a new trial, should we in principle exercise it? 65. In some cases no retrial will be ordered because the prosecutorial or executive misbehaviour has so infected the trial that a fair trial could not now take place. In our view, if there is to be a retrial, the trial judge can ensure that the prosecution calls no challenged evidence the reliability of which may be undermined by what the North Yorkshire Police and the CCRC have now discovered. 66. There are good reasons why a retrial should not be ordered. They are: (i) the nature and scale of the prosecutorial misconduct; (ii) the fact that the misconduct infected both the trial and the first appeal; (iii) the fact that the prosecution case was based more or less entirely on the evidence of Chapman and the appellants would not have been charged or tried in its absence; (iv) the strong possibility that the trial would not have proceeded (being either aborted by the prosecution or stayed by the judge) if the circumstances of Chapman’s treatment by the police had been made known to the prosecuting team; (v) the circumstances in which Maxwell’s admissions were made, namely: (a) the first admission (to his solicitor) would not have been made had it not been for the conviction obtained by prosecutorial misconduct. Having been made, it would never have come to light had it not been for the fact that, due to prosecutorial misconduct, the appeal failed and a subsequent investigation by the CCRC was necessary, in the course of which Maxwell waived privilege; (b) the admissions made subsequently would not have been made had it not been for the unsuccessful appeal and (in the case of the admissions to the North Yorkshire Police) the CCRC investigation necessitated by the prosecutorial misconduct; (vi) both appellants have served 12.5 years in prison, a longer term than they would receive if they were found guilty of manslaughter, the offence which Maxwell is admitting. 67. We accept the strength of these reasons, but we have reached the conclusion (not without difficulty) that the public interest in convicting those guilty of murder outweighs the public interest in maintaining the integrity of the criminal justice system. This was a shocking case and if there is new and compelling evidence untainted by the prosecutorial misconduct revealed by the findings of the North Yorkshire Police and the CCRC, we should order a new trial. In particular we bear in mind that the new and compelling evidence relied upon by the respondent as against Maxwell consists of admissions made to the North Yorkshire Police by Maxwell with the benefit of legal advice during the course of an investigation into the safety of his convictions and that Maxwell said to the police that he would like a retrial and that he would plead guilty to the robberies and manslaughter. We now look at the various admissions upon which the respondent relies. 68. The alleged Maxwell admissions break down into four main headings: i) Admissions to his then legal representative Mr. Simon McKay 1998- 99; ii) Admissions to Home Office Research Project in 2000; iii) Admissions to the Prison and Probation Services 1999 -2004; iv) Admissions to North Yorkshire Police 2003 -2005. 69. We start with the first heading, alleged admissions made by Maxwell to his legal representative In 1998, after the trial, Maxwell instructed new solicitors, Chadwick Lawrence Solicitors of Wakefield. It was subsequently established that these Solicitors held a file relating to Maxwell. Mr. Conaghan, Maxwell's then solicitor, obtained a copy of the papers held by Chadwick Lawrence, which he released to North Yorkshire Police on 20 th August 2004, with the relevant signed waiver. On 5 th October 1998 Maxwell informed the solicitors of his and his brother's conviction and requested they represent him. The file papers show that Mr Simon McKay came to see Maxwell at HM Prison Leeds on 12 th October 1998. An Attendance Note, the accuracy of which has been confirmed by Mr McKay, states: I explained to Paul that I would take his case on and advised about the jurisdiction of the Criminal Cases Review Commission and about "fresh evidence".... I emphasised that if he was guilty it would be a waste of his time and mine if he allowed me to pursue the case on the basis that he was not guilty. To my great surprise Paul confessed that he and his brother did do the murder. I went on to discuss the matter at greater length with the client who I felt appreciated the opportunity to get it off his chest. He explained that at no stage did he ever anticipate any injury would be caused to Mr Smales. At the time of the murder, he was in fact inside the house, whilst his brother carried it out in the garden. In short, Paul was neither privy to any knowledge of his brother's intentions, nor proximate (relatively speaking) to where the killing took place. I told Paul that on the basis of what he had told me, I felt that he could have a possible appeal on the authority or R-v-English and R-v-Powell. 70. The solicitor in a later meeting with Maxwell told him that it would be necessary for him to prepare a detailed and persuasive confession if there was to be any chance of a successful appeal. In response Maxwell wrote out a lengthy statement dated 21 February 1999 which he also asked to be kept on his prison file. We take a summary of that statement from a document prepared by the respondent for the hearing before us. June robbery 1.9 With regards to the June offence Mr. Maxwell describes how he and his brother, Mr. Mansell had attended at the Smales address with the intent to distract the occupants, enter and search the premises with intent to steal. 1.10 On approaching the address they were met with suspicion by Bert Smales and Mr. Maxwell had to barge into the house, punching Mr. Smales in the face. Mr. Mansell searched the house and stole property, money in a tin. 1.11 As they prepared to flee the scene Joe Smales entered the room and Mr. Mansell restrained him by threatening him with a pair of scissors. 1.12. Mr. Maxwell and Mr. Mansell fled the house locking the door behind them from the outside as they did so. They shared the spoils which totalled about £2,000. 1.13 Mr. Maxwell related the event to a third party [presumably Chapman] who in turn informed him that they had missed the main amount of money. This was discussed with Mr. Mansell and both men made the decision to return to the Moor Road address and commit a further offence. October robbery 1.14 Mr. Maxwell's account is that he and Mr. Mansell returned to the Moor Road address to commit a further robbery. The plan was to knock on the door and when it was answered overpower the occupants and tie them up. However the plan became dislocated when Joe Smales was seen to be in the garden. Mr. Mansell was directed to go and speak to the old man and keep him talking. 1.15 As Joe Smales was distracted, Mr. Maxwell kicked open the door only to be confronted by Bert Smales. Mr. Maxwell took hold of Bert Smales and dragged him into the hall, punching him to the face breaking his nose. Bert Smales was then dragged into another room by Mr. Maxwell and he then proceeded to search the room, before moving onto search another downstairs room. 1.16 Mr. Mansell re-joined Mr. Maxwell saying that Joe Smales, "... was out there ..." Mr. Mansell kept guard over Bert Smales and proceeded to search the upstairs of the house where he found a quantity of bank notes in a coat. Mr. Maxwell went back downstairs and Mr. Mansell was standing near the back door with a biscuit tin in his hands. 1.17 Mr. Maxwell looked into the room where Bert Smales was and noted that there was a lot more blood on his face than previously. 1.18 Mr. Maxwell and Mr. Mansell left via the rear door and Mr. Maxwell noticed that Joe Smales was lying in the garden. He made no note of his condition but was "frightened" on seeing him and quickly left with his brother. 1.19 Mr. Mansell took the tin away with him and opened it as they travelled from the scene saying it was full of coins. 1.20 The two men stopped at a nearby service station to buy cigarettes and a drink. Mr. Maxwell asked Mr. Mansell what had happened to Joe Smales in the garden. At this Mr. Mansell replied that he had to hit him as the old man kept trying to look at his face. Mr. Mansell denied doing anything further to Bert Smales in the house, though Mr. Maxwell did not believe this due to the extent of the injuries he noted on leaving the house. 1.21 Mr. Maxwell and Mr. Mansell returned to Mr. Mansell's home address and they shared out the proceeds of their crime which came to £3,000. They then disposed of their clothing and the tin stolen from the house. 71. At the same time Maxwell also wrote a letter to his brother in which he wrote: I have told my solicitor the truth and I have asked him to inform the appeals Court that I wish to appeal against the murder only -and guilty of the robbery. He is coming to see me in two weeks and I have agreed to give him a sworn affidavit. I know you will be angry Danny but I know we will not get out by maintaining our innocence when all the evidence points to us -so that leaves us both serving life for part of the crime that only you committed. 72. Mansell in his reply denied that he was involved in the offences and said that he was not prepared to do any deal for something that he had not done. 73. Later Maxwell told his solicitor: “1 don't think I can go on with what we have discussed." Maxwell added a postscript, "I would be obliged if you destroyed all our earlier correspondence." 74. We turn to the alleged admissions made during the Home Office Research Project in 2000. Detective Chief Superintendent Steele commenced research to formulate a strategy to prevent and detect distraction burglaries against older adults. The Home Office Police Research Group funded the project. Chief Superintendent Steele interviewed Maxwell in the course of his research. Maxwell had seen Mr Steele on television and wrote to him saying that he wanted to offer his help “in his quest to protect the old and vulnerable”. Mr Steele met with Maxwell at Wakefield prison on 2 nd March 2000. With Mr. Steele were Detective Constables Ward and Hepworth. 75. According to the prosecution document: 2.5 The notes of Mr. Maxwell's meeting with officers on 2 nd March 2000 refer to him admitting the robbery offences committed against the Smales' brothers in both June and October 1996. Within the notes Mr. Maxwell explains how he became aware of the vulnerability and location of the Moor Road address and the Smales. 2.6 In connection with the "Smales offences" it is recorded: "These were committed with his brother. The address was that of a 'flyer' supplied by [Chapman.] Maxwell knew the address had been attacked previously in a bogus official offence. He travelled with his brother from the Manchester area to the Smales address on two separate occasions. The first time, Maxwell had a clipboard with him. (Didn't expand on what 'official' he was supposed to be.) The door was answered and they immediately barged in. Joe was slightly injured in the struggle. Money was found in the bedroom. Maxwell and his brother again visited the Smales address. On arrival Joe was found in the rear garden. Maxwell told his brother to keep Joe talking whilst he went into the house and stole the money; Maxwell 'boots' the door in and is confronted by Bert. Maxwell punches Bert in the face and recalls hearing his nose break. Maxwell's brother comes in from the garden and Maxwell goes upstairs to get the money from the cupboard. Both leave the house and Maxwell sees that Joe is lying in the garden. Maxwell's brother explains that he punched Joe in the face as he was struggling to get away. Joe subsequently died from his injuries. Both were eventually convicted. 76. We turn to alleged admissions to the Prison and Probation Services 1999 -2004. A contemporaneous note on the Local Prison Assessment (Life Sentence Plan) file states that the author interviewed Mr. Maxwell on 24 th February 1999. and records: He accepts the guilty part he played but states that the deceased did not die at his hands and indeed admits that he used as much violence on the victim who survived as his brother did on the victim who died. Later reports show that he continued to make similar admissions. 77. We turn finally to alleged admissions made to the North Yorkshire Police 2003 -2005. 78. Maxwell was interviewed by North Yorkshire Police about each of the admissions he had made as they were discovered during the investigation. Maxwell said that the admissions were false with regards to those recorded by Mr. Steele and in prison records and that these admissions were made out of expedience as he sought to work the parole system and the process in which prisoners were allocated prisons. He was running this strategy in tandem with the appeals process, which was based on the fact he was not guilty of the matters he was convicted of. These statements to North Yorkshire Police were obtained between November 2003 and April 2004. 79. In the light of the additional material indicating Maxwell had made admissions to his Solicitors in October 1998, Detective Chief Superintendent McKay and Detective Chief Inspector Gray of the North Yorkshire Police met with Maxwell and his solicitor Mr. Conaghan at HM Prison Dovegate on 14 September 2004. After a discussion with him about his application to the Criminal Cases Review Commission and about the admissions he had made in the past, Maxwell spent some time in conference with his solicitor before stating that he wished to admit to being present on the robberies of the Smales brothers in June and October 1996. During the interview Maxwell made a statement in which he says: I now admit the robberies of the Smales brothers in June and October of 1996. My brother was with me on both occasions. No one else was present. I was not involved in the death of Joe Smales and had had no intention to cause serious injury to either of the brothers. 80. In a lengthy statement dated 23 September 2004 Maxwell adopted the account he gave of the robberies in the document dated 21 February 1999 written out for his solicitor Mr MacKay and put, at Maxwell’s request, on his prison file. He said that the contents of “are true but there may be one or two minor inaccuracies.” He also wrote: It got harder and harder for me to lie to the Operation Douglas team. I have tried in the past to get Danny to admit his part, eventually it was obvious from the amount of information Operation Douglas had uncovered that I should tell the truth. I never believed my admissions to the prison service would be obtained by the police and I didn’t feel disloyalty to my brother. I have thought long and hard about admitting this offence but it’s not that easy but I’m relieved I have now. I would like a retrial and I would plead guilty to robbery and manslaughter. 81. A final statement was made by Maxwell in June 2005 to North Yorkshire Police. In it Maxwell said that although he had anticipated the use of force in the commission of the October robbery and had entered into a joint enterprise with Mansell to commit that offence, he had not contemplated that either he or Mansell would cause serious injury. He accepted that he saw himself as playing the leading role “given that I was a far more experienced criminal than Danny”. He described Mansell as somewhat nervous on both occasions but “I never dreamed that he would use such serious violence against the brothers.” 82. Mr O’Connor attacks the reliability of the admissions. He points out that some of the detail must be wrong. He submits that the admissions to the solicitor are no more than an attempt to use Powell and English to obtain, via an appeal, a verdict of manslaughter. As to the admissions made to prison and probation officers he points out that unless a prisoner admits responsibility for an offence his chances of parole are substantially reduced. 83. We have no doubt that the evidence of these alleged admissions is new and compelling. Of particular importance is the handwritten document of February 21 1999 the truth of which was admitted in the presence of a solicitor in September 2004. 84. We turn to Mansell. The respondent submits that Maxwell’s admissions are admissible against Mansell under the hearsay provisions of section 114 of the Criminal Justice Act 2003 . The respondent submits that if they are admissible and if the jury were to convict Maxwell of murder then the jury could properly convict Mansell on the basis that both in his interview and in evidence Mansell said that he was with Maxwell on the day of the second robbery: see Hayter (2005) 2 Cr App R 37 . The respondent also points to evidence said to support the case that Mansell was involved in the robbery (namely evidence from an A-Z book, evidence of a boot print and the evidence of Elaine Adams). 85. Applying the new and compelling evidence test, the respondent’s argument cannot succeed unless Maxwell’s admissions are admissible against Mansell under the hearsay provisions of section 114 . The respondent accepts that the decision whether they are admissible would have to be taken by the trial judge but submits that we should anticipate a likely ruling in favour of admissibility. In our view we cannot at this stage do that. It is well established that section 114 must be approached with caution. As Stanley Burnton LJ said in Z [2009] EWCA Crim 20 : 20. In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented. As Scott Baker LJ said in O’Hare [2006] EWCA Crim 2512 at paragraph 30: “We think it important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.” 86. The judge in that case had admitted under section 114 evidence of D, whose challenged written statement was admitted as evidence of bad character. D alleged that she had been sexually abused and raped by the appellant when she was young. D was unwilling to give evidence. As to this Stanley Burnton LJ said: 24. ... Cases must be rare indeed in which such significant potentially prejudicial evidence as that of D should be admitted as hearsay where the maker of the statement is alive and well and able, although reluctant, to testify, and her reluctance is not due to fear (i.e., the condition in section 116(2)(e) is not satisfied). 87. In addition to section 114 the judge would have to consider section 78 of PACE and the difficult issue considered in Horncastle , [2009] EWCA Crim 964 ; [2009] 2 Cr App R 15 , in which the judgment of the Supreme Court is awaited. 88. Until the outcome of any trial against Maxwell is known and until it is known whether Maxwell would be willing to give evidence against Mansell, it seems to us not to be possible to say that the Maxwell admissions constitute new and compelling admissible evidence against Mansell. 89. That leaves us in the difficult position that there is new and compelling evidence against Maxwell but not against Mansell. If Maxwell’s admissions are to be believed, it was not he - but Mansell – who killed Joe Smales. He has been (at times) frank about his involvement and has encouraged Mansell to do likewise. It is, it could be said, intrinsically unfair that we order a retrial for Maxwell but not for Mansell. On the other hand, it is not unusual for there to be sufficient evidence to convict one defendant who admits to committing an offence with another, but not sufficient admissible evidence against the other. 90. In conclusion we quash the convictions and, having given anxious consideration to the issue, we have decided to order a retrial in the case of the appellant Maxwell only. Mr O’Connor did not submit that Maxwell’s retrial should only be on a manslaughter charge and, in any event, in our view there is evidence in the various admissions to support a conviction for murder on the basis of joint enterprise. He will therefore be retried on the count of murder and the two counts of robbery of which he was convicted. We do not order a retrial for Mansell.

```yaml citation: '[2009] EWCA Crim 2552' date: '2009-12-01' judges: - LORD JUSTICE HOOPER - MRS JUSTICE SWIFT DBE ```

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

Neutral Citation Number: [2008] EWCA Crim 1870 No: 200605208/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 29th July 2008 B e f o r e : LORD JUSTICE PILL MR JUSTICE KING DAME HEATHER STEEL DBE - - - - - - - - - - - - - - R E G I N A v LIAM WILLIAM GRANT - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr A Tucker appeared on behalf of the Appellant Mr D A F Jones appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE PILL: On 12th April 2006, at the Crown Court at Warwick before McKinnon J and a jury, Liam William Grant was convicted of abducting a child under section 2(1)(a) of the Child Abduction Act 1984 . On 11th August 2006 he was sentenced by Mr Recorder Raggatt QC to a community order for a period of three years. Three requirements were imposed: (1) supervision requirement whereby the applicant was ordered to co-operate with any medical assessment undertaken by the Disability Unit and attend appointments at Oliver House or other premises of the Learning Disability Services as directed: (2) prohibited activity, in that the appellant is not to enter public parks or recreational areas, save in the company of an adult approved by the probation service for three years; (3) residence requirement, that the applicant must reside as directed by the probation services. 2. Mr Grant appeals against conviction by leave of the Full Court granted this morning, the application for leave having been referred by the single judge. The single judge granted the required extension of time. 3. In the evening of 20th June 2005 an eight year old boy was riding his bicycle with his dog in Babbs Mill Park in the Birmingham area. A man had been watching him. The man approached him and asked him to go into the bushes with him. The boy refused, whereupon the man grabbed his arm and tried to drag him into the bushes. The boy vigorously attempted to stop that. He also cried out and members of the public intervened. The man made off. 4. The prosecution case was that the appellant was the man who approached the boy. The defence case was that it was not him. The witnesses who identified him were not eye witnesses but saw him near the scene and there was a sufficient link with the events to make the identification relevant. Two such witnesses identified the appellant on an identity parade, the boy having failed to do so. 5. A number of witnesses were called. The trial lasted a period of three days. The appellant did not give evidence. Two character references were supplied and a witness gave oral evidence that she had had a lot of contact with the appellant and had never known him to hurt or frighten a child. 6. The appellant is now 44 years old. He had no previous convictions. The appellant was represented then, as he is now, by Mr Tucker. Before sentence he sought an adjournment so that a psychiatric report would be obtained. The application for an adjournment was refused. 7. Medical evidence has subsequently become available of the mental health of the appellant. We shall refer to it in more detail. It is because of that evidence that the appellant asks the court to follow the procedure set out in section 6 of the Criminal Appeal Act 1968 as amended. 6(1): "This section applies where, on an appeal against conviction, the Court of Appeal, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion -- (a) that the proper verdict would have been one of not guilty by reason of insanity; or (b) that the case is not one where there should have been a verdict of acquittal, but there should have been findings that the accused was under a disability and that he did the act or made the omission charged against him. (2) The Court of Appeal shall make in respect of the accused -- (a) a hospital order (with or without a restriction order); (b) a supervision order; or (c) an order for his absolute discharge." 8. On behalf of the appellant Mr Tucker submits that on the evidence before the court it is established that the appellant was not fit to plead in April 2006. He submits that the procedure in the section should be adopted. The jury have made a finding that the appellant did the act charged against. The court should exercise its power in such circumstances to make a supervision order. 9. Before the sentencing court in 2006 was a pre-sentence report with an addendum. That report did not raise the question of fitness to plead. There was a letter from the probation services indicating the risk of self-harm were a custodial sentence to be imposed. 10. Before the sentencing hearing a psychological report was available. That dealt in considerable detail with psychological matters but did not raise the question of fitness to plead. 11. However, three days before the sentencing hearing a psychiatric report was provided. That is one of the reports now relied upon. It is the report of Dr H Boer, a consultant forensic psychiatrist. It is dated 8th August 2006. The doctor set out with care the findings of Dr Trent in the psychological report and the low IQ of the appellant. The appellant had suffered an accident while a baby and suffered brain damage almost certainly as a result of that accident. Dr Boer stated his opinion: "1. In my opinion Mr Grant is under a disability in relation to trial, and I have significant concerns about his fitness to plead at the time of his trial. He has limited understanding of court proceedings and his ability to fully understand the evidence against him and to instruct his solicitors is significantly impaired. 2 Mr Grant suffers with a significant learning disability and [he therefore suffers from mental impairment as defined in the Mental Health Act 1983] . 3. Mr Grant appears to have suffered a brain injury either at birth or at the age of one year resulting in learning disability and right sided hemiparesis (weakness of his right side) and possibly right sided blindness." 12. Reference is made in the report to the considerable help which the appellant has had through his life from his parents. Reference was also made to the extreme vulnerability of the appellant if there were to be a custodial disposal. 13. The learned Recorder proceeded to sentence, notwithstanding the application for an adjournment, and he made the community order to which we have referred. That, of course, was a non-custodial disposal and it included a supervisory element. 14. A psychiatric report was obtained by solicitors acting for the appellant. It is dated 2nd May 2007 and was supplied by Dr Dinesh Maganty, a consultant forensic psychiatrist. 15. Having already set out the background, we need only refer to Dr Maganty's opinion. "[The appellant] would satisfy the criteria for mild mental retardation ... He would be at the lower end of this category. Even though Mr Grant suffers with significant cognitive impairments affecting his judgment, thinking process and reactions to stress consequently, his external demeanour and physical appearance masks this condition." 16. Reference is made to the lack of change which would have occurred in the appellant's abilities over the years. Reference is made to a depressive episode which the appellant had suffered. 17. At paragraph 4: "Due to his mental impairment and mental illness during his trial in April 2006, Mr Grant would not have been able to comprehend the evidence presented against him and would not have been in a position to give evidence in his own defence (which he did not do) on the balance of probabilities. It is also unlikely that he had a clear comprehension of the court process including the role of a jury and that of a judge. It is unlikely that he would have been able to challenge a juror due to his mental state at that time. I also have some doubt as to whether he would have been able to instruct his legal team appropriately during that period. Considering all the above, in my opinion, it was unlikely that he was fit to plead and fit to stand trial during April 2006." 18. Dr Maganty recommended a supervision order under the provisions to which we have referred. 19. A further letter from Dr Boer indicates that no medical requirement in any supervision order is appropriate. Dr Boer clearly has not altered the opinion as to fitness to plead which he expressed in his report. 20. The court has a helpful letter from Leisa Walsh, the probation officer responsible under the West Midlands Service for supervising the appellant. He was allocated to her, taking over from another colleague, on 6th November 2007. We do not propose to read the whole of the letter. Credit is given to the appellant for attending sessions and attempting to complete work tasks that are given to him. The appellant remained in denial with regard to the offence. His level of understanding limits his ability to understand the regular concepts used by the probation service. The appellant has been attending weekly sessions with the Skills for Life tutor, Miss Janet Daniels: "She advised that he is developing his listening and speaking skills, although he tends to use the time to discuss personal issues." 21. Miss Daniels stated that she would like him to continue seeing her. She believes he responds well to the support she can give. She sees improvements in his self-esteem and confidence. Support is likely to be available for an unlimited time under that service, though Mr Tucker has told the court that there is a funding problem to which we need not refer further. It is much to be hoped, in our view, that the Skills for Life therapy is continued. 22. Having considered that evidence, we have come to the conclusion that this appeal should be allowed. We have considered the written evidence of two appropriate medical practitioners. Their opinion is that the appellant was unfit to plead when he had this trial in April 2006. The doctors plainly understand the legal concept and the test by which fitness to plead is assessed has been set out in one of the reports. 23. In our judgment, the appropriate order is a supervision order. We are able to make an order for a period of two years, beginning with today's date, and we do make such an order. We have a duty to explain it, which we will do in a moment, to the appellant. It is appropriate that there should be certain conditions attached. The appropriate provisions are set out in Schedule 1A to the Criminal Procedure (Insanity) Act 1964 as amended. 24. We have had the advantage this morning of the attendance and advice of Mr Gardner, the liaison probation officer at the Royal Courts of Justice. He told the court that he had spoken to Miss Walsh yesterday and he has had a short opportunity this morning to discuss the case with counsel, Mr Tucker. 25. The order we make is to specify the local justice area, which we are told is Warwickshire, in which the appellant resides and he will be required under paragraph 3(1)(b) of Part 2 to Schedule 1 to be under the supervision of an officer of the appropriate probation board for the area. The appellant will be under a duty to keep in touch with the supervising officer in accordance with such instructions as may from time to time be given by that officer. He shall notify any change of address. In our judgment, it is appropriate to make a condition of residence. The appellant's parents have behaved magnificently to him over the years. They are prepared that he should reside with them. We make a condition accordingly. That is under paragraph 8 of Part 2. We will be supplied with the address in a moment. 26. Clearly there must be concern when someone, who on evidence subsequent to the trial has been shown clearly not to be fit to plead, was made subject to a trial. We have the advantage of hearing today both counsel who appeared at the trial: Mr Tucker already mentioned and Mr David Jones for the prosecution. We have referred to the medical report of Dr Maganty and we repeat a statement at paragraph 2, that the appellant's difficulties are masked by his external demeanour and physical appearance. Thanks, among other things, to the care of his parents over the years he does not display as having the limitations which on further examination it is clear that he does have. Neither counsel at trial nor the judge were aware of the extent of his disability. 27. We cannot in the circumstances criticise anyone for the course events have taken. We do, however, stress that there is a duty on those advising defendants to consider this question and, if necessary, to bring to the attention of the judge the possibility of unfitness to plead. It was the mask of the condition, we are confident, referred to by those involved, which meant that steps were not taken before the trial. 28. For the reasons we have given, we allow this appeal against conviction, we quash it and exercise our powers under section 6 of the 1968 Act to make the orders we have. 29. LORD JUSTICE PILL: Mr Tucker, we are under a duty to explain in ordinary language to the appellant. Would he come forward and his father so that I can discharge that duty? 30. MR TUCKER: I am very grateful. I have explained to them and I am sure there will be no difficulty. 31. LORD JUSTICE PILL: If both gentlemen could come into the well of the court. Mr Tucker senior, only if you want to. You can stay where you are, if not. 32. Mr Grant, as we have indicated in our judgment, we make you subject to a supervision order. That means that you must keep in touch with your supervising officer. And you know Miss Walsh, she has been supervising you for some time now. You must act in accordance with such instructions as from time to time the supervising officer may give you. It is further required that you live with your parents, and the address can be put in the order, and also that you notify any change of address. That order will operate for a period of two years from today. Thank you very much. 33. THE APPELLANT: Thank you.

```yaml citation: '[2008] EWCA Crim 1870' date: '2008-07-29' judges: - LORD JUSTICE PILL - MR JUSTICE KING ```

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 No. 202203482 A3 [2023] EWCA Crim 397 Royal Courts of Justice Wednesday, 22 March 2023 Before: LORD JUSTICE WARBY MR JUSTICE GOOSE HIS HONOUR JUDGE LOCKHART KC REX V KYLE ANTHONY STEVENS __________ 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 N ROBINSON appeared on behalf of the Appellant. THE CROWN were not represented. _________ JUDGMENT LORD JUSTICE WARBY: 1 This is an appeal against sentence in a case of possession of indecent and pornographic images. 2 The appellant is Kyle Stevens, aged 24. On 29 September 2022 he pleaded guilty in the Crown Court at Bournemouth to three counts of possessing indecent photographs of children, contrary to section 160(1) of the Criminal Justice Act 1988, and one count of possessing extreme pornographic images, contrary to section 3(1) of the Criminal Justice and Immigration Act 2008. He was sentenced in the same court on 4 November 2022. 3 On each count the judge passed a three-year community order, concurrent, with a rehabilitation activity requirement, a programme requirement and 140 hours of unpaid work. He ordered the forfeiture of the iPhone on which the images had been discovered, and the usual consequences of a conviction of this nature followed. First, having been convicted of an offence listed in schedule 3 of the Sexual Offences Act 2003, the appellant was required to comply with the notification provisions of that Act. Secondly, having been convicted of an offence specified in regulations under the Safeguarding Vulnerable Groups Act 2006, the appellant was liable to inclusion in the relevant list by the Disclosure and Barring Service. 4 No complaint is made of any of the matters which we have mentioned, nor is any issue taken with the judge's decision to make a Sexual Harm Prevention Order (SHPO), as he did. The challenge is to his decision to make an SHPO lasting as long as 10 years. The single ground of appeal is that in all the circumstances the duration of the order was manifestly excessive or wrong in principle. The Facts 5 The brief facts of the case are that in April 2021, acting on a tip-off from the National Crime Agency, officers attended the appellant's home address where they arrested him and seized his iPhone. On the phone were found a total of 95 Category-A indecent images of children, 22 in Category B and 11 in Category C. All of them were moving images and all were in an accessible format. There were also 13 extreme pornographic images. 6 The appellant did not dispute possession of the images, but in interview he offered an explanation. He said he had two Twitter accounts, one of which was for everyday use and the other was used for looking at adult pornography. Someone had sent him a link and when he clicked on it what he called "dodgy stuff" had popped up, so he had closed the link. However, analysis of his phone showed that he had searched the internet for terms like "jailbait" and the latest images recovered had been downloaded in late March 2021, shortly before the appellant's arrest. Officers also recovered from the phone chats with others involving bestiality and a sexualised chat with someone who claimed to be 15 years of age. 7 The appellant in due course pleaded guilty at the plea and trial preparation hearing on a full-facts basis. Sentencing information 8 As is common in cases of this kind, the appellant was of previous good character. Character references were provided by his mother, father and brother. A pre-sentence report said that he had now admitted viewing the images after clicking the link he was sent, but reported that he had difficulty accepting that his motivation was sexual. He was said to present as "an introverted isolated individual" who lacked insight into his own motivation and suffered from persistent low mood. 9 He was assessed as posing a medium risk of contact sexual re-offending, of internet re-offending and of causing serious harm to children, and a medium risk of harm to himself, but a low risk of harm to other adults. He accepted, however, that his actions were not victimless. He displayed a willingness and capacity to increase his awareness further. According to the report, he had completed an online course designed to achieve this. It was suggested that his insight was likely to improve under the guidance of a professional. 10 The recommendation was for a 36-month community order which required some unpaid work as ultimately imposed by the sentencing judge. The officer wrote as follows: "The imposition of external requirements such as sex offender registration and the sexual harm prevention order which will allow for increased monitoring of his behaviour, including any online activity, if authorised” would be valuable. But nothing was said about the duration of the SHPO. The Sentencing Remarks 11 In careful well-structured sentencing remarks, the judge summarised the key facts and explained the reasons behind those aspects of the sentence that are not challenged. When it came to the imposition of and SHPO, he said this: "I make a Sexual Harm Prevention Order in terms of the draft provided on the digital case system. I make that for a period of ten years, that is to say until 3 November 2032. You will be subject to the notification requirements for a period of five years and what that means is this, you must notify the police of your address and any change of your address within three days of that happening, you must comply with the terms of the Sexual Harm Prevention Order. Were you to fail to comply with either order, you would be committing separate criminal offences which carry a sentence of up to 5 years' imprisonment." 12 This is all succinct and clear, but there was nothing said to explain why the judge had decided to impose a SHPO for 10 years rather than any other amount of time. 13 After the hearing the appellant's solicitors wrote to the judge seeking a reduction of the 10-year period to five years to mirror the notification period but this was refused by the judge. The appeal 14 In support of the appeal, Mr Robinson, who appeared below as well as in this court, said the test for making an order is necessity, that is whether making the order in the terms proposed is necessary to protect the public from the identified risk of sexual harm. Although he accepts that the threshold for linking it all was met and that an order for five years to deliver the duration allowed by the statute was apt. Mr Robinson argued that anything more was excessive, and that an order for 10 years was disproportionate to the risk posed by the appellant and to the seriousness of the offences bearing in mind the mitigation. 15 Mr Robinson places particular emphasis on the risk assessments in the pre-sentence report, the likelihood of success of the community order, and the length of time for which the automatic notifications would continue to apply in any event. He relies also on the probation assessment of the appellant's character and the references provided by his family members. 16 In support of his submissions Mr Robinson has referred us to a number of decisions of this court, including R v Smith (Steven) [2011] EWCA Crim 1772, [2012] 1 WLR 1316, [2012] 1 Cr.App.R (S) 82, R v Hammond (Paul Churchill) [2008] EWCA Crim 1358 and R v Beedle (Robert) [2019] EWCA Crim 1672. Assessment 17 Notification requirements and SHPOs are both important elements of the sentencing armoury in cases of this kind. They do, however, impose significant restrictions on the offender's freedom which need to be tailored, within the statutory framework, to the particular demands of case before the court. 18 The principles that emerge from the authorities we have mentioned include the following: (1) an SHPO should only be imposed if and to the extent of its terms, including the arrangements, are both necessary to protect against an identified risk of harm and proportionate to the nature and scale of that risk; (2) these issues should be the subject of careful consideration by the parties and judge; (3) having identified the appropriate period, the judge should give reasons for this decision on that issue; and (4) the appropriate period of an SHPO will be the same as the period for which the notification requirement needs to last; the two should be in line with one another. 19 On that last point we draw attention to the fact that by virtue of section 352 of the Sentencing Act 2020, an offender who is subject to the notification requirements of the Sexual Offences Act 2003 remains subject to those requirements until the SHPO is discharged. Putting that another way, the notification period is automatically extended to match the period of any longer SHPO. 20 In this case, these principles were not applied. There was, seemingly, no discussion about the duration of the order. It is certainly not apparent why the judge selected a 10-year period for the SHPO. He does not appear to have appreciated that the effect of the SHPO would be to impose a 10-year notification period. He mistakenly told the appellant that his notification requirement would last for five years. It may be that had the judge been alive to the true position he would at least have paused before imposing a 10-year SHPO. At any rate, we are satisfied that in doing that the judge fell into error. 21 This appellant had shown a degree of insight and some commitment to addressing the underlying reasons for his offending. There was reason to think that his understanding would improve in the short to medium term and that his risk of re-offending would reduce over time. In our judgment an SHPO was necessary, but the minimum period of five years was sufficient to cater for the risks posed by this appellant on the material before the sentencing judge. That period matched the statutory notification period. There was nothing in the facts of the offending, the appellant's antecedents, or the pre-sentence report to indicate a real need to go beyond that period. A 10-year period was disproportionate, and to that extent unnecessary. 22 We therefore, allow the appeal, quash that aspect of the order below, and substitute an SHPO in the same terms but for five years rather than 10. __________

```yaml citation: '[2023] EWCA Crim 397' date: '2023-03-22' judges: - LORD JUSTICE WARBY - MR JUSTICE GOOSE - HIS HONOUR JUDGE LOCKHART 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: [2010] EWCA Crim 914 Case No: 200806813 C1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LEEDS CROWN COURT MR JUSTICE GRIGSON T20027586 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/05/2010 Before : LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE MACKAY and MR JUSTICE LLOYD JONES - - - - - - - - - - - - - - - - - - - - - Between : Julie Kenyon Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr P Dunkels QC and Miss S Shapiro (instructed by Morris and Warren ) for the Defendant Mr R Smith QC (instructed by Crown Prosecution Service ) for the Crown Hearing dates : 19 th February 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hughes: 1. This appeal against conviction comes to the court by way of reference by the Criminal Cases Review Commission. 2. The appellant lived with her grandmother. The grandmother died overnight on 4/5 December 1996 at the age of 89. At the time no foul play was suspected. Subsequently, however, over a period of several years, evidence emerged that the appellant told three different people that she had smothered her grandmother. She was tried before Grigson J and a jury in July 2003. The case against her depended upon her confessions. She denied making one of them. The other two she admitted making but contended that they were false. The issue at trial was therefore whether such confessions as she had made could safely be relied upon as proof that she had indeed done what she had said she had done. The jury convicted her. 3. The appellant now seeks leave to adduce before this court the evidence of two experts as to her psychological profile and in particular the likelihood of her making false confessions. One expert, Professor Gudjonsson, is a non-medical psychologist of considerable experience whose particular area of interest is unreliable confessions. The other, Dr Johns, is a forensic psychiatrist. 4. Both a psychiatrist and a psychologist were consulted on behalf of the appellant prior to her trial. The experts consulted prior to trial specifically addressed the question whether the appellant was of such a nature as to be likely to make false confessions. That is hardly surprising, since plainly the principal issue which was going to arise at the trial was whether she might have done so. In the end, however, neither expert was relied upon at the trial. That was a considered decision. The appellant’s case, however, is that the evidence of the two new experts shows that the conviction is unsafe. It is said on her behalf that the evidence now available goes further than that which might have been called at the trial. 5. This court has power to receive evidence which was not adduced at the trial. The rules governing the exercise of the power are set out in section 23 of the Criminal Appeal Act 1968 and are very well known. The critical test is whether the receipt of the evidence is “necessary or expedient in the interests of justice.” As this court emphasised in Erskine [2009] EWCA Crim 1425 , that is a highly fact-specific question. 6. We thought it right to hear the evidence of Professor Gudjonsson and Dr Johns de bene esse. It was apparent that the evidence which they could give went somewhat beyond the expert evidence which was available at the time of the trial. Their evidence occupied approximately a day before us. We have heard also from Professor Grubin, who is a forensic psychiatrist, called on behalf of the Crown on the same basis. Outline history 7. Grandmother lived in a one-bedroom flat. For several months before she died, the defendant had been living there too. The defendant slept in the bedroom and Grandmother on the settee in the living room. Grandmother was 89 and frail. She had osteoporosis, arthritis and vascular disease and was very thin at 32 Kg. She was in some pain, taking a variety of medication, and sometimes complained that she should not be long for this world. But she was fairly doughty. Two days before her death she had had a chip pan fire in the flat; the policeman who visited had found that she had put it out herself with a damp towel and was cleaning up, rather annoyed with herself. Although there had been some smoke, the post mortem examination subsequently ruled out any contribution to her death from this accident. 8. Grandmother had a neighbour in a nearby flat called Mrs Ledingham. She had visited Grandmother that evening when the defendant was out, had given her some cigarettes and had parted upon Grandmother’s remark that she would see her in the morning. At about 0130 or 0200 on the morning of 5 December 1996 the defendant banged on Mrs Ledingham’s door and told her that she could not wake Grandmother up. Grandmother was dead. 9. At the time, the defendant’s account was that she had come home from the public house, had gone to bed at the same time as Grandmother at about 2230, both having taken sleeping pills, and that she had then been awakened at about 0130 by hearing Grandmother call her name. Pausing only to pull on a pair of jeans, she had gone into the living room but the lady was beyond rousing. 10. There was no sign of injury on Grandmother, but if she had been smothered with a pillow or cushion there was no reason why there should be. Nothing sinister was suspected by the authorities and cremation followed. 11. Nearly five years later, in October 2001, the defendant’s sister Carol reported to the police that the defendant had admitted smothering Grandmother. It turned out that by then there had been three (strictly four) occasions when the defendant was said to have made such admissions. In chronological order they were as follows. i) At a time which was not clearly proved, the defendant had told her mother that she had put a pillow over Grandmother’s face. The defendant had been on very bad terms with her mother since childhood, it may well be because Mother had been complicit in sexual or other abuse of the defendant by one of her partners. Mother was not called to give evidence at the trial. The confession to her was proved by the evidence of Carol (see (iv) below) and was admitted by the defendant to have been made. On the defendant’s evidence this occurred in October 1997. ii) A man called Kevin Donegan gave evidence that in August 2001 or thereabouts he had chanced to meet the defendant in a public house called the Railway. She was then the girlfriend of someone he knew, called ‘Lefty’, and he also knew her from childhood. He and she fell into conversation whilst Lefty was playing pool. The conversation turned to Grandmother, and eventually the defendant told him that the old lady had been poorly and had wanted to bring her life to an end. None of her family was prepared to help, but one night she, the defendant, had crept into the room whilst Grandmother slept and had held down a pillow over her face until she died. According to both Donegan and Carol, he had subsequently told Carol what the defendant had said. iii) On Monday 17 September 2001 the defendant’s sister Carol met the defendant in the Union Castle public house. Carol taxed the defendant with killing Grandmother. Initially the defendant denied it, but when pressed she admitted it. Her account was that she had put a pillow over Grandmother’s head, and that Grandmother had asked her to do it. iv) As a result of this, Carol arranged to meet the defendant again on Friday 21 September and this time equipped herself with a hidden tape recorder. A transcript of the conversation was before the jury. The defendant said that she had come home and made a pot of tea for herself and Grandmother as usual. Grandmother had been in jolly, but also reminiscent, mood and they had talked for some time. They both went to bed. Some time later, the defendant heard Grandmother call her name. She went in and Grandmother told her “I want to go” and asked her to help. She, the defendant, refused, saying that she would get ‘done for murder’. But Grandmother persisted and put a pillow over her own head. Said the defendant, she had reluctantly put her hand on the pillow. Grandmother had turned her face into the pillow and she, the defendant, had ‘finished it’. In this taped conversation, the defendant can be heard volunteering, on three different occasions, that she had also told her mother what she had done. 12. In due course, at her trial, the defendant admitted the confessions to Mother and Carol. But she denied that any conversation such as Donegan spoke of had ever taken place. She asserted that she would never have said such a thing to him, in particular because she did not like him because when a paperboy years beforehand he had fiddled her family’s paper money. 13. The defendant’s case is and was that she had been “hounded” over the years by other members of the family accusing her of killing Grandmother, and that gossip about this allegation was rife. Insofar as that depends on her unsupported assertion, as in many places it does, it needs to be treated with considerable caution. On any view she is an extremely unreliable historian. A reading of the careful chronology compiled by the CCRC confirms this in relation to many issues, and it is the proposition on which the whole of this appeal on her behalf is founded. But there is some other evidence which appears to demonstrate that there was such suspicion and that from time to time it was voiced. The first complaint, made by another half-sister Shirley in the course of a family row on the day after the death, seems not to have been an accusation of killing, but rather a complaint that the defendant (and indeed Carol) had neglected Grandmother. But there is objective evidence that this family was riven by a good deal of internecine strife, with fluctuating loyalties. Shirley gave evidence at trial that there had been such gossip and that the defendant had been aware of it. Carol’s own evidence was that confession number (iii), the first to her, was made in response to an accusation, and one which was pressed in the face of initial denial. Subsequently Carol has given a journalistic interview confirming that she entertained such suspicions from at any rate a few months after the death and had asked the defendant about them then. At trial, the defendant’s explanation for what she had said to Carol was that she was just telling her what she wanted to hear, in order to ‘get her off my back’. She added that she was “drunk, angry and disgusted” at the time. 14. That was not the defendant’s explanation for the confession to Mother. That one, she said, had been made because she hated her Mother as a result of childhood abuse, and wanted to see pain in her eyes. On her account, it had not achieved that impact and so she had then told her mother that it was not true anyway. 15. The defendant was arrested on 19 October 2001. Her interviews with the police are of some significance to the issues raised before us. She began by roundly refuting any suggestion that she had killed Grandmother. Asked about her mother, she readily said that she hated her, but far from telling the police that she had, for that reason, confessed falsely to killing Grandmother, she denied making any such confession, and with some indignation. The part of the interview containing this denial was not, so far as we can see, before the jury, no doubt because it depended on quotation from a statement made by mother whose evidence was not adduced at trial. The defendant went on to deny equally firmly that she had made the confessions to Donegan and to Carol; such a suggestion was, she said, ‘sick’ and ‘pathetic’. It was only after the taped conversation with Carol was read out in full and played over that she accepted that she had made that confession and also that she had told her mother that she had done it. There was, as we have shown, an assertion on the tape of having told mother this. She continued to deny the Donegan conversation, as she did at trial, but also to deny that she had made the earlier Monday confession ((iii) above) to Carol, which she was later to admit at trial. At one stage in the interview the policeman questioning her raised in very tactful terms the concept of ‘mercy killing’ and spoke in generalities about the possibility that the terminally ill might be ‘helped on their way’ by relatives. The defendant assertively refuted this possibility: “A: You are asking me if I put a pillow over her face and…. Q: Not out of spite but out of about helping her. A: ….and did it to help her. No I did not. I held her hand.” The defendant became upset. After a break of about two hours and the introduction of a solicitor on her behalf she went on to give a detailed and circumstantial account of Grandmother holding her hand and asking her to end the pain and misery which she was in, but of her refusing to do so. At that, she said that Grandmother had “turned onto her front, face into the pillow” and she had left her. She added that Grandmother had told her what she was going to do. She said that she, the defendant, was “scared and upset and did not want to be there.” Then, later, she had heard her name called, had gone back into the living room, and had been unable to rouse Grandmother. 16. The arrival of the solicitor was the result of the decision of the Inspector who reviewed her detention, who was concerned that the defendant ought to have advice. The custody record had noted from the outset that the defendant “suffers from depression and is taking medication for the same” and the sergeant had accordingly directed that, no doubt like others with a similar history, she should be under constant supervision and her cell door was left open. On arrival, she was offered a solicitor but declined. She was interviewed within the hour of arrival and the offer was repeated but again declined. Later in the afternoon, after she had become upset at the conclusion of the third interview, the inspector positively advised her to accept and she did so. She was examined by a doctor at the end of the afternoon and found to be fit for detention, and he advised that there should not be further questioning after she had received the valium which he prescribed. In the course of the interviews she described the interviewers more than once as having treated her “brilliantly” all day, and the transcript supports that description. In her evidence at trial she was to suggest that whilst they had been kind on tape they had been less so out of formal interview and overall had been “breaking her down” by their questions. Psychiatric and psychological evidence 17. This case was clearly prepared with care on behalf of the defendant. As part of it, the defendant was examined by both a forensic psychiatrist, Dr Bhattacherjee and by a forensic psychologist, Mr Wright. Dr Bhattacherjee was concerned first and foremost whether there was any mental illness or medical defence which ought to be raised, which there was not. But he investigated the defendant’s undoubtedly complex and at times sad social history and he addressed the issue of the confessions. He said this: “Given her vulnerabilities and difficulties coping, I think that Julie Kenyon is particularly susceptible to coercion in social situations. Given the significance of this aspect of her personality in relation to the current allegations I think that it would be appropriate to obtain formal psychological testing in this case. The object of this testing would be to formally assess her degree of suggestibility and susceptibility to coercion in social situations.” 18. The result was Mr Wright’s examination and testing of the defendant. Mr Wright was well aware of the research which has been done upon suggestibility and compliance, in particular by Professor Gudjonsson. Among the several different tests administered were the Gudjonsson scales for each of these two features. They are different concepts, although both may arise in relation to the issue of whether a false confession has been made. We borrow gratefully Professor Gudjonsson’s definitive analysis. Suggestibility is the tendency to believe what one is told and thus to assert, or accept, it. Compliance is the tendency to accept what is put to one, without believing it but to avoid confrontation or disagreement. Those two tests did not reveal the defendant to be either abnormally suggestible or abnormally compliant. She registered a single score which was out of the normal range, and that on a different test, the Eysenck Personality Questionnaire (EPQ-R). Here she scored abnormally highly for psychoticism. Mr Wright described the significance of this for her personality as follows: “According to Eysenck a person with an abnormally high score on the Psychoticism scale may be described as being solitary and not caring for people. They are often troublesome and not fitting in anywhere. They may be lacking in feeling and empathy and are regarded by others as insensitive. They are said to be hostile to others, even their own kith and kin, and aggressive even to loved ones. They have a liking for unusual things and a disregard for danger. They like to make fools of people and to upset them. According to Eysenck, socialisation is a concept which is relatively alien to high psychoticism scale scorers. Empathy, feelings of guilt and sensitivity to other people are said to be notions which are strange and unfamiliar to them. Eysenck suggests that the term ‘tough-minded’ is the most appropriate to use in describing high psychoticism scale scorers.” Overall Mr Wright concluded: “Personality assessment identifies Julie Kenyon as a very tough-minded individual.” Mr Wright additionally noted that the defendant presented as angry, irritable and somewhat suspicious. There was, he said, a strong possibility that this might reduce her susceptibility to suggestion and interrogative pressure. He did not, accordingly, wholly rule out the possibility that she might have made a false confession to Carol as a result of internal psychological factors evident at the time but less evident at his examination. 19. Neither expert was called at the trial. This was clearly a deliberate decision made by the defendant on careful legal advice. The CCRC recognises that the decision was a wholly reasonable one. We agree and would go further. Whilst the evidence of Dr Bhattacherjee and Mr Wright, if given, would have left open the possibility of a false confession owing to a susceptibility to suggestibility or compliance, overall their evidence would not have supported it. Neither tendency could be shown to exist. On the contrary, she was predominantly hostile rather than accepting. Neither tendency, if it were assumed nonetheless to exist, could explain the confession to mother. The overall assessment of the defendant’s personality was such as to fit the Crown case that she had indeed killed Grandmother. Moreover, the history, as elicited by both experts and more generally, would have been open for examination and this would have been likely to be distinctly disadvantageous to the defendant because of the number of occasions on which it would show that she had advanced untruthful assertions not by way of confession but by way of exculpation. If the reports had been relied upon, the defendant would have had to submit to further examination by other experts instructed by the Crown, and their conclusions might be anticipated to emphasise the indications which contradicted suggestibility or compliance. The defendant was undoubtedly better served by asserting that the confessions were false for the two different reasons she gave, but without expert analysis. The new psychological and psychiatric evidence 20. Professor Gudjonsson and Dr Johns have undertaken the most detailed further examinations of the defendant. Professor Gudjonsson has additionally drawn on interviews with others who know her. Dr Johns has examined her GP records more fully than was previously done. The gravamen of the evidence now advanced on her behalf is twofold: i) the defendant’s personality is disordered; this is a permanent characteristic and by itself tends to suggest the real possibility that she might be prone to making false confessions; this approach to her analysis was not sufficiently explored at the time of the trial; and ii) the assessment of suggestibility and/or compliance is now significantly different from that returned by Mr Wright’s tests at the time and indicates an elevated tendency to make false confessions. 21. We accept that the analysis of the defendant’s personality disorder is significantly fuller than was made at the time of trial. The diagnosis is of emotionally unstable personality disorder with perhaps additional features of schizoid disorder. That has been referred back to Dr Bhattacherjee and Mr Wright, who do not disagree and nor does Professor Grubin. All agree that a personality disorder is essentially a persisting condition and, absent trauma or similar, is unlikely to have changed over a few years in adulthood, so that her personality was basically at the time of these events what it is now. Dr Johns identified for us some of the background social factors: an abusive childhood with a collusive mother, inconsistent parenting, consequent difficulty in establishing relationships, losses and estrangements in adulthood, drink and drugs dependency and low self esteem. We think that we should accept as a general proposition that personality disorders of this kind increase the statistical risk that the subject may make false confessions. The exact mechanisms by which that may occur are perhaps not crucial, but we accept that they might include a desire for self-importance or notoriety, a wish to wound, or an aim to tell people what they want to hear. We also accept that there is some evidence of the defendant, as a child thirty years ago, taking the blame for misdeeds which younger siblings had committed. 22. That said, the defendant’s personality disorder does not necessarily mean that she will make false confessions. Her personality has to be considered in its entirety. Both Dr Johns and Professor Gudjonsson agreed that the description of it which was set out by Mr Wright, and which we have quoted at paragraph 18 above is accurate, save that Dr Johns says that ‘impaired empathy’ is a better description than ‘tough-minded’. If giving evidence at any trial of the defendant each would tell the jury that those are essentially features of her personality. The defendant’s assessments in prison are wholly consistent with these personality traits. She has a history of bullying and is described in the psychological assessments as ‘over-assertive’. At her annual review in August 2005 she was particular in detailed refutation of a minor detail in what had been recorded as her history and she described herself as having ‘this pent up hate’. As Professor Gudjonsson told us, the same personality disorder which gives rise to an increased risk of false confessions also produces an increased risk of aggression, of callousness and of violence, all of which make the defendant vulnerable to a sudden loss of temper in the course of which she may have smothered her Grandmother. It is also characterised by a much increased risk of lying in her own interest. The experts made it clear that they would have to agree that whilst there was a greater risk of false confession than there would be in an undamaged personality, an alternative explanation of events was that the confessions had been true and the defendant was now lying in an effort to avoid the consequences. Sadly, the tendency to lie to protect herself was only too clearly revealed by the evidence in the case, not least by her determined assertions to the police that she had not made the confessions to Carol and Mother until the contrary was conclusively proved by the production of the tape. A similar tendency to lie may well have been inferred by the jury from the defendant’s evidence about the removal of a ring from Grandmother’s finger, which she asserted had been open and above board either because a policeman had done it or because the neighbour Mrs Ledingham had. The two assertions were mutually contradictory and the latter, on which the defendant relied at the trial, was refuted by Mrs Ledingham, whom the defendant in consequence accused of lying, although it is difficult to see what possible motive she could have for denying it if it had occurred. 23. We accept that the measurements made by Professor Gudjonsson of suggestibility and compliance are higher than those made by Mr Wright. Whether the passage of time has anything to do with that we cannot know, but we think we ought to assume that this may not be so and that it is possible that Mr Wright’s tests were affected by the anger she was then manifesting. We have some misgivings about the technique of interviewing other people as closely connected with the facts of the case as Carol, Shirley and a third lady, Janice Jaggers, with a view to assessing either tendency. We readily understand that Professor Gudjonsson’s object was to avoid being wholly dependent on the defendant’s self-reporting, but the difficulty is that none of the informants was really a disinterested observer. Shirley, who is a strong supporter of the defendant, gave an assessment of suggestibility and compliance which is wholly contradictory of that of Carol, whose stance is likely to be very different. Moreover, Professor Gudjonsson unsurprisingly attached a good deal of significance to Shirley’s report to him of what she now says the defendant told her of her conversation with Carol immediately after the confession had been made, namely that she had ‘told them what they wanted to hear; I’ve told them I killed my Nana’. There is some difficulty about that assertion of Shirley’s, however, because in evidence at trial she said very clearly that her only knowledge of any accusation made by Carol (or anyone else) to the defendant was that a landlord had told her (Shirley) that Carol had been ejected from the public house for making such. If she had been able to say that the defendant had come away from her conversation with Carol saying what she now says, it is difficult to see how she could have given that evidence. Similarly, Professor Gudjonsson’s assessment of suggestibility is founded in substantial part (though not exclusively) on Shirley’s recent assertion to him that the defendant had telephoned her as many as 5-6 times per week in distress at harassing accusations from the family and had said to her “Well, perhaps I have killed her, but how did I do it ?” Of course if this were reliable evidence, it would point towards suggestibility, towards the defendant beginning to believe what she was accused of. But this evidence is flatly contradicted by what Shirley said at the trial. There she was asked directly, in chief on behalf of the defendant, whether she had ever asked the defendant if there was any truth in the rumours and she answered that she had, and that the defendant had looked her straight in the face and said no. The truth is that, apart from this highly unreliable recent assertion from Shirley, there is not the slightest sign anywhere in the enormous volume of material assembled either now or at trial of the defendant coming anywhere near falsely believing that she had killed Grandmother. All the indications are against the operation of any element of suggestibility, whatever may be her theoretical susceptibility to that process. Mr Dunkels QC understandably put her case substantially upon compliance, rather than upon suggestibility. 24. As to compliance, the defendant faces equal difficulty. On her case she had been hounded for five years before she succumbed to making any confession save that made to mother, which was for revenge not the result of any accusation. If that is so, she had been resistant to constant accusations for years. We recognise the very real possibility that her account of the accusations is exaggerated, and we are sure that we should accept the proposition that to say that a person exhibits compliance does not mean that she will cave in at the first opportunity. But this defendant’s compliance was put to an acid test, and on this very topic, by her police interviews. Unsupported by either solicitor (until the last session) or appropriate adult, she was interviewed for several hours. She was confronted with the statements of her accusers, including mother, Donegan and Carol. The suggestion that she had killed Grandmother was distinctly put. She stoutly denied it and refuted what others were saying with some spirit. No-one reading the interviews could mistake her assertiveness on this topic. The delicate suggestion of mercy killing would, for a compliant person, have offered a simple and excusable way out. Even that did not occasion any hint of admission. We agree that it occasioned a shift, but the only shift was to an exculpatory account that Grandmother had been wanting to put an end to her life and, by implication, that she must have done it unaided when the defendant refused to help. That exculpatory account, in effect that it must have been self-suffocation, was directly and compellingly refuted by the pathological evidence served in advance of the trial. It was abandoned at the trial by the defendant who admitted that the story of Grandmother holding her hand and asking to be helped out of her misery was a deliberate lie, and who reverted to the account that she had gone to bed unsuspecting of anything amiss and had been awakened in the night by the calling of her name. In her evidence the defendant was asked why she had told these lies, but she had no explanation at all to offer. This lie is likely to have been a significant factor in her conviction; despite the interviewer’s suggestion of mercy killing it was not a lie by way of false admission, nor any kind of compliance, but a lie by way of untruthful self-exculpation. 25. Mr Dunkels contended that the new expert evidence provides a basis on which the confessions to both Carol and Mother could be excluded pursuant to either section 76 or section 78 of the Police and Criminal Evidence Act 1984 . We agree that a case could be mounted for the exclusion of the confession to Carol on the basis that it may have been obtained in consequence of something said which might make it unreliable, viz if the defendant were correct, a long period of harassing accusations. We do not agree that the confession to Mother would be likely to be excluded because the defendant’s admission that it was made appeared in the taped conversation with Carol. The topic was raised entirely by the defendant. There was no hint of any suggestion to her that she had confessed to Mother; she volunteered it. In those circumstances the admission to the confession was not arguably the result of anything said which was likely to render it unreliable. Indeed, in the face of clear evidence of confessions to Mother and Donegan we do not think that there would have been a proper basis for excluding the evidence of the confession to Carol. As to section 78 , the suggestion is that there might have been a basis for asserting a breach of Code C (in particular note 1G and paragraph C 3.15) in not introducing an appropriate adult. That would involve saying that the defendant’s mental vulnerability was such that she might not understand the significance of what was said. Knowledge that she was prone to depression and was taking medication by no means necessarily carries that implication. She had vigorously declined two separate offers of a solicitor. However, even if there were a case for alleging an inadvertent infringement of the Code, the question which would arise would be the fairness to the proceedings of admission of the interviews in evidence. In the circumstances of this case we have no doubt that if compliance were the issue, the fairness of the proceedings generally required the jury to be in a position to judge whether the defendant had shown compliance or resistance in the course of quite long interviews, the first three without attendance and the last with a solicitor. 26. No doubt it is true that there remains some evidence which could support a case mounted for the defendant on the basis of a personality which might increase the risk of a false confession. But it is plain that the exploration of this suggestion would entail opening up for the jury’s consideration several matters which were only likely to damage her case. We have little doubt that that price was recognised by those advising her at the time of her trial and that that was part of the reason for her decision not to proceed on the basis of expert analysis of personality. Had there been called the evidence which is now suggested, and equally if there were now another trial at which it were called, the following consequences, at least, would ensue. i) Professor Gudjonsson and Dr Johns would give evidence that her overall personality traits, whilst indicating the risk of false confession, are also consistent with both guilt and lying to avoid it. The description of her personality would be much more likely to reinforce the conclusion that she is guilty than to lead to the opposite result. ii) The jury would have to know, which the trial jury did not, that not only had she denied the confession to Carol and subsequently admitted it, but that the same was true of the confession to Mother. iii) The defendant’s whole history would be open for examination in order to assess the likelihood of false confession owing to personality, or the alternative pattern of behaviour involving offending (often aggressive and violent) followed by lies to exculpate herself. It is clear that whatever may be the understandable social deprivations which made her what she is, the preponderance of evidential material demonstrates her to be both aggressive and untruthful in her own interests rather than prone to make false confessions. iv) That history would be very likely to include the introduction of the fact that her first child, a girl, had died at the age of 5 months in 1977 and her account of it. That was that she had left the child face up on the settee and then had returned to the room to find that she had turned over and was lying on her plastic-backed bib. According to the defendant she had turned the child over, whereupon she had breathed twice but then expired. This was excluded from the evidence at trial at the defence request, although it was potentially relevant at two points. First, Donegan had said that in the course of his conversation with her the defendant had told him that she had gone to prison over the death of the child, whereas she had not. Second, the defendant had concluded her taped conversation with Carol by saying that although she had killed Grandmother, she had not killed the baby. The first would be relevant to the defence contention that she made an incorrect statement potentially damaging to herself, although not an admission of guilt. The second would be relevant to the Crown’s contention that she was able to decide between an admission she was prepared to make and one she was not. If close analysis of her personality were in issue, this aspect of the case could not be shut out. The defendant would be likely to give an account of the event, and thus the evidence about it would be open for examination. Quite apart from the similarity of the defendant coming upon someone who had suffocated and the fact that her account was, at the least, open to question, there was also evidence of inconsistent assertions by her as to whether she was alone or accompanied at the time. There might have been a risk of it also emerging that this had occurred at a time when the defendant and her then partner (not the child’s father) were, on his account, at odds because he suspected her of infidelity, and when she had recently told him that if he did not return to her she would harm herself. v) The defendant’s history would also be likely to open up for examination an incident in 1985 when she was convicted of arson and did go to prison for 9 months. Although at the time she admitted to the probation officer that she had started a fire in order to claim benefit money for a replacement carpet or furniture, she has also said that her then five year old son David started the fire and, to Dr Bhattacherjee and Mr Wright, that she admitted it because the police told her that if she did not, he would be taken into care. That might superficially look like support for a tendency to make false confessions, but it would expose her to the evidence that David had already been taken into care on twelve occasions and that the social workers were very worried that he appeared to have had a number of suspected non-accidental injuries and to be treated badly by his mother, described as ‘volatile’ and ‘explosive’. Meanwhile the defendant’s account to Dr Johns, whilst it attributed the fire to the boy, involved a different explanation for her admission, namely that she had hated being in the police station with men. vi) There would be a number of other examples of inconsistent and apparently deliberately untruthful statements made over the years by the defendant when she was accused of wrongdoing. They would have been likely to include an incident of theft of a purse where the defendant has given the wholly inconsistent accounts that it was mistaken identity and that she only took back what was hers and an assault on a sister (Lynne) where she has said to different people that it was someone else and that it was herself in self defence. Those are only some of a number of illustrations of her tendency not to make false confessions but to make false denials of guilt. 27. We are quite satisfied that the new expert evidence, whilst it adds detail and some fresh assessment to the expert evidence available at trial, would in the end not assist the defendant in contesting this charge and that it would not have been in her best interests to adduce it, nor would it be now. In those circumstances it is not either necessary or expedient in the interests of justice to admit the evidence. We reach that conclusion without it being necessary to bring into the equation the important factor, emphasised in Erskine (see paragraphs 39 and 82) and in many other cases, that the interests of justice lie in there being a single trial at which the defendant and the Crown each presents the whole of its case. It is apt to subvert the process of justice if it is open to a defendant to rely on appeal on something which could have been relied upon at trial, but which he chose not to adduce. In Erskine the court was concerned with the defendant who seeks to advance a new and inconsistent defence on appeal (diminished responsibility when previously he had denied carrying out the killing). A fortiori the same applies, and potentially with added force, to the case of the defendant who seeks to advance the same defence as was advanced at trial but relying on the expansion of a strand of evidence which was deliberately not adduced there. We pause only to record that we do not accept Mr Dunkels’ submission that it is enough that the balance of the decision whether to rely on it or not has shifted in the light of differently expressed or improved evidence in support of the relevant strand. There has to be fresh evidence which is strong enough to justify the conclusion that it is necessary or expedient in the interests of justice to override the interests which justice has in a single trial. In this case it is abundantly clear that the strand of evidence was not adduced because it would be likely to do the defendant more harm than good, and still would. The evidence now proffered would not be likely to afford grounds for quashing the conviction. Accordingly we decline to admit it and the appeal must be dismissed.

```yaml citation: '[2010] EWCA Crim 914' date: '2010-05-11' judges: - LORD JUSTICE HUGHES - MR JUSTICE LLOYD JONES ```

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No: 2008/4126/D3 Neutral Citation Number: [2009] EWCA Crim 2031 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 5 October 2009 B e f o r e : LORD JUSTICE KEENE MR JUSTICE BLAIR HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - R E G I N A v NAJIBULLAH AHMADZAI - - - - - - - - - - - - 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 Mr T Badenoch appeared on behalf of the Crown - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: The appellant, who is now aged 25, appeals against his conviction on a count of sexual activity with a male child. He was convicted of that offence on 25th June 2008 at Snaresbrook Crown Court after a trial before His Honour Judge Pardoe QC. He was later sentenced to imprisonment for public protection with a minimum specified of three-and-a-half years, less time spent on remand. 2. The offence in question formed count 1 on the indictment. It alleged that he had penetrated with his penis the anus of a 15-year-old boy, whom we shall call ST, not reasonably believing him to be the age of 16 or over. 3. There were three other counts on the indictment. Count 2 charged him with a similar offence against ST but on another occasion. He was acquitted on this charge, as he was on count 3 which charged him with inciting ST's younger brother, AT, aged 13, to engage in sexual activity not reasonably believing that he was 16 or over. Finally, count 4 was one which was not left to the jury. It alleged sexual assault on a female. 4. Counts 1 to 3 all arose out of alleged events at an internet café and phone shop in Stamford Hill, London, owned by the appellant's brother. It was opened, after some conversion works, on 13th July 2006 and the appellant worked there. 5. The two complainants were members of the Orthodox Jewish community and they and their father were customers of the shop. The three charges left to the jury related to three separate occasions and it was not alleged that AT had been present on either of the occasions giving rise to counts 1 and 2, or that ST had been present when the offence covered by count 3 had taken place. 6. Put very briefly, ST's evidence on count 1 was that he had been using the internet in the shop when the appellant had persuaded him to come into the back of the shop. There the appellant had taken his own trousers down and told ST to do the same. Then the appellant had buggered him. ST was somewhat vague in his evidence about the date of this. He said that it had been "about a year" before he had been interviewed on video by the police in September 2007, but he also said he thought it was "around Passover", which would have made it around April of 2007 or, conceivably, 2006. There was evidence that when he had first mentioned this incident to a police officer he had only referred to the appellant making him give the appellant a "blow job", as it was described. 7. It seems that he did not initially mention the incident which formed the basis of count 2. Again, ST was unclear about when that latter incident had occurred, but it had been in the evening and the appellant had, he said, wanted them to go out into the garden area behind the shop because there were now CCTV cameras in the shop itself. It was raining. In the garden, said ST, the appellant had got him to suck the appellant's penis and the appellant had then had anal intercourse with him. 8. Count 3 was based on AT's evidence that in August 2007 the appellant had invited him to masturbate, to watch pornography and to suck his penis, but that he (AT) had run out of the shop. There were a number of discrepancies in AT's evidence and other evidence about this alleged incident. The appellant for his part denied that any of the alleged offences had taken place. 9. There was a note from the jury after their retirement which asked whether, if the events had taken place, it was to be assumed that the defendant thought ST to be under the age of consent. The note referred specifically to the wording of counts 1 and 2 where it was quite properly alleged as an ingredient of the offence that the defendant did not reasonably believe that ST was aged 16 or over. The judge had in his summing-up directed the jury that they had to be sure of that ingredient as well as the others if they were to convict. After a lengthy discussion with counsel, the judge directed the jury in response to the note that they had to be sure that the defendant had no reasonable belief that ST was 16 or over before they could convict on either count 1 or count 2, but that on this they could draw proper inferences from the evidence such as ST's appearance. 10. No criticism is now made of that direction or indeed of any of the directions given by the judge in the course of his summing-up. The principal issue in this appeal is whether the conviction on count 1 is unsafe because of the acquittals, particularly the acquittal on count 2 which involved the same complainant. This alleged inconsistency of verdicts was what persuaded the single judge to grant leave. 11. Mr Doyle QC on behalf of the appellant in succinct and attractive submissions argues that there was no evidence that the appearance of ST had changed materially between the two incidents and that the preponderance of the evidence was that the two counts were separated by weeks or just months. Consequently, there is no basis for explaining away the combination of verdicts on the footing that the jury may have thought that the appellant believed the complainant to be 16 or over by the time of the second occasion. Both charges, he emphasises, turned on the credibility of this complainant ST. The acquittal on count 2 fatally undermined ST's credibility because the central issue was whether any sexual activity had occurred at all and the description of the sexual activity in each case was in essence the same. Given the appellant's denial that any sexual activity had occurred, it is difficult, submits Mr Doyle, to understand how on the evidence the jury could be sure that it had occurred on the first occasion but not on the second. There were, says Mr Doyle, other pieces of evidence undermining ST's credibility. No reasonable jury properly applying their minds to the evidence could have arrived at the differing verdicts which are either logically inconsistent or irrational. The case, it is said, has an unhappy ring to it. 12. We say straightaway that we do not find these arguments persuasive, despite the very beguiling way in which Mr Doyle has advanced them this morning. The test for when verdicts returned on the same occasion are unsafe because of inconsistency with other verdicts is well-established. It is normally necessary for an appellant to show not merely that the combination of verdicts is surprising but that there is a logical inconsistency between them. That, as this court said in the case of Bell , decided 15th May 1997 and summarised in Archbold News issue 6 at page 2, is an essential prerequisite for success on this ground. The court there emphasised quite rightly that jurors are specifically directed to give separate consideration to each count, as happened here. 13. In the case of G [1998] Crim.L.R 483, this court commended that analysis in Bell and said that it remained applicable where a complainant's credibility was in issue, where there was no corroboration and where the jury accepted some part of the allegations but did not seem to do so on other matters. That situation, said the court, gives rise to no logical inconsistency because a person's credibility is not "a seamless robe". So a jury might properly take a different view of the reliability and credibility of a complainant's evidence on different counts. 14. We entirely agree with that approach. It is one which underlies the earlier and well-known case of Durante 56 Cr.App.R 708 which was a case where it was logically inconsistent of the jury to convict the appellant of handling a stolen cheque and yet to acquit on the offence of endeavouring to obtain money on the same cheque a few minutes later, when the only issue on both counts at trial was whether he was too drunk to have the necessary intent. So the combination of verdicts there was logically inconsistent. The court also put the test there in terms of Wednesbury irrationality. 15. But we would also refer to the decision in WM , decided on 30th March 1999 and referred to at [1999] 6 Archbold News 3, a case referred to and quoted from extensively in the decision of this court in Chohan [2007] EWCA Crim. 3175. We refer to that because in WM the judgment was given by the then Lord Chief Justice, Lord Bingham of Cornhill. Amongst other things he said this: "... it would be anomalous that a jury, directed that the facts were for them, that they should consider the charges separately without any obligation to decide all the counts in relation to each complainant the same way, and that they should not convict unless they were quite sure, should then be held to have returned irrational or logically inconsistent verdicts because they took the judge's direction at its face value and gave effect to it. The cases to which we have referred in our view make quite plain the proper approach. In a case other than the Cilgram type of case (which is in a class of its own), it is ordinarily for an appellant to show a logical inconsistency between the verdicts criticised and then to demonstrate that it is not possible to postulate a legitimate chain of reasoning which could explain the apparent inconsistency. The court will not interfere with the verdict of the jury unless those tests are satisfied." 16. That then is the law, which reflects the fact that this court has not heard the witnesses and is in no position to know why the jury reached the verdicts which they did. Applying those legal principles, we can see no logical inconsistency in the verdicts here. The judge had given the jury the usual direction about considering each count separately and had gone on to add, "Your verdict need not be the same". He emphasised that again a few minutes later in his summing-up. He never suggested that counts 1 and 2 stood or fell together, nor could he properly have done so. 17. These two counts related to two separate occasions. The alleged offences took place in somewhat different circumstances - the first in the back of the shop itself; the second in the garden area because, it was said, by then CCTV had been installed. When he was cross-examined about the second incident, ST was very vague. He could not remember whether it had been raining or indeed even if the appellant had taken him into the garden where it had been raining, nor could he explain why on this occasion he had not left when the appellant had spoken about going to the back, save to say that he "was okay with it". It is clear that a certain amount of progress was made in the cross-examination of him on the second count. 18. The jury may have felt insufficiently sure about this count and, if so, they were, in our view, entitled to so conclude while being satisfied on count 1. We do not know what conclusion they reached on the timing of these two incidents, but it is also possible that they took the view that they were sufficiently separated in time for there to be a doubt on the second occasion as to the appellant's lack of reasonable belief that ST was 16. But we do not seek to look for some explanation as to how the verdicts were arrived at because there is no logical inconsistency in the verdicts. It may be surprising that the appellant was convicted on count 1, but acquitted on count 2, but that is not enough to render the verdict of conviction unsafe. We do not know on what basis of reasoning the jury reached those verdicts. We cannot say that no reasonable jury could have reached them. It follows that this conviction on count 1 is safe and the appeal therefore must be dismissed.

```yaml citation: '[2009] EWCA Crim 2031' date: '2009-10-05' judges: - LORD JUSTICE KEENE - MR JUSTICE BLAIR - HIS HONOUR JUDGE ROGERS QC ```

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Neutral Citation Number: [2018] EWCA Crim 1467 Case No: 201800262/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 8 June 2018 B e f o r e : LORD JUSTICE GROSS MR JUSTICE WILLIAM DAVIS MR JUSTICE JULIAN KNOWLES - - - - - - - - - - - - - - - - R E G I N A v PETER TYLER MASCARENAS - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - Ms C McElvogue appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T 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 JUSTICE WILLIAM DAVIS: 1. Peter Tyler Mascarenas is now aged 32. 2. On 30 June 2016, in the Crown Court at Snaresbrook, he pleaded guilty to an offence of dangerous driving. He was not sentenced until 12 December 2017. On that occasion he was sentenced to a period of 8 months' imprisonment, it was ordered to run concurrently to another sentence he by then was serving. No issue is taken with the period of imprisonment. The sentence he was already serving was one of six-and-a-half years for being concerned in the supply of cocaine, a sentence imposed at another court on 4 August 2017. The appellant was disqualified from holding or obtaining a driving licence for 5 years and 6 months and until an extended re-test was passed. It is that period of disqualification which is the subject of this appeal, the appeal against sentence being with the leave of the single judge. 3. The nature of the driving was as follows. It occurred in the middle of the evening on 12 May 2016. The appellant was driving a Mercedes in Hertfordshire. He had as passengers his partner and his two young children. There came a point when the police tried to stop his vehicle, since they wished to speak to him. When the appellant realised that the police wished to speak to him he drove off at high speed. There was a police chase for about 5 minutes through country lanes at speeds of around 80 miles per hour. 4. The appellant drove with a complete disregard for pedestrians or other traffic. Not only was there great risk to the lives of others unassociated with him but to his young family. After about 5 minutes the appellant was in a line of stationary traffic in a nearby village which gave the police the opportunity to detain him. 5. He made no comment when he was interviewed. There is in reality no explanation at all for this piece of driving. 6. Having imposed the concurrent prison term, the judge said this about disqualification: "More importantly is the ban which has to be imposed for dangerous driving and the ban I am going to pass takes account under a particular section which is section 147(b) of the Powers of Criminal Courts (Sentencing) Act 2000 and so the total ban is going to be one of five-and-a-half years, all right? That relates back to 30 June when an interim ban was imposed, sorry 30 June 2016, five-and-a-half years from then takes us through to the end of 2021. You will not be released until November 2020 so there is a further ban of about a year effectively when you are not in custody." 7. The judge fell into error when he referred to section 147B of the Powers of Criminal Courts (Sentencing) Act 2000. That section relates to a person disqualified for holding or obtaining a driving licence under either section 146 or section 147 of the 2000 Act. This defendant, having been convicted of dangerous driving, was subject to an obligatory minimum disqualification of 12 months. He fell to be disqualified under section 34 of the Road Traffic Offenders Act 1988. However, that error was and is of no practical effect. 8. Section 147B of the 2000 Act is a section intended to allow a court to have regard to the fact that a defendant is subject to a custodial sentence which would have the consequence of diminishing or removing the effect of any disqualification as a punishment were it to be imposed in the ordinary way. That provision is mirrored by section 35B of the Road Traffic Offenders Act 1988. This is the like provision in relation to disqualifications under section 34 of the Road Traffic Offenders Act. 9. The application of section 35B was considered in detail in this court in R v Needham & Ors [2016] EWCA Crim 455 , at paragraph 25 and onwards. It is not necessary for us to rehearse the detailed analysis of this court as set out in Needham . It suffices simply to refer briefly to some parts of the judgment, first at paragraph 26: "This section [that is a reference to section 35B] does not use the mechanism of a discretionary period and an extension period of disqualification as section 35A does... Instead, where this section applies, the effect of subsections (2) and (3) is that in determining the length of disqualification, the court 'must have regard … if and to the extent that it is appropriate to do so' to the diminished effect of disqualification as a distinct punishment on a person who is also detained pursuant to a custodial sentence. Clearly then, where this section is engaged the phrase 'must have regard', cited above, appears to give a greater degree of latitude to the sentencer in fixing the term of disqualification than that which is achieved by the extension period mechanism under section 35A." 10. It is unnecessary for us to discuss the provisions of section 35A and their effect. They are complicated and fully explained in Needham . 11. Going on, the court discussed the applicability of section 35B saying this at paragraph 28D: "... there will be some cases where at the time of sentencing for an offence attracting disqualification the offender will already be serving a previously imposed custodial sentence. That situation has not been explored in detail before us, but it is clear that section 35B applies." It follows that this is the very situation with which we are dealing. 12. Finally, we refer to paragraph 29 in Needham : "It is to be noted that that approach will not apply in some cases. In section 35B Parliament in using the phrases 'must have regard' and 'if and to the extent that it is appropriate' has clearly entrusted some measure of discretion to the court as to whether to adjust the disqualification under the section to any extent or at all. In a case where a very lengthy custodial sentence is to be served for 'another offence' which is not motoring related, it might be anomalous or run counter to considerations of rehabilitation to impose an extremely long period of disqualification under section 35B in order that a comparatively short period of disqualification should take place after release from custody. Examples might include a motoring offence combined with a non-motoring related homicide attracting a life sentence with a long minimum term, or a case involving a very long extended sentence passed for sexual offending." 13. Applying those principles to this case, we see nothing wrong at all in the judge taking advantage of the provisions of section 35B in order to ensure that the punitive effect of disqualification had some real effect on this appellant. Although the judge referred to Section 147B of the 2000 Act, the provisions of sections 147B and 35B are identical and it is appropriate to substitute a disqualification under Section 35B of the 1998 Act for the disqualification pursuant to the 2000 Act. The intended effect of the sentence imposed, as the judge made clear, was that for a little over a year after his release from his long custodial sentence for the drugs offence the appellant would be subject to disqualification. 14. Unfortunately the intention of the judge was not put into effect by the sentence he in fact imposed. He fell into error in two respects. First, any order for disqualification takes effect from the day on which it was imposed. Thus, orders for disqualification cannot be ordered to run consecutively ( R v Meese (1973) 57 Cr.App.R. 568) nor can an order for disqualification be postponed or backdated. Second, he assumed that the interim disqualification imposed on 30 June 2016 when the appellant pleaded guilty to the offence of dangerous driving was still in force and that the appellant had been subject to this disqualification for a period of around 18 months. This assumption was incorrect. We understand why he made that assumption. No-one in the court below disabused him of this notion. Until a late stage of the hearing of the appeal we shared the assumption. If it had not been for the intervention of Mr Simon Heptonstall of the Crown Prosecution Service who by chance was observing the court’s business, we would have dealt with the appeal on a false basis. We are very grateful to him for his assistance. 15. The power to impose interim disqualification for holding or obtaining a driving licence is provided by Section 26 of the 1988 Act. Section 26(2) gives a court that power which is available to be exercised when deferring or adjourning sentence. Section 26(4) is in these terms: Subject to subsection (5) below, an order under this section shall cease to have effect at the end of the period of six months beginning with the day on which it is made, if it has not ceased to have effect before that time. Section 26(5) applies only to Scotland. Therefore, in this jurisdiction no interim disqualification can be longer than six months. On the facts of this case the interim disqualification expired on 30 December 206. 16. The way in which any period of interim disqualification is to be taken into account at a final sentencing hearing is set out in Section 26(12) which is as follows: Where on any occasion a court deals with an offender— (a)for an offence in respect of which an order was made under this section, or (b)for two or more offences in respect of any of which such an order was made, any period of disqualification which is on that occasion imposed under section 34 or 35 of this Act shall be treated as reduced by any period during which he was disqualified by reason only of an order made under this section in respect of any of those offences. Had the judge appreciated the statutory position at the time of sentencing in this case, he would have determined the appropriate period of disqualification pursuant to Section 34 of the 1988 Act. That period then would have been treated as reduced by six months. The judge then would have considered the effect of the lengthy custodial sentence to which the appellant was subject on the punitive effect of any disqualification by reference to the discretionary power in Section 35B of the 1988 Act. The judge clearly intended that the appellant should be disqualified for around 12 months after his release on licence from the lengthy sentence. He believed that this was the effect of the sentence he imposed. 17. We are satisfied that this was not the effect of the sentence. The period of disqualification commenced at the date of the order, namely 12 December 2017. Pursuant to Section 26(12) of the 1988 Act the period of disqualification was to be treated as reduced by six months. The period of 5 years and six months thus was to be treated as a period of 5 years commencing on 12 December 2017. That means that the appellant under the terms of the order made by the judge would be disqualified until December 2022. This was not the judge’s intention. He considered that the appellant’s disqualification should remain in force for around 12 months after his release from custody in November 2020 i.e. until around November 2021. 18. Although the appellant was a man with no driving record we are satisfied that a period of disqualification longer the statutory minimum period of 12 months was justified. Since the judge believed that the appellant had been disqualified from 30 June 2016 until the date of sentence, it may be that he considered that a period of a little in excess of 2 years was justified. However, the only clear indication we have of his intention is his reference to an effective period of “about a year” after release from custody. We propose to give effect to that intention. We do so by quashing the disqualification of 5 years 6 months imposed under Section 147B of the 2000 Act and substituting for it a period of 4 years 6 months pursuant to Section 35B of the 1988 Act. That period of disqualification runs from 12 December 2017. Due to the operation of Section 26(12) of the 1988 Act the period will be treated as being reduced by six months to take account of the period of interim disqualification. That means that the period of disqualification will expire on 12 December 2021. The appellant remains subject to the requirement to take an extended driving test before driving again. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

```yaml citation: '[2018] EWCA Crim 1467' date: '2018-06-08' judges: - LORD JUSTICE GROSS - MR JUSTICE WILLIAM DAVIS - MR JUSTICE JULIAN KNOWLES ```

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No: 201800693 A4 Neutral Citation Number: [2018] EWCA Crim 1335 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 28 March 2018 B e f o r e : LORD JUSTICE SIMON MR JUSTICE GOSS HER HONOUR JUDGE TAYTON 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 JAMES ZAMMUTT-COOK - - - - - - - - - - - - - - - - - Mr G Hughes appeared on behalf of the Attorney General Mr F Schofield appeared on behalf of the Offender - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. LORD JUSTICE SIMON: 1. This is the Solicitor General's application to refer sentences passed at the Crown Court sitting at Chelmsford on 19th January 2018 under section 36 of the Criminal Justice Act 1988 as being unduly lenient. The sentences were terms of 29 months' imprisonment passed on the offender, James Zammutt-Cook, now aged 37, by Her Honour Judge Lynch QC in respect of three counts of separate dwelling-house burglary committed on 17th and 27th September and 18th October 2017. 2. On 17th September 2017 the owner of a dwelling called Soham Lodge in Thetford (Mark Rose) attended the property, which was a substantial unoccupied dwelling set in 15 acres of land which was in the course of being renovated, with his wife in order to feed their sheep and take their dog for a walk. As they approached the property they could hear running water from inside. On entering they could see water flowing down the stairs and through the ceilings. There was a smashed pane of glass in one of the downstairs windows and another window was open, through which entry appeared to have been gained. A number of items had been moved or uncovered, but nothing had been taken. However, throughout the property most of the copper piping and radiators had been cut away from the walls. All the piping had been stacked outside the rooms but had not been taken. It was this that had caused substantial water damage to the ceilings. The cost of repairing the damage was not known at the time of sentence. A blue hooded top was found which was seized and analysed. Cellular material found on it had a DNA profile which matched the offender's. 3. At approximately 10 am on 27th September, the occupier of a dwelling known as Dandelion Cottage in Wickham St. Paul near Halstead in Essex (Mr Henderson) was at home and in bed. He works night shifts as a heavy goods vehicle driver. He became aware of a noise which sounded like the movement of a person in the house. Initially he assumed it was his house mate, Spencer White, coming home for lunch but when he looked at the clock he realised it was too early for that. He got out of bed and opened his bedroom door, to be confronted by the offender, a complete stranger. The offender looked at Mr Henderson and said: "All right mate", before turning round, running down the stairs and then into a waiting car. Mr Henderson heard the engine revving and assumed there must have been a getaway driver. He discovered that his wallet containing £120 in cash, his bank cards, driving licence, CPC card and a tachograph card had been taken. 4. Later that morning, at about 11.15, Holly Anderson was working in a local betting shop when the offender and another man (Declan White) entered. She had seen them in the betting shop over the preceding three months. They were there for about 90 minutes, and after the shop had closed in the evening a member of staff found a bank card and some identification belonging to Lewis Henderson in a bin. These had been disposed of by the offender. Holly Anderson located Mr Henderson via social media and informed him of what she had found, leading to the identification of the offender as the burglar. 5. On 19th October 2017 the offender broke into a dwelling called White Gables in Griston, Norfolk, entering via a smashed lounge window. The occupiers, Mr and Mrs Bartlett were on holiday in Corfu at the time, having left the property secure on the preceding Friday 13th October. When they returned on 20th October they were met by their daughter who told them that they had been burgled the previous day. In the course of the burglary, the offender took a significant quantity of jewellery, with an unknown value, but of substantial sentimental value, as well as some personal items. 6. The offender asked the court to take into consideration 24 offences including domestic and commercial burglaries and thefts. He had pointed out his involvement in these offences in the course of a drive around and a voluntary interview with police officers. There were no victim impact statements in the case. 7. The offender has 32 convictions for 52 offences including 27 acquisitive offences. The most relevant of these were: 10th November 2004, burglary with intent to do criminal damage and non-dwelling burglary committed on 15th April 2004; 14th September 2005, theft, shoplifting, committed on 10th September 2005; 1st November 2006, two burglaries, non-dwelling and four offences to be taken into consideration, committed between September and October 2006; 6th December 2006, dwelling burglary committed on 10th August 2006, resulting in a supervision order; 4th July 2007, theft committed on 21st June 2007; 29th August 2007, five thefts, four from vehicles, committed in May 2007; 7th May 2008, theft of a bicycle committed on 8th April 2008; 2nd September 2008, theft committed on 6th March 2008; 5th December 2008, non-dwelling burglary committed on 25th July 2008; 3rd April 2009, theft committed on 11th March 2009; 22nd September 2009, found on enclosed premises for an unlawful purpose committed on 18th September 2009; 24th November 2009, making off without payment committed on 20th November 2009; 17th March 2010, theft committed on 24th April 2009; 25th August 2010, dwelling burglary, committed on 19th November 2009, resulting in a sentence of 547 days' detention in a young offender institution; 11th September 2012, theft committed between June and August 2012; 8th October 2012, handling stolen goods committed on 5th September 2012; 28th January 2013, handling stolen goods committed on 25th November 2012; 19th August 2013, three dwelling burglaries and 79 offences taken into consideration, the burglaries committed in January 2013, resulting in a total sentence of 42 months' imprisonment. The offender's appearances in court prior to 6th December 2006 had been in the Youth Court. Mr Schofield, who appears for the Attorney General, submits that the antecedent record and the 24 offences taken into consideration demonstrate that the offender is a repeat burglar who typically steals cash, bank cards and jewellery, or targets non-dwelling premises with the intention of the stealing led, copper or other marketable metals. He accepts that the offender does not have an established offender pattern involving the targeting of occupied dwellings, nor confronting occupants. 9. An oral pre-sentence report was provided to the court by a probation officer on 19th January 2018. She told the court that the offender's acquisitive offending was linked to an addiction to class A drugs. She concluded that he presented a high risk of further offending and a medium risk to the public while he continued to use crack cocaine. Given his poor response to and failure to comply with previous orders, and after consultation with the offender's offender management team, the probation service concluded that he was not suitable for a non-custodial sentence with a drug rehabilitation requirement. The probation service felt unable to support any community-based sentence. 10. On 8th December 2017, the offender appeared before the judge for a pretrial preparation hearing. He faced three counts charging the three burglary offences to which we have referred. He pleaded guilty to each count and asked for 24 offences to be taken into consideration. It is unnecessary to set out these offences in detail. It is sufficient to say that the offences took place between 30th April and 24th October 2017 and they included four offences of theft, six offences of non-domestic burglary and 13 offences of dwelling-house burglary. No basis of plea was advanced in relation to any of the guilty pleas and the case was adjourned for sentence. 11. On 19th January the case was listed for sentence before Judge Lynch. In respect of the sentencing guidelines, the prosecution submitted that the burglaries on 17th September and 27th September 2017 were Category 2 burglaries, owing to the fact that there was a significant loss caused from the first offence and there was a getaway driver on the second, and the burglary on 19th October 2017 was a Category 3 burglary. In mitigation it was submitted that the offender was genuinely remorseful, had not ransacked or vandalised the property on 17th September and at least some of the offences in the TIC schedule could not be linked to the offender but for his admissions. 12. The judge accepted that the offender was at least trying to remain abstinent from controlled drugs. She noted that he had been offered help in the past by the probation service and that he had repeatedly rejected these offers of help. The judge properly recognised that he had committed a spate of burglaries which were serious offences because whatever the immediate loss in material terms, such crimes make people feel vulnerable in their own homes. She accepted that he was not a professional burglar, although he was a prolific one. She told the offender she was going to give him a chance and pass "a fairly lenient sentence." She adopted a starting point of three years and discounted that sentence by 20 per cent to reflect his pleas of guilty. 13. In his submissions on behalf of the Solicitor General Mr Schofield has referred to the Sentencing Council Definitive Guidelines for Burglary Offences, and Offences Taken into Consideration and Reduction in Sentence for Guilty Pleas. So far as the three burglary offences were concerned, he submits that there were a number of aggravating factors identified in the burglary guidelines: the offender's previous convictions, the proper inference that the offences were committed whilst under the influence of crack cocaine and the number of burglary offences to be taken into consideration. 14. The Solicitor General recognises, as did the judge, the mitigation of the offender's remorse and his demonstrated determination to address his drug addiction. It is common ground that the offending triggered the operation of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the Sentencing Act") which required the imposition of a minimum term of three years for a third burglary offence after 20th November 1999 unless there were particular circumstances which would make it unjust to do so. There has been no suggestion at any stage that it was unjust to start with the three year minimum term, or that on that basis the maximum credit for the guilty pleas was 20 per cent as set out in the guidelines on reduction in sentence for guilty pleas at page 7. 15. Mr Schofield draws attention to the provisions of the guideline on Offences Taken into Consideration. At page 2: When sentencing an offender who requests offences to be taken into consideration (TIC's), courts should pass a total sentence which reflects all the offending behaviour. The sentence must be just and proportionate and must not exceed the statutory maximum for the conviction offence. Later: The court has discretion as to whether or not to take TICs into account. In exercising its discretion the court should take into account that TICs are capable of reflecting the offender’s overall criminality. The court is likely to consider that the fact that the offender has assisted the police (particularly if the offences would not otherwise have been detected) and avoided the need for further proceedings, demonstrates a genuine determination by the offender to 'wipe the slate clean'. 16. In conclusion, Mr Schofield submits that the imposition of 29 months' imprisonment was unduly lenient in that the notional sentence was set too low given the nature and quantity of offences for which the offender was to be sentenced, and the nature and quantity of offences to be taken into consideration. The totality principle was not applied properly or at all, in the sense that all the sentences were ordered to run concurrently without any adjustment to the lead sentence. The previous convictions of the offender, and his response to previous sentences were significant aggravating factors which were not adequately reflected in the sentence and too much emphasis was placed on the offender's personal mitigation. 17. Mr Hughes for the offender, submits that the although he might have been fortunate the sentences, although lenient, were not unduly so. He acknowledges that the offender was heavily convicted. However, he submits there is no basis for the view that he is a professional burglar or that he targets substantial homes. He accepts the burglaries taken individually were Category 2 offences within the meaning of the burglary guidelines with a starting point of 12 months, but he points out that in respect of the offences taken into consideration, many of the crimes would never have been solved but for the offender's co-operation and this indicated the steps he was taking to get a grip of his life. In this submission he is supported by the passage from the guideline on Offences Taken into Consideration in the passage to which we have referred. 18. All this was something the judge recognised. Mr Hughes acknowledges that the offender fell to be sentenced in accordance with section 111 of the Sentencing Act and that in these circumstances the maximum credit to which he was entitled was 20 per cent. However he points out that the judge paid careful regard to these restrictions on her sentencing options. She started with a term of 36 months and gave 20 per cent credit for pleas and imposed a term of 29 months. 19. In conclusion, he argues that the judge was fully entitled, having heard the facts of the offender's antecedent history and the mitigation, to take a starting point of three years before giving appropriate credit and that the sentence was merciful but not unduly lenient. The judge had considered all the material factors and reached a judgment to which she was entitled. 20. In our view the overall sentence of 29 months was unduly lenient. The offender had a very poor antecedent history which included domestic burglaries since 6th December 2006, as we have described, as well as the large number of offences of dishonesty. He had received sentences of imprisonment including a previous section 111 sentence for a term of 42 months. None of these sentences appears to have had any effect on his offending, other than to cause it to stop while he served custodial sentences. 21. The guideline on Offences Taken into Consideration indicates at page 4 under the heading "application" (paragraph 2) that having determined the starting point for the index offending, the offences taken into consideration "should generally be treated as an aggravating feature that justifies an upward adjustment from the starting point". The guideline continues: "Where there is a large number of TICs it may be appropriate to move outside the category range although this must be considered in the context of the case and subject to the principle of totality." 22. The first domestic burglary offence had caused substantial water damage to the house. The second involved a confrontation with the occupant and involved another participant. The third involved loss of jewellery and other personal items. Whether or not he was a professional burglar, the offender was certainly a prolific burglar as the offences taken into consideration demonstrated. 24. The judge recognised that the sentences were lenient and gave reasons for passing the sentence she did. We acknowledge that judges can properly pass merciful sentences where the circumstances call for it. However in our view the starting point of three years was significantly too low in view of the antecedent history, the nature of the offences themselves and the offences take into inconsideration, which reflected the offender's overall criminality. There was mitigation available to him, as the Solicitor General has acknowledged but that mitigation was also available to him when he was sentenced in August 2013. There comes a time when such mitigation ceases to have potent effect. He had been given chances in the past and he had not taken them. In our judgment the appropriate starting point was a term of five years and, with 25 per cent credit for his plea, the appropriate term should be a term of 3 years and nine months, or 45 months. Accordingly we grant leave and substitute in place of each one of the sentences of 29 months a term of 45 months.

```yaml citation: '[2018] EWCA Crim 1335' date: '2018-03-28' judges: - LORD JUSTICE SIMON - MR JUSTICE GOSS - HER HONOUR JUDGE TAYTON 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: [2011] EWCA Crim 524 Case No: 2011/0621/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 16 February 2011 B e f o r e : MR JUSTICE SILBER THE COMMON SERJEANT OF LONDON His Honour Judge Barker QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v CC - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of 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 K Robinson appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T 1. THE COMMON SERJEANT: CC is 35 years of age and a Turkish national. He appeared on 12th January 2011 at the Crown Court sitting at Leeds before His Honour Judge Hoffman having returned the day before from Turkey and there being in existence an outstanding warrant for his arrest. He was charged with failing to surrender to his bail. He pleaded guilty on that day. Two days later, on 14th January 2011, he was sentenced to nine months' imprisonment, with the two days spent on remand to count against the sentence. 2. There is on this count an automatic right to appeal against sentence and so this matter has been referred to the Full Court in a timely manner by the Registrar. 3. The background is this. Originally he was arrested and charged with rape. On 27th July 2009 he was due to surrender to the Crown Court but he failed to appear and thus the warrant was issued. He had fled to his native Turkey. The trial proceeded in his absence. It proceeded in May 2010 between the 18th and the 20th and the end result was acquittal. He has no known previous convictions. 4. The learned judge in his sentencing remarks said he was making it clear that the appellant was being sentenced for this matter and not for being found not guilty on the rape count. It was nonetheless a serious attempt both to evade justice and to undermine the course of justice. The learned judge then outlined various things that had happened in the course of the trial. But he noted there had been a lengthy absence and thus a sentence towards the top end of the bracket should be merited. 5. The written grounds are short and simple: too high a starting point and failure to take sufficient account of the plea. Miss Robinson this morning has underlined succinctly and helpfully those grounds. 6. We have had the opportunity to consider this matter. This was a serious and a deliberate offence and it did show a complete disregard to the criminal justice system and to the court. Nevertheless, there must be a clear distinction between that attitude and his bizarre behaviour in conducting the trial whilst he was out of the jurisdiction. In our judgment the sentence in what is a most unusual and probably unique case is too high. It must be marked by an appropriate sentence which is towards the top end, but we think in our judgment the justice of the case can be met by a sentence of six months. We will quash the original sentence of nine months and substitute a sentence of six months. To that extent the appeal is allowed.

```yaml citation: '[2011] EWCA Crim 524' date: '2011-02-16' judges: - MR JUSTICE SILBER - His Honour Judge Barker QC ```

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Neutral Citation Number: [2011] EWCA Crim 1690 No: 2011/0381/C2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday 27 June 2011 B e f o r e : LORD JUSTICE LEVESON MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - - R E G I N A v ADAM E - - - - - - - - - - - - - - - - - - - - - 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 McGarry appeared on behalf of the Appellant Mr M Blakey appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgment 1. LORD JUSTICE LEVESON: On 20th December 2010 in the Crown Court at Manchester Minshull Street, before His Honour Judge Blake and a jury, this appellant was convicted of 11 counts of indecent assault contrary to section 14 of the Sexual Offences Act 1956 , six counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 and one count of attempting to have penetrative sexual activity with a child under the age of 16. On 1st February 2011 he was sentenced to seven years' imprisonment for the offence of attempting to have penetrative sexual activity with a child and four years' imprisonment on each of the remaining counts, the sentences all to run concurrently, making seven years in all. The judge made the appropriate ancillary orders and directed that time spent on remand counted towards the sentence. He now appeals against conviction by leave of the single judge. 2. The facts can be summarised comparatively briefly. The complainant, C, was born in [a month] 1990 and was the stepdaughter of the appellant, the appellant having met her mother in 1995. The family lived in P between 1995 and 1998 and, when C was 8 years old, moved to an address in W. In October 2000 the complainant's half sibling (A) was born. From 2001 to 2005 the complainant attended school in the N area, staying with her maternal grandmother during the week and returning to the family home at the weekends. It was said that her mother suffered from post natal depression and also spent time at her mother's home in N and was absent from the family home. In January 2005 the complainant enrolled at a school in W and in the latter part of 2005 started a sexual relationship with a young man, R. This was discovered by her mother and the appellant and as she was underage a report was made to the police. R was arrested but no charges were brought. 3. In February 2003 the family moved and three years later the relationship between the appellant and C's mother ended, whereupon the appellant left the family home and went to live in P. The complainant went to live with the family of R. 4. In May 2008, C alleged that she had been abused by the appellant. She was interviewed on 23rd June 2008 and the appellant was arrested and interviewed on 3rd June 2009. 5. The prosecution case was that between 2000 and 2006 when C was between 10 and 15 years old, the appellant had sexually assaulted her at both W family homes. In addition to her account through an ABE interview, the prosecution relied upon the evidence of complaint to R and to his mother. Reliance was also placed on evidence from the complainant's friends regarding the appellant's inappropriate behaviour towards C. There was also evidence from staff at the school concerning his overbearing behaviour. Finally, there was evidence of a letter from the appellant to C in 2006 that the prosecution contended was expressed in the language of a jilted lover. The prosecution relied by way of admission upon the evidence of a clinical psychologist, Dr Hogan, that the complainant presented with symptoms consistent with extensive child abuse. 6. The defence case was one of denial. The allegations were fabricated by the complainant who was aggrieved that the appellant had discovered that she was having a sexual relationship with R and, furthermore, that the appellant had obtained a contact order in respect of C's younger sibling. 7. The issue for the jury was whether they could be sure the offences occurred in the manner described by the complainant on the two specific occasions in two counts and in relation to the others on numerous other occasions. 8. It is unnecessary for the purposes of this judgment to outline in detail the evidence that was adduced at the trial, touching not only on what C had to say but also the other witnesses to whom we have referred. 9. The issues brought on appeal concern three areas. The first two relate to the admissibility of the evidence of a consultant psychologist and subsequently to the way in which the learned judge treated that evidence when he directed the jury. The third ground of appeal concerns the judge's failure to deal with certain inconsistencies in the evidence which Mr McGarry on behalf of the appellant contends were fundamental to the defence case. 10. We deal first with the admissibility of the evidence of the psychologist. Because of the way in which the defence case statement had been framed, the Crown sought the evidence of a consultant psychologist who examined the complainant C. He produced a detailed psychological report identifying her history, her mental state and reviewing a series of standardised assessments which he undertook in order to make an overall assessment of the complainant. 11. For the Crown it was argued that this evidence was admissible on the basis that it provided independent evidence supporting that of C of injurious consequences and undermined the defence case that the complainant was simply lying from first to last because of the appellant's disapproval of her relationship with her boyfriend and his pursuit of access to her half sister. Mr McGarry, for the appellant, argued that it served only as a form of oath helping and was inadmissible. 12. The judge ruled the evidence admissible whereupon the Crown and the defence agreed an admission, copies of which were ultimately placed before the jury. The admission was in these terms: "1. CH was interviewed by Dr Lee Hogan, a clinical psychologist, on 14th April 2010. 2. Dr Hogan's assessment of C is that although she does not meet the criteria of PTSD in response to a single event, the presentation is consistent with a PTSD reaction called type two trauma. 3. Repeated prolonged trauma such as extensive child abuse is considered to be type two trauma." 13. In the light of the admission, the defence had to deal with it and Mr McGarry did so by submitting that what was described as "prolonged trauma of a type two nature" could equally have been caused as a consequence of the disharmony between the appellant and C's mother, in other words the atmosphere at home, along with the fractured circumstances in which C grew up. When summing up, the learned judge reminded the jury of the admission and went on: "Now members of the jury, what he does not say is that her account is true, that's for you to decide not him. He does not even say that the symptoms are necessarily related to a history of child sex abuse, merely that the symptoms are consistent with some long term repeated events. That's all he says. You can accept or reject his opinion, his expert opinion, that's up to you, in fact you only have his opinion. But if you accept it, it's certainly up to you to decide how much it helps you to decide whether these allegations are true or not. How much it helps you or indeed if it helps you or indeed if it helps you at all, that's for you to decide." 14. In this court, Mr McGarry repeats the submission that the evidence of the psychologist was not admissible and took the form of oath-helping (that is to say was no more than evidence to the effect that the account of C was believable and credible). In our judgment, however, although the learned judge did not approach the matter in this way in his ruling, admissibility could have been better analysed and justified on the grounds that it provided evidence of psychological injury in exactly the same way as any doctor might give evidence of physical injury consistent with a particular allegation. It was thus relevant material for the jury to take into consideration when considering where the truth lay. Were the jury sure that the PTSD found by the psychologist to be present was explained by reference to her complaints or could it have been a consequence of the marital disharmony as submitted by the defence? 15. In these circumstances, the direction was entirely sufficient to deal with the way in which the case was put at the conclusion of the evidence. It specifically made the point that the admission did not necessarily relate the condition to child sex abuse or exclude other long term or repeated events. Although the learned judge might have gone further, in our judgment it was unnecessary for him to do so and these grounds of appeal both in relation to admissibility and the way in which the learned judge dealt with the matter, although argued carefully and forcefully by Mr McGarry, fail. 16. We turn to the alternative submission made by Mr McGarry that the learned judge failed adequately to deal with the inconsistencies in the evidence. In his detailed skeleton argument, Mr McGarry identifies six such issues, but he accepted when it was put to him in argument that four of them are really only differences between witnesses rather than inconsistencies in any particular evidence. The first of the two that Mr McGarry relied upon were a visit to the family health clinic which C had said occurred in 2005 -- that is before she had begun a relationship with R at which she emphasised that her knowledge of sexual matters was poor, which was to be contrasted with the evidence of her friend to the effect that she accompanied C to the family health clinic in February 2006 which in fact was after C had formed a sexual relationship with R, thereby undermining her claim to sexual naivety. 17. The second inconsistency upon which Mr McGarry relies is the difference between C's video recorded testimony which put the sexual activity as occurring throughout the period until 2006, at both home addresses, which is to be contrasted with what the complainant said to her mother when first disclosing the allegation, namely that it ceased in 2003 prior to the move to the second address. Mr McGarry contends that the jury were not directed as to how to approach inconsistency of complaint and crucially how such inconsistency might undermine the case for the Crown. He accepted that both Mr Blakey for the Crown and he had focused upon these differences during the course of their closing speeches. 18. The learned judge gave the standard directions as to the reliability of witnesses and the importance of the jury making the decision as to credibility and the like, taking into account such evidence as they had heard and not merely that to which he drew their attention. Each case of alleged failure to give adequate directions to the jury has to be considered on its own merits and it is difficult to derive from other decisions of this court any principle, not least because what is critical is the general consideration of the evidence and the case which has been heard by the jury. The jury do not, of course, only hear the judge's summing-up but have heard the evidence and counsels' speeches. The summing-up is no more than a concise reminder of the important features to which the judge believes the jury ought to have regard. 19. In our judgment, it would have been better had the learned judge pointed to specific inconsistencies upon which the defence relied, but that very different from the proposition that failure to do so renders the verdicts of the jury unsafe. The jury well understood that they had to deal with a head-on conflict between C on the one hand and the appellant on the other. They heard C, they heard her friend, her mother and others; they had the advantage of a telling letter which the appellant had written to C thereafter and which we have had the opportunity of seeing being in language which might well have been taken to support, at least in part, the prosecution case about the relationship between the two. They also had the appellant's evidence in detail and the evidence which was called on his behalf. 20. In our judgment, it goes too far to say that because the learned judge did not point out these two important inconsistencies or identify other slight differences in the evidence, that the verdicts of the jury are unsafe. 21. In the circumstances, none of the grounds of appeal is sustained and this appeal is dismissed.

```yaml citation: '[2011] EWCA Crim 1690' date: '2011-06-27' judges: - LORD JUSTICE LEVESON - MR JUSTICE GRIFFITH WILLIAMS - MR JUSTICE HOLROYDE ```

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No: 200604924/C3 Neutral Citation Number: [2006] EWCA Crim 3412 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 TUESDAY, 19th December 2006 B E F O R E: LORD JUSTICE KEENE MRS JUSTICE COX DBE MR JUSTICE BEAN - - - - - - - R E G I N A -v- ASHLEY GEORGE NELSON - - - - - - - Computer Aided Transcript of the Stenograph Notes of A Merrill Communications Company Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR J ANDERS appeared on behalf of the APPLICANT MR C CRINION appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE KEENE: On 1st September 2006, in the Crown Court at Woolwich before His Honour Judge Carroll, after a four day trial, this appellant was convicted of affray, that being count 1 on the indictment, and sentenced to 10 months' imprisonment. He was acquitted of assault occasioning actual bodily harm. He now appeals against conviction by leave of the Single Judge. 2. Both those charges arose out of an incident in a block of flats in Sydenham, South East London. The appellant lived there and across the corridor from him there lived a man called Brian Kelsey. 3. On the evening of 2nd May 2005, Kelsey was visited by a friend of his, Dale Kinvig, and Kinvig's partner and baby son were present as well. Kinvig gave evidence at trial but Kelsey did not and the police have found it difficult to contact him. Dale Kinvig's evidence was that when he left Brian Kelsey's flat at about 10.30 pm, the appellant had come out of his flat shouting angrily. Kinvig's partner and son had gone downstairs because they were frightened. The appellant went back into his own flat and Kinvig went towards the lift. But the appellant then reappeared with a machete and began to swing this over Mr Kinvig's head. He hit the wall and lifted the frame with the machete. He swung it about ten times coming, it was said, within about 2 inches or so of Mr Kinvig's head. This went on for about half a minute. 4. There was a further incident in the lift, according to Mr Kinvig. The appellant forced his way into the lift and there he grabbed Mr Kinvig by the hair and hit him on the head with the handle of the machete. At some point the appellant, it was said, held the machete to Mr Kinvig's neck, causing a graze. That was the basis of the charge of assault occasioning actual bodily harm. 5. Police officers who arrived described the appellant as being drunk, his flat as smelling of cannabis and one of them had seen him with a lit cannabis cigarette. The appellant had handed over a knife and two machetes to police officers. 6. The defence case was that the appellant had been the victim of racist abuse from his neighbours. He had heard someone kicking his door in, and found himself confronted by his neighbour, Mr Kelsey and by Mr Kinvig. Two other men then arrived, it was said, and the appellant armed himself with a knife because he feared for his safety and for that of his son. He had retreated inside the flat, and Mr Kinvig's account of events was simply untrue. Indeed, during the course of cross-examination of Mr Kinvig, it was put to him that the allegations against the appellant had been fabricated by Mr Kinvig and Mr Kelsey together, because of a long running dispute between Mr Kelsey and the appellant. In effect it was being said in cross-examination that Mr Kelsey and Mr Kinvig had conspired together to fabricate the account given in evidence for an ulterior motive. 7. The Crown sought to put before the jury evidence of certain previous convictions of the appellant and the judge allowed them in against a defence objection. The convictions in question were for supplying and possession of drugs, in 1992, and for possession of cannabis, in 2002. Other convictions, some for theft and deception, back in the 1980s, and one for criminal damage in 2003 were not put before the jury. 8. The judge in his ruling on admissibility found that the requirements of section 101(1)(g) of the Criminal Justice Act 2003 were satisfied. That is one of the so-called gateway provisions for the admission of bad character evidence and it provides that evidence of the defendant's bad character is admissible if, but only if: "(g) the defendant has made an attack on another person's character". 9. The judge ruled that there had been an attack, during cross-examination of Kinvig, on that witness's character in the light of the assertions made by the appellant's counsel, to which we have already referred. The judge also went on in that same ruling to refer to section 106(1)(c) of the 2003 Act , which provides that for the purposes of section 101(1)(g) a defendant makes an attack on another person's character if: "(c) evidence is given of an imputation about the other person made by the defendant (i) on being questioned under caution before charge about the offence with which he is charged, or (ii) on being charged with the offence, or officially informed that he might be prosecuted for it." 10. In the course of his interview the appellant had asserted that Brian Kelsey, his neighbour, and those in that flat were prolific drug takers, indeed Class A drug takers, and had told lies about him. The judge found that to be an attack on the character of others, especially Mr Kelsey, which fell written the terms of section 106(1)(c) . For that reason also he concluded that gateway (g) rendered the evidence of the appellant's previous convictions admissible. He went on to consider and reject a submission that it would be unfair to admit them, and he indicated that his ruling on fairness operated both under the 2003 Act , presumably a reference to section 101(3) , and under section 78 of the Police and Criminal Evidence Act 1984 . 11. Having admitted the appellant's previous drug convictions the judge, in due course, gave certain directions to the jury about their approach to the convictions. We shall have to come to those directions in due course. 12. That ruling and the subsequent directions to the jury form the basis for the grounds of appeal against conviction. So far as the ruling is concerned, it is not very vigorously contended today that the attack on the character of Mr Kinvig did not satisfy section 101(1)(g) . The focus of Mr Anders' submission, on behalf of the appellant, so far as the gateway provisions are concerned, is the reliance by the judge on what the appellant had said in interview about Mr Kelsey. It is pointed out by Mr Anders that it was the Crown which sought to put in this part of the interview, where the appellant had commented about Mr Kelsey's drug taking, and that the defence had sought its exclusion. 13. Mr Anders argues that those comments were not relevant to any issue in the case and should not have gone before the jury. Had they not gone before the jury, then the comments in interview could not have formed the basis for an application under gateway (g) to admit any of the previous convictions of the appellant. Consequently, the allowing in of that part of the interview was itself an error on the part of the judge. Criticism is also made, to which we shall come, about the judge's ruling on fairness in that respect. 14. We take the gateway aspect of the case first. There is no doubt that the wording of section 101(1)(g) , "an attack on another person's character", does not confine that gateway to the situation where a defendant, personally or through his advocate, attacks the character of a prosecution witness. It goes beyond the wording used in the earlier statutory provision which dealt with this area of law, namely section 1(3) of the Criminal Evidence Act 1898 , which by paragraph (ii) referred to "imputations on the character of the prosecutor or the witnesses for the prosecution or the deceased victim of the alleged crime." Apart from the case where there was a deceased victim, the earlier statutory provision effectively confined this basis for admitting evidence of a defendant's bad character to situations where there had been an attack during the trial on the character of a prosecution witness, including a person whose statement was read at trial. It did not extend to cases where the defendant attacked the character of a non-witness, save that of a deceased victim (see the decision in R v Lee (1976) 62 Cr App R 33). 15. That has been changed by the 2003 Act , which simply refers to "an attack on another person's character", apparently irrespective of whether that person is a witness at trial. It must be taken, in our view, as Parliament's intention deliberately to widen the gateway in this fashion. Nonetheless, we would emphasise that the trial judge still has a discretion as to whether the jury should hear about a defendant's bad character when he has merely made imputations about the character of a non-witness. Not only does he have such a general discretion under section 78 of the Police and Criminal Evidence Act 1984 , but section 101(3) of the 2003 Act specifically provides that: "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." 16. How the trial judge exercises that discretion is a matter for him or her, but it seems to this Court that it would be unusual for evidence of a defendant's bad character to be admitted when the only basis for so doing was an attack on the character of a non-witness who is also a non-victim. The fairness of the proceedings would normally be materially damaged by so doing. 17. Having said that, the facts of cases do vary. Those in the present case seem to us to be such that an attack by the appellant on the character of Brian Kelsey, albeit a non- witness, could properly provide the foundation for the admission of the appellant's previous convictions. We take that view because the basis of the attack on the witness, Mr Kinvig, was that he had effectively conspired with Mr Kelsey, with the result that imputations on Mr Kelsey's character might influence the jury in their view of Mr Kinvig's evidence. The appellant was saying that those two men had jointly fabricated the allegations against him. If therefore the accusations by the appellant about Mr Kelsey's drug taking were properly before the jury in the first place, this might have been one of those rare cases where an attack on a non-witness's character could satisfy both gateway (g) and section 101(3) . 18. However, as we have indicated, that presupposes that those allegations in interview about Mr Kelsey's drug taking were properly before the jury in the first place. It is certainly true that allegations made by a defendant, in interview, as were these allegations, about a person's character may meet the requirements for an attack under gateway (g). That follows from the terms of section 106(1)(c) set out earlier. But that provision depends on the fact that, as the opening words say, "evidence is given" of such an imputation made in interview, that is to say, evidence is given at trial about what was said by the defendant in the course of interview. 19. The defence in the present case objected to that part of the interview going in before the jury, as the Crown were seeking. The judge does not seem in his ruling to have expressly addressed this issue and certainly not with any great clarity. It is, in our view, difficult to see what relevance to the issues before the jury the appellant's comments in interview about Mr Kelsey's drug taking could have had. Certainly it would be improper for the prosecution to seek to get such comments before a jury simply to provide a basis for satisfying gateway (g) and getting the defendant's previous convictions put in evidence. We do not seek to suggest that that was the motivation of the prosecution in this case but nonetheless, objectively speaking, that seems to us to have been the situation which arose. It follows that, in our judgment, this was not a proper basis for meeting the requirements of gateway (g) on admissibility. 20. In the end, however, this is not of significance. The judge found that gateway (g)'s requirements were met by the attack on the witness, Mr Kinvig. That finding seems to us to be unassailable. Moreover, the judge made it clear in his ruling that that was a sufficient basis, by itself, for his decision to admit. In his ruling, at page 5 of the transcript, he said, having just dealt with the argument about Mr Kelsey: "Even if I am wrong about that, I am satisfied that the manner in which the main witness in this case, Kinvig, was cross-examined clearly attacked his character, and again he was called -- in essence he was called a liar, willing to be recruited to come along to give false evidence against someone he does not even know, and therefore again I take the view that the jury are entitled to hear the character of the defendant upon whose behalf that attack on Kinvig's character has been made. I see no unfairness whatever here." That conclusion about gateway (g) cannot be faulted, since the attack on Mr Kinvig was clearly a sufficient foundation for admissibility. We make it clear that it seems to us that no criticism of defence counsel can be suggested for the manner in which he conducted that cross-examination; he was doing no more than putting the essential parts of his client's case as he was required to do. 21. Mr Anders goes on to challenge the judge's finding that it was fair to allow the previous drugs convictions to go before the jury. In particular, he says that the judge approached in a confused way the issue of fairness and that the judge was influenced in his ruling on fairness about the main witness and the attack upon Mr Kinvig, by the view which he had taken of the interview issue. Mr Anders questions whether the judge considered the fairness of the admission of the previous convictions simply based on the attack on Mr Kinvig, a witness at trial. 22. We cannot accept that. It seems to us that it is clear from the passage which we have quoted a few moments ago, that the judge here was applying his mind specifically, when he dealt with the attack on the main witness in the case, Mr Kinvig, to the fairness of admitting the previous convictions within that particular context and without being influenced in that respect by the view he had taken on the interview issue. It is of course well-established that this Court will not lightly interfere with the exercise of discretion in such a situation by the trial judge because, at this stage of the process, it is a matter essentially for the judge's own judgment and discretion. We cannot see that it was not open to the judge on the facts here to arrive at the conclusion which he did, given the attack on the character of Mr Kinvig. His credibility and that of the appellant were central to the case. Any prejudice to the appellant beyond the issue of credibility was extremely limited. The convictions allowed in were not ones of violence, and in any event there was already strong evidence about the appellant's use of drugs on the very evening of this incident coming from police witnesses. One of those, Sergeant Janion, spoke of smelling cannabis when talking to the appellant at his front door; another, Sergeant Mackin, noticed a strong smell of cannabis in the flat and testified that the appellant picked up a lighted joint from an ashtray in the flat. So the appellant's links with illegal drugs were already well before the jury. The judge's decision on the fairness of admitting the past convictions was one which he could properly make in all those circumstances. 23. The other issue in the case concerns the judge's directions to the jury on that evidence of the past convictions. What the judge did in summing-up was to explain how an attack on the character of a victim could lead to evidence of the defendant's character going in before them. He suggested that it might be relevant in assessing the defendant's allegation of drug taking in Mr Kelsey's flat. Then he went on to say this, beginning at page 23F of the transcript of his summing-up: "You may, if you think it right, also take it into account whether you decide or not that the defendant's evidence to you was truthful. A person with bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so. So that is a matter for you to decide, to what extent, if at all, his evidence helps you when judging his evidence." We assume that when the judge first uses the words "his evidence" in that last sentence, he is referring to the evidence about the convictions. 24. That direction did focus the jury's attention on credibility and it emphasised, rightly in our view, that it did not follow that the defendant was incapable of telling the truth. What it did not include was anything to the effect that bad character by itself could not prove guilt and that the jury should not jump to the conclusion that the defendant was guilty just because of that bad character. There is no doubt that the jury should have been directed to that effect, and Mr Anders is quite right in criticising that omission (see in particular the decisions of this Court in R v Hanson [2005] EWCA Crim 824 , [2005] 2 Cr App R 21 , at paragraph 18, and R v Edwards [2005] EWCA Crim 1813 , [2006] 1 Cr App R 3 , at paragraph 3). 25. However, in the circumstances of this case, the Court does not regard this omission, regrettable though it is, as casting any real doubt on the safety of the conviction for affray. First of all, there was clear evidence from police witnesses of the machetes found in the appellant's flat and new scratches to the doorframe of the lift, consistent with the complainant Mr Kinvig's evidence, including one deep scratch on top of the head of the door. There was also evidence of the appellant's condition at the time, affected by alcohol and cannabis, which was also potentially relevant. 26. Moreover, and of some importance, the jury acquitted the appellant on the charge of assault occasioning actual bodily harm. It is therefore apparent that they did not jump to the conclusion that he was guilty of these charges because of his previous drugs convictions. They patently avoided the danger against which the direction, which should have been given and was not given, is intended to guard. 27. In all those circumstances, we are satisfied that this conviction is safe and the appeal against it is therefore dismissed.

```yaml citation: '[2006] EWCA Crim 3412' date: '2006-12-19' judges: - LORD JUSTICE KEENE - MRS JUSTICE COX DBE - MR JUSTICE BEAN ```

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No: 200702358/C4 Neutral Citation Number: [2008] EWCA Crim 775 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Monday, 17th March 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE JACK - - - - - - - - - - - - - R E G I N A v JOGINDER PAUL KASHYAP - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - Non-Counsel application made on behalf of the Applicant - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: This is the renewed application by Mr Joginder Paul Kashyap for leave to appeal against conviction of one offence for conspiracy to facilitate the commission of a breach of immigration law. In the judgment which we have just delivered concerning the renewed application for leave to appeal against sentence of his wife, Rani Kashyap, we have dealt with the facts which gave rise to the offence and those need not be set out again. 2. The first proposed ground of appeal is that the judge was wrong to admit the evidence of Karen Higham, an immigration officer working in Delhi, who had visited a number of villages from which Mr and Mrs Kashyap had recruited persons as musicians to come to the United Kingdom. She had made enquiries intended to find out whether they were genuine musicians or performers or not. She had recorded the answers that she had made in notes which were written up into a report. 3. At the trial the prosecution applied to have that evidence admitted under section 116 of the Criminal Justice Act 2003 . Two points, in particular, were taken against the admission of that evidence: was there sufficient identification of the persons that Karen Higham had spoken to; had all steps that were reasonably practicable been taken to obtain their appearance at the trial either in person or via video link? 4. The judge dealt with those matters with care and at some length. There are no possible grounds for disputing the conclusion that he came to. There is nothing in that ground of appeal. 5. The second proposed ground relates to the admission of evidence concerning a telephone conversation between one Jaswan Singh and the defendant. Jaswan Singh was not called and the judge concluded that in fact the defence would be better off without him being called because of what he might say if he was called. The judge, again, gave a careful ruling concerning this matter. The reasons that he gave for admitting the evidence cannot be criticised. 6. The further proposed grounds of appeal relating to the trial itself refer to the fact that when the time had come for the applicant Joginder Kashyap to give evidence, he being the last witness at the trial, counsel informed the judge that Mr Kashyap no longer wished them to act for him and they could not continue to act, so he was, in effect, in person. 7. Complaint is made, first, that the judge did not allocate Mr Kashyap new counsel, he was left to conduct his own defence from that point, and, second, that there was no sufficient direction to the jury concerning the fact that Mr Kashyap was representing himself. 8. There has been a waiver of privilege in relation to this and we have been able to consider the relevant material. After having first decided that he would not give evidence, the applicant then decided that he would. He then, in effect, it seems, accused his counsel of working with the prosecution. That may have arisen because his counsel suggested to him what questions he would be asked if he did give evidence. That would not be something that would be difficult for an experienced counsel to predict. Mr Kashyap had no grounds for the suggestion that he made against his counsel. He told the judge that he had lost faith in his representation and he then listed a long history of matters going back to the involvement of a legal representative who had long since been replaced in his role in the defence by a solicitor. 9. It was the applicant's own decision to part company from his representatives when, in reality, he had no good reason to do so. He did not in fact ask for fresh representation, but accepted the consequence was that he should represent himself. 10. As we have said, all that remained at this point was for the applicant to give evidence himself, if he chose to do so. The judge gave him time to prepare himself and said that he might take notes and papers into the witness box as he wished. The judge told the jury that he would be representing himself from this point on and explained to the jury that the court would not sit until the following morning so that the applicant could prepare himself. 11. The applicant has not pointed to any specific matter on which he was disadvantaged as a result of the course that he himself had chosen. The judge did not advert in the summing-up to the fact that the applicant was representing himself. It seems to us that if he had done so there would have been a real risk that the jury would have been caused to speculate further about how it might have come about that the applicant was representing himself. That is likely to have been to the applicant's disadvantage. The judge was entitled to conclude that it was better to say nothing about it in his summing-up. 12. The last ground of appeal relates to fresh evidence. One of the witnesses at the trial was Rominder Begampuri. His evidence was referred to by the judge in the summing-up on pages 32 to 34 and again at 171 and 2. 13. Mr Begampuri has now made a statement, saying that he did not give honest evidence to the Crown Court on important matters. There is no evidence before us, as there should be, of the circumstances in which this new statement has come into being. There must inevitably be a substantial question mark over its credibility, but that is not something that we can deal with today. We have concluded that the right course is to refer this ground of appeal to the Full Court. We shall not grant leave, but neither do we strike it down at this point. 14. We will grant a representation order for counsel and for solicitors to take this matter forward. As indicated, it will be necessary, amongst others things, for them to obtain evidence as to how this new witness statement from Mr Begampuri has come into being. They will need to consider whether, if the court hears Mr Begampuri's evidence, it will need to be via a link, or whether he will be available in person. The prosecution should be represented on further hearings of this matter. 15. So the outcome of the renewed application for leave to appeal against conviction by Joginder Kashyap is that the application is dismissed on all grounds, save the application for further evidence, which is referred to the Full Court as we have indicated. 16. LORD JUSTICE TOULSON: Mr Kashyap, have you understood the effect of that? 17. THE APPLICANT: A little bit. 18. LORD JUSTICE TOULSON: Right. Well, you will get a transcript. You will need to go and see your solicitors because the effect of it is that your application, as my Lord has just said, is refused on all grounds, except your attempt to introduce the fresh evidence of Mr Begampuri. That is unsatisfactory in its present form and we have expressed scepticism about it, but we are not cutting you off at this point, but you will need to see solicitors about it and you will be provided with a transcript of what the court has said. 19. THE APPLICANT: So they will have the legal aid? 20. LORD JUSTICE TOULSON: You are being given representation for counsel and solicitors limited to this point. Thank you. 21. MR JENKINS: My Lords, I will explain it to him outside. 22. THE CLERK TO THE COURT: The representation order, my Lord, is that limited to junior counsel. 23. LORD JUSTICE TOULSON: Yes. 24. THE CLERK TO THE COURT: Are you minded to impose any timetables or time estimates? 25. LORD JUSTICE TOULSON: What is the conventional period, can you remind me? 26. THE CLERK TO THE COURT: It is usually four weeks. Time, on fresh evidence, about half a day if they are minded to, or do you want to have it mentioned beforehand to see if witnesses are coming? 27. LORD JUSTICE TOULSON: We will direct that any amended grounds of appeal, skeleton argument and further evidence be lodged with the court within 28 days and that any application for an extension of that period to be addressed to the registrar. The point is this, the matter has to be kept moving but we recognise that getting your solicitor instructed, getting them to prepare the -- obtain the information, which at the moment is lacking, about how the witness has come to change his evidence and produce a proper skeleton argument, particularly when the witness is in India, may take more than 28 days. If it does, your lawyers will have to apply to the registrar explaining what the position is and asking for whatever extension time is needed. Thank you very much.

```yaml citation: '[2008] EWCA Crim 775' date: '2008-03-17' judges: - LORD JUSTICE TOULSON - MR JUSTICE JACK ```

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 308 Case No: 2009/04202 D4 + 2009/04655 D4 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHELMSFORD HHJ BALL QC T20097016 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/02/2010 Before: LORD JUSTICE HOOPER MR JUSTICE MACKAY and MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - - Between: Craig John Higgins and Richard Michael Phillip Guy Appellants - and - The Crown Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R Bryan for Craig Higgins Mr J A Lyons for Richard Guy Mr R J Livingston for the The Crown Hearing date: 23 February 2010 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER: 1. On 3 rd August 2009 at the Crown Court at Chelmsford (H.H.J. Ball Q.C.) both appellants were convicted of the following offences: robbery; kidnapping; fraud and assault occasioning actual bodily harm. 2. They appeal their convictions with the leave of the single judge, Penry-Davey J. 3. At the conclusion of the hearing yesterday we announced that the appeals would be dismissed and we now give our reasons for that conclusion. 4. All the offences arose out of the events of the night of Friday 21 st to Saturday 22 nd November 2008 and concerned the complainant, Clive Sparton, who was 22 years old and lived at home with his parents (14G). The appellants were in the same age bracket. 5. The complainant went to a local bowling alley where he met with a group of recently acquired friends. Present amongst the group were the two appellants. Subsequently, at 00:14 both the appellants and the complainant were captured together on CCTV for a period of about 10 minutes at a Somerfield store attached to a petrol station. 6. Records showed that at about 00:16 £250 was withdrawn from the complainant’s account using his bank card from an ATM at the Somerfield store, followed a minute later by a balance enquiry. At 00:25 a purchase of £85 was made on the card in the store which included £50 cash back. This was followed a couple of minutes later by a further card purchase for £67, including £50 cash back, and then at 00:29 a £12 purchase. At 00:31 there was a failed attempt to withdraw a further £300 from the cash machine. 7. At about 01:30 the card was used again at a Tesco store cash point to withdraw a further £50. There followed a further four unsuccessful attempts to withdraw additional cash from the same machine plus a balance enquiry. 8. The complainant alleged that these transactions were made by the appellants using his bank card. They had assaulted him, stolen his bank card from him at knife point, before forcibly taking him to the Somerfield store. At some point they had parted company. There was a dispute as to whether before the jury were entitled to infer from the manner of the use of the card at Tesco that, by then, the appellants had parted company with him, keeping his card. If the jury reached that conclusion, then that would have provided very strong support for the complainant’s allegations. 9. A number of hours later the complainant arrived at his parents’ home injured. On Sunday 23 rd November the complainant attended Accident and Emergency. Hospital records showed that he was complaining of having been assaulted and of having briefly lost consciousness. Black eyes, scratches to his face and a bruised left ear were all noted. The injuries were consistent with his having been hit with blunt objects. They were consistent with the complainant’s account of the evening. 10. The matter was not reported to the police at all until 8 th December when the complainant’s father attended the police station to inform them his son had lost his wallet and bank card and a bank statement showed that the card had been used after it had gone missing. 11. On 10 th December both the complainant and his father returned to the police station and for the first time the complainant gave an account to the police that the complainant had been robbed at knife-point and forced to withdraw money and make purchases using his card. No names were mentioned to the police albeit that the complainant knew them. In a later statement the complainant continued, in one respect, not to divulge the whole story. 12. Police obtained CCTV footage from the Somerfield shop and from which the two appellants were identified. They were arrested on 15 th December. 13. Both appellants had a number of previous convictions which included offences of dishonesty and assault. We return to those later. 14. In interview Guy made no comment to the questions put, other than to state that he, Higgins and the complainant, along with a few others, would go bowling together, where they would all drink alcohol and sniff lots of cocaine. They were together all night drinking and taking cocaine. Nobody was robbed. 15. Higgins gave a full account which was broadly consistent with his evidence at trial save that he failed to mention that they had gone to Tesco to withdraw more money. 16. The prosecution case on all counts was that the complainant’s account of events was truthful. The appellants had identified him as a soft-target who would be susceptible to threats and who was in work and therefore in money. In respect of all the counts both appellants were acting together. 17. The defence case was that the complainant’s account was a complete fiction designed to cover up his extravagant expenditure that night and the dishevelled state in which he turned up at home the following morning. His evidence that he had been assaulted, robbed and kidnapped by the appellants was completely untrue. 18. The principal issue for the jury on all counts was whether or not the complainant had provided a truthful account as to what had occurred . 19. We turn to the evidence in a little more detail. 20. The complainant said that at the bowling alley he drank, at most, only three pints of lager. He did not join the others in buying jugs of lager. He did not partake in the use of any drugs that evening nor did he see any sign of anyone else using drugs, although the appellants, with whom he socialized, did appear to be slightly on edge and jumpy. He left early, on his own, as he felt as though he had a cold coming on. On his walk home he went down an alleyway and as he did so he heard footsteps coming up behind him. He was attacked from behind, hit around the head, punched by Higgins which caused his glasses to be knocked off. He was both punched and kneed in the stomach by Guy. Higgins then got hold of him in a bear hug and Guy pulled out a knife. The appellants said that they wanted money for a taxi. Guy searched his pockets, took his mobile phone, found his wallet and took cash and his debit card from it. The interest of the appellants then turned to using the card to withdraw money from a nearby ATM. They then accompanied him, one on either side of him with the knife pressing against his back, to a Texaco petrol station which had a Somerfield store attached. At the shop’s ATM the bank card and PIN were passed to Higgins who then operated the ATM. Guy was holding onto him and threatened to “cut up” both him and his family if the PIN he had provided was wrong. There were two successful transactions at the machine by which the appellants withdrew first £250 (Count 3) and then £50. Guy then entered the shop and shortly after Higgins ordered the complainant into the shop. He was told not to draw attention to himself and he picked up some lagers when ordered to do so by the appellants. He simply watched whilst the appellants carried out a further three transactions using his card at the till. Having then left the shop the appellants walked him to a house. During the walk there were further assaults upon him. He was hit on the head with a lager can, he was kicked, he had a hat pulled down over his eyes so that he could not see where he was, and he was punched so that he fell onto the bonnet of a parked car. At one point he dropped the lagers he was carrying and for which he was hit again. Once at the house he was made to sit on the floor with the hat still covering his eyes. He was taken outside and down some stairs during which he hit his head. Having left the house, Guy said that he had had enough and was “going to sort it out” before running off, leaving the complainant alone with Higgins. Higgins shouted after Guy before running off after him, leaving the complainant on his own. He was battered, frightened, dazed, disorientated and lost consciousness on more than one occasion. He could not account for what happened to him between when he was left by the appellants and when he arrived at home at 08:30. He knew nothing about the card transactions at Tesco (Count 4). He spent most of the Saturday in bed and attended Accident and Emergency on the Sunday as he was still suffering from headaches. 21. In cross-examination the complainant said that he did not take drugs. He had not taken drugs on the night of the incident and had not decided that he would like some more. The police had taken a hair sample to test for whether he had taken drugs that night. We return to that evidence when considering ground 1. 22. Matthew Walker, an assistant at the shop where the transactions took place, recognised the two appellants when they came into the shop. He did not know the complainant whom he described as looking worried. He did not notice any sign of injuries to the complainant. The witness dealt with the second and third purchases made by the appellants. They then made a further request for cash back which was refused and consequently they had to be asked to leave the shop. It was the appellants who were at the till doing all the talking whilst the complainant was just standing back and not saying anything. 23. Martin Metson, the second shop assistant, dealt with the transaction by which the appellants purchased some drink and cigarettes as well as obtaining £50 cash back . The three men appeared to be drunk and wanted to get things done in a hurry. When the appellants were refused a third request for cash back they became very agitated and started arguing with him. 24. Clive Sparton Snr . , the complainant’s father, described his son as something of a loner, socially isolated, timid, and lacking in self-confidence. When the complainant arrived home on 22 nd November he had black eyes, scratches to his neck, forehead and hands, cuts to his lip and nose, and puffy cheeks. He was complaining of pain in his knees and his glasses were missing. The witness took steps to put a stop on the complainant’s bank card. 25. The prosecution relied on the CCTV evidence to support the complainant’s account. 26. The appellant, Craig Higgins, in evidence said that he had been frequenting the bowling alley for about three weeks since moving back in with his mother. On 21 st November he went there with Guy, the complainant, Ashley Gerard, Andrew Coleman and two others whose surnames he did not know. He arrived at about 19:30 and the complainant arrived shortly afterwards and came over and joined them. Everyone, including the complainant, was drinking from jugs of lager. Higgins also had a few lines of cocaine and a bit of MDMA powder. The complainant also took cocaine with him in the venue’s toilets. They stayed at the bowling alley, taking part in the karaoke, until about 23:30. 27. The appellants and the complainant left the bowling alley together and the complainant asked them if they could get some more cocaine and make a night of it. The appellants had some cocaine on them but not enough to last the night. They all walked together to the petrol station and no force or pressure was applied to the complainant to get him to accompany them and no violence was used. 28. At the cash machine the complainant gave them his card and PIN and the appellants together drew out £250. There was only one transaction using the cash machine as the complainant had said that £250 was his withdrawal limit. The complainant then suggested that they go into Somerfield to purchase some beers and get £100 cash back. Everything that happened in the shop was with the complainant’s consent. There was a period when the complainant was outside the shop on his own for about 3 minutes. No pressure was placed upon the complainant. 29. They then set off across a field where they were all having a laugh and a joke and messing around together. There was no violence used and nothing untoward occurred. They made their way to Guy’s house in Warren Road from where they made a telephone call to a drug dealer with a view to obtaining more cocaine. When they could not get through the complainant urged them to try again. The complainant was given his card and money back. More cocaine was consumed at the house, including by the complainant. Andrew Coleman was also present at the house. 30. They left Guy’s house to make their way to the drug dealer’s house. On the way they went to a Tesco store to obtain a further £50 as they were still short of money. Once at the dealer’s address they left the complainant to wait by some bollards as he was not known to the dealer. The complainant handed back to them the £350 that had previously been withdrawn in order to purchase the drugs. The appellants went into the dealer’s house and were there for about 5 minutes, which was longer than expected as the dealer was talking with them. When they left the house the complainant was no longer outside. They looked around for him and returned to Guy’s house to see whether he was there, but he was not. When they left him he had no injuries and he was back in possession of his bank card. 31. The appellant, Richard Guy, did not give evidence and no evidence was called on his behalf. 32. We turn to the first ground of appeal which concerns the manner in which the trial judge dealt with a question arising out of some evidence which the complainant gave. We take a summary of the evidence from the summing-up: Mr Bryan [for Higgins] in cross examination “I am going to suggest to you that everything that happened that night to you was with your consent and with your participation” – answer “that is not true”. Question – “and this is why you told the police through your father that it was a case of a lost wallet and the reason you went to the bank machine and then to the shop is because when you were in the bowling alley you were sharing cocaine with Richard and Craig at the alley”. Answer “that is not true, I don’t do drugs” – “and you decided a bit later on that you would like some more” – “that is not true” – he answered. The next question – “and they told you it was going to cost £400 and you agreed to go to a bank machine to get the money”. Answer “that is not true, the police did a hair sample” “What” asked Mr Bryan – “the police did a hair sample to see whether I had done any drugs that night”. “Well” said Mr Bryan and there was a pause, “you have given some very different descriptions of what took place that night haven’t you” – “no he answered” and then moved on to a different topic. That is it, verbatim. That is the only passage of evidence in this case concerning hair samples in respect of the issue of drugs. 33. Mr Bryan assured us that he was not seeking to establish that the complainant was a heavy cocaine addict, only that the complainant had wanted and used cocaine on that evening. 34. After the evidence had been given the jury sent a note: “Clive Sparton junior said he had had a drug test, who requested it, when was this done, what were the results”. 35. Without consulting counsel the judge said this to the jury just before he started his summing up: Before I forget, I will do some housekeeping as well. The note that one of you sent yesterday about the hair sample, I have been provided with a transcript of a little piece of evidence that touched on that. It occurred during Mr Bryan's cross-examination of Clive Sparton, and Mr Bryan was suggesting to Clive that at the bowling alley he was sharing cocaine with the two defendants. Clive said: "That's not true. I don't do drugs." From Mr Bryan: "You decided a bit later on that you would like some more." Answer: "That's not true." Question: "And they told you it was going to cost £400, and you agreed to go to a bank machine to get the money." Answer: "That's not true. The police did a hair sample." "What?" "The police did a hair sample to see whether I done any drugs that night." That was the passage in which he referred to the hair and the drug sample, clearly indicating -- although there is no further evidence on the point -- clearly indicating (a) that he does not do drugs and (b) they checked his hair to deal with that point. That is the totality of the evidence that you have on it. Whether you draw the inference that what he is saying there, is asserting there, is that, when they tested it, it proved negative for drugs, that might be what you read into it; but that is all you have to go on. 36. Counsel for the defendants complained about the implied suggestion that the jury might draw the inference referred to in the final sub-paragraph above. The judge then said this in his summing-up: Now before I remind you of the piece of evidence in the case about that, before I remind you of that let me just prefix it by this observation – disregard everything that has been previously said about this piece of evidence, so wipe the slate clean in terms of any comment or observation or any erroneous reaction that was earlier given to you. What I propose doing now is quite simply unvarnished reading to you the passage of evidence in which this topic arose. The only passage of evidence in the entire case and what you make of this piece of evidence is entirely a matter for you. 37. Having set out the questions and answers the judge continued: That is the only passage of evidence in this case concerning hair samples in respect of the issue of drugs. 38. It is submitted on behalf of the appellants that the jury would have reached the conclusion that the inference that the complainant was asserting that when the hair was tested, it proved negative for drugs. That is how the judge invited the jury to consider the matter when he first answered the jury question. He did not tell them in the summing up when he corrected what he had originally said, that there was no evidence before the jury giving the results of the test to which the complainant referred. 39. We shall assume that the jury would have concluded that the test was negative and assess the safety of the conviction accordingly. 40. The hair had been taken and had been subjected to forensic analysis. The prosecution had served an expert report written by Kirsten Turner of the Forensic Science Service about the results but had not introduced them into evidence. In broad terms the report demonstrated, from the hair sample, that the complainant was not a regular user of drugs, but the expert was unable to say whether the complainant had consumed drugs on that evening. 41. Whilst not uncritical of the way that the judge handled this issue, it seems to us that there was a simple solution to the problem which counsel for the appellants could have taken and did not. If they were worried that the jury might have thought that the test vindicated the complainant’s assertion that he had not consumed drugs that evening, then they could have invited the prosecution to make an admission that the test did not vindicate this assertion. That was not done. 42. On the assumption that the jury may have concluded that the test showed that the complainant was not a regular user of drugs, we have considered whether we should now give permission to the appellants to obtain a further independent report to verify the conclusions in the report by Kirsten Turner (assuming also that such a report could now be obtained). There is, in our view, no material independent of the appellants to suggest that the complainant was a regular drug user and willing to spend large sums of money on cocaine. The appellants did not seek leave before us to cross-examine Kirsten Turner. In those circumstances we will not adjourn the case for the preparation of such a report and we dismiss this ground. 43. We turn to ground two which concerns the character direction given by the judge. He started by saying You have heard evidence, and you have heard quite extensive evidence, of the bad character (as the lawyers call it) of these two defendants, in contradistinction to Clive Sparton, who you know is not of bad character, has not been taken before the courts and prosecuted for any sort of crime. 44. None of the counsel who appeared before us could recollect any evidence that Sparton was of good character and had never been even prosecuted. One counsel thought there had been no such evidence. Mr Livingston thought that there must have been otherwise the judge would not have said it. It is accepted that he was of good character and had never been prosecuted. 45. Mr Lyons in his skeleton argument submitted on the basis of a passage in Archbold, 2010, 8-138 that such material was irrelevant. We have considerable doubts about that: see Phipson on Evidence, 17 th Edition, para. 18-23 and ff. In any event, on the facts of this case, the fact that the judge said this to the does not affect the safety of the conviction. 46. The judge continued: What is the role of bad character in a case such as this? Well, you have got two contrasting accounts. You have the defendants, each in turn, through their lawyers and, in Mr Higgins's case, through him giving evidence himself, saying that Clive Sparton Jnr is telling a pack of lies; he is a perjurer; he is framing these two innocent defendants -- it seems to boil down to because he wants to get money back from the building society which he could not get back if he had simply lost his card with the PIN number in the wallet; and so Clive Sparton, although he has got no previous convictions, is telling a pack of lies about these two defendants and what they have done. He has been subject, as I say, to close scrutiny and attack. In a situation such as that, a court of law will say: well, hang on a moment, let us have a certain levelness of the playing field here. If you are making these attacks against this witness, let us know something about the person that is making the attack, because it may assist you in forming conclusions about the credibility of the attack, the credibility that attaches to the person that is making all these accusations of dishonesty and perjury. 47. No complaint is made about this passage. 48. Complaint is made about what the judge said next and Mr Livingston accepts that that the judge did not adopt a conventional way of dealing with the issue. The judge continued: The people who are making these accusations of dishonesty and perjury have, by any stretch of the imagination, a miserable record . They have been before the courts, although now still very young, many, many times. They are not people who have learned their lesson from the salutary experience of being taken to court, but they have come back time and again. It is not an exaggeration . Richard Guy has been taken to court, that is to say, he has been caught offending and they have decided to prosecute him, and they have taken him to court on 15 separate occasions by the age of 22. In the case of Craig Higgins, he has been caught offending on many, many occasions and his offending has resulted in nine court appearances. You know the sorts of things that they have been involved in. In the case of Richard Guy: stealing, assault, arson, burglary and theft, criminal damage, disorderly behaviour, criminal damage, aggravated vehicle taking, possessing cannabis, using vehicles improperly, attempted theft, assault, aggravated vehicle taking, attempted arson, taking without consent, stealing from a vehicle, interfering with a vehicle, criminal damage, criminal damage, stealing a bicycle, stealing, stealing, and so on. That is him. It tells you something about him. Craig Higgins: handling stolen goods, fraudulently using an Excise licence, disorderly behaviour, fraudulent use of an Excise licence and other driving matters, criminal damage, disorderly behaviour, assaulting a constable, disorderly behaviour, assault, disorderly behaviour, disorderly behaviour, pursuing a course of conduct amounting to harassment, and so on. So, you might think long and hard before acting upon the word of someone like that or the accusations made through their counsel of someone like that. But there is an important caveat. It must always be understood in a criminal trial that the mere fact that someone has come this way before and has got previous convictions does not make them guilty of the crime before the court. However dim a view you may have of them and however reluctant you might be to accept a single word they say, you do not convict someone with a bad record unless the evidence in the instant case makes you sure of their guilt. (Underlining added) 49. Counsel for the appellants drew our attention in particular to the underlined words. They submit that the attack on the credibility of the appellants was intemperate, disproportionate, out of line with the guidance in Hanson, [2005] 2 Cr. Ap. R. 21 and effectively directed the jury to ignore anything the defendants were saying and concentrate on an assessment merely of the evidence of Sparton and of the other evidence called by the prosecution. 50. Mr Livingston submitted that in the underlined passage the judge was doing no more than trying to ensure that the jury still concentrated on whether the evidence made them sure of guilt. 51. In our view the judge in this passage came close to usurping the functions of the jury. 52. In Taylor and Young [2004] EWCA (Crim) 1816 , another division of this court said: 61. Mr Vere-Hodge [for Taylor] referred us to the case of Goodman (CACD, Dyson LJ, Silber J and HHJ Ann Goddard QC) unreported, 12 July 2002 (No 200005645/Z4). In that case the court held that the summing-up was “extremely unbalanced” and the appellant did not have a fair trial. The court said: “16. ... The references to ‘you may think’ and ‘it is a matter for you’ were no more than formulaic expressions which did not touch the substance of what the judge was saying and how that would have been understood by the jury. It seems to us that this summing-up was so unbalanced and unfair that the appellant did not receive a fair trial.” 62. ... it is now accepted that judges should not express their own views on contentious issues. It is fairer to summarise to the jury the rival arguments of the prosecution and the defence rather than use the “formulaic expressions” of “you may think” and “it is a matter for you”. It avoids the risk of an unbalanced summing-up and, we add, the costs associated with an appeal and a possible setting aside of the conviction. We should also not forget the strain which an appeal can impose in this kind of case on the victim’s family and friends. 53. Nonetheless we have decided, not without some reluctance, that this passage does not render the convictions unsafe, given the strength of all the evidence against the appellants. In particular, the history of the withdrawals and attempted withdrawals, including those at Tesco, is quite inconsistent with the appellants’ case that the complainant was a willing participant in what happened.. 54. We turn a ground raised on behalf of Guy only. He did not give evidence and the judge gave the jury the standard adverse inference direction and then said: Well if ... he didn’t go in the witness box because he was scared of being exposed by cross examination then plainly it is something you could put into the scales against him but you would not convict him wholly or mainly on the strength of that, it is just a factor which you could put in the scales as some slight support for the crown’s case but you would not draw an adverse conclusion from somebody not giving evidence unless you thought it was fair or proper and also you would not hold it against him unless you were satisfied that the prosecution’s case was so strong that it required an answer and secondly that the only reason he had not got an answer was because he feared cross examination would expose the weaknesses in his side of the story, such as it is. (Underlining added) 55. Mr Lyons submits that no such direction should have been given. The judge had, rightly, told the jury on the facts of this case that both defendants were either guilty or not guilty. Mr Lyons submitted that the jury would have inevitably considered the case of Higgins first and there was a danger that in deciding on the credibility of Higgins the jury would attach weight to the lack of any evidence from Guy. 56. We see no merit in this point. If the jury did examine the case against Higgins in a vacuum, as Mr Lyons submits, they would be entitled to say to themselves that the only evidence undermining the credibility of the complainant was that of Higgins and take that into account when assessing the case against Higgins. 57. For these reasons the appeals are dismissed.

```yaml citation: '[2010] EWCA Crim 308' date: '2010-02-24' judges: - LORD JUSTICE HOOPER - 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: [2023] EWCA Crim 1010 Case No: CA-202200845-B1; CA-202201616-B1; CA-202200866-B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM NEWCASTLE CROWN COURT His Honour Judge Gittens T20217163 & T20217226 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/09/2023 Before : LADY JUSTICE MACUR DBE MR JUSTICE GARNHAM and MRS JUSTICE THORNTON DBE - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - John Allcock Carl McAlindon Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Matthew Bean (instructed by Crown Prosecution Service ) for the Respondent Mr Robin Patton (instructed by Forresters and Co. ) for the 1st Appellant Mr Peter Eguae (instructed by Mckenzie Bell Solicitors ) for the 2nd Appellant Hearing dates : 27 July 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30am on 5 September 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Note - include here the details of any specific reporting restrictions that have been made by the court. This will have been identified in the Criminal Appeal Office Summary under the Reporting Restrictions heading or from the Court Order. The wording of any reporting restriction must appear in RED TEXT. Lady Justice Macur DBE : 1. On 18 th February 2022, John Allcock, (“JA”) and Carl McAlindon (“CM”) were convicted of Conspiracy to Supply Class A drugs (Cocaine) and Conspiracy to supply Class B Drugs (Amphetamine) contrary to s.1 (1 ) Criminal Law Act 1977 and s.4 (3 ) Misuse of Drugs Act 1971 . JA was also convicted of Converting, Transferring, Removing from England, Wales, Scotland, or Northern Ireland Criminal Property contrary to s.327(1) (c), (d), (e ) Proceeds of Crime Act 2002 . CM was also convicted of two offences of Possessing Criminal Property contrary to s.329(1) (c ) Proceeds of Crime Act 2002 . 2. On 29 th April 2022 JA was sentenced to a total of 21 years imprisonment and CM was sentenced to a total of 13 years imprisonment. 3. The trial took place between September 2021 and February 2022. This is the appeal against conviction by both JA and CM, and appeal against sentence by JA. 4. There were other defendants. Paul Marrow (“PM”) pleaded guilty to conspiracy to supply class A drugs. Two others, who are referred to in one of the grounds of appeal against conviction which alleges inconsistent verdicts, are Michael Vassallo (“MV”) who was acquitted of conspiracy to supply class A drugs and Mark Hiscock (“MH”), who was acquitted of conspiracy to supply class B drugs. Baber Azim (“BA”) pleaded guilty to offences of supply and possession with intent to supply cocaine. Background Facts 5. During the course of 2017 and 2018 a specialist police unit, the North East Regional Special Operations Unit, conducted an investigation into two organised crime groups operating in the South Tyneside and Merseyside areas, believed to be involved in the wholesale supply of cocaine and amphetamine. Geoffrey Caine was identified as being the leader of the Merseyside group. JA was identified as the leader of the Tyneside group, with CM and other co-accused acting under him. 6. Police placed suspected individuals under surveillance and gathered ‘telephone evidence’. On three occasions the police stopped vehicles being driven by the appellants’ co-defendants and found drugs and cash. On 15 th September, PM was travelling away from the ‘transmitting station’, a large warehouse in which drugs paraphernalia was subsequently found, when the police stopped him. Almost a kilo of very high purity cocaine was found secreted in a compartment under the van’s flooring. On 17 th November MH was stopped by police. Approximately £50,000 in cash was found underneath the base of his car boot. On 12 th January another co-accused was stopped by the police. From his car were recovered £1,400 in cash, and a block of cocaine, 81% purity, worth about £40,000 to £50,000 at wholesale value. 7. The Prosecution relied upon the : (i) guilty pleas of others in respect of the conspiracies; (ii) seizures of significant quantities of high purity cocaine from two of the co-defendants coupled with the pattern of phone and cell site evidence linking them on the day of arrest with the appellants, either directly or indirectly; (iii) seizure of approximately £50,000 cash from another co-defendant coupled with the observation evidence of both appellants in his company in the days preceding his arrest and their actions following his arrest; (iv) both appellants’ contact with MV; (v) observation evidence of JA in the company of Caine and MH at the ‘transmitting station’; (vi) items recovered from the search conducted at the ‘transmitting station’ including the finding of JA’s DNA on a contaminated body suit which had been worn near to the process of mixing drugs; (vii) JA’s previous conviction from 2012 for conspiracy to supply amphetamine; (viii) EncroChat material which derived from a French police investigation in 2020 in which discussions appeared to relate to the wholesale supply of drugs and the use of various methods to avoid detection when using telephone communications; (ix) financial evidence of wealth in excess of JA’s declared income; (xi) CM’s possession of a ‘spoofer’ phone and the contact with other conspirators by that phone; (xii) CM’s cash deposit of £10,000 and the significant sum of cash and collectible coins recovered upon his arrest and absent evidence of sufficient legitimate income to account for the sum; and (xiii) his failure to answer questions in interview. Trial 8. The case put on JA’s behalf accepted the use of two contract mobile phones in his own name, but disputed possession or use of other numbers attributed to him, which included one with EncroChat encryption and another that was said to be a spoofing device. CM in evidence accepted the use of several phones attributed to him but disputed the use of a phone characterised by the prosecution as another ‘spoofing’ phone. They said their contact with each other and other co-defendants were innocent. There were limitations on the circumstantial evidence as to the attribution of phones and the generalised nature of cell site evidence. The spoofer phone (see (xi) above) could not reliably be attributed to CM, although recovered from the bedroom which he occupied in his mother’s home. 9. Further, the defence challenged the integrity of parts of the police investigation. 10. A prosecution expert in computer and mobile technology, Angus Marshall, gave evidence in respect of one of the phones attributed to JA, possession of which he disputed. Angus Marshall had liaised with the prosecution telecoms analyst, Darren Irving. The defence relied upon a disclosed email from Darren Irving to Angus Marshall as indicating undue influence in that he invited Angus Marshall to consider re-drafting his report and requested that the email he sent be deleted and not be referred to in evidence. 11. Further, Darren Irving reported that no download had been obtained from one of the numbers attributed to CM, notwithstanding the fact that a check on the police computer system showed that the download had been opened on his password-protected workstation for a short time on one day in December 2019. Thereafter, in December 2021 the defence were provided with a download from the phone’s memory consisting of approximately 27,000 pages. A review of the material confirmed that there was no material on the phone which related to the allegations. 12. Evidence from the ‘transmitting station’ was said to be unreliable. A search warrant for the premises applied for on 24 th May was not executed until 31 st May. There had been no further surveillance of the premises during this period. 13. A DS Fitzpatrick was initially asked to review the video of the search, and the recoveries, and the findings of the scientific experts and provide expert opinion. Having submitted his report dated 01/02/19 he was suspended from duty pending an investigation of alleged misconduct in public office in relation to other matters. DC Malcolm replaced DS Fitzpatrick and should have completed his own review. Instead, he produced a report dated 26 th August which was wholly based upon or copied from, the earlier work of DS Fitzpatrick. Malcolm only viewed the video the day before he was due to give evidence at trial. Furthermore, his superior, DS Edgar, had previously purported to peer review the statement of DS Fitzpatrick without being able to access the material upon which it had been based. In turn DC Griffiths peer reviewed Malcolm’s reports without seeing the search video. Matters only came to light when the defence were provided with disclosure of DS Fitzpatrick’s reports. 14. The defence had originally requested disclosure of DS Fitzpatrick’s statement on 28/09/21. DC Malcolm gave evidence on 26/10/21. The statement was disclosed to the defence on 08/12/21 and two days later the prosecution also disclosed that Fitzpatrick had been suspended from duty. 15. The funds or property that they may have dealt with (see ix) and (xii) in [7] above were not the proceeds of crime but were from entirely legitimate earnings from employment or business. Bad character application re EncroChat 16. Counsel for both appellants objected to the admissibility of the material on the grounds that there had been either no or incomplete service of the raw data underlying the messages and late service of continuity evidence to support it, making it impossible within the confines of the trial window to affect a proper analysis or to instruct an expert. 17. The prosecution accepted that the material was served substantially late and that some of the defence counsel were initially unable to access the material on DCS. That situation, once realised, was remedied overnight allowing the defence an opportunity to grasp the nature of the application. 18. The Judge ruled that the late service of the application and supporting evidence did not prevent sufficient time for proper consideration of the material by the defence team and any nominated expert by the likely time the relevant evidence would be reached and did not prevent further analysis and / or reception of evidence in response, by the close of evidence. 19. The other delays that had occurred in the case had provided substantial opportunity to undertake further work, take instructions, and make necessary applications to the Court. There may have been some limited prejudice caused by the late service but it did not create an unmanageable or substantially prejudicial situation for JA. The delay was not fatal to the application being considered on its merits. It did not prevent cross-examination of the relevant officer about the delay and it did not prevent an expert being instructed assist in the ways outlined by Counsel for JA. 20. The authorities established that the prosecution need not serve every last piece of underlying material, only such as was necessary to underpin that which they sought to establish from the date. 21. The material could demonstrate: (i) attribution of one of the two EncroChat handles to JA; (ii) a propensity for him to be involved in and discuss large scale drug supply at a time subsequent to, but still sufficiently proximate to, the indicted conspiracies; (iii) a propensity to use EncroChat devices and use obfuscation techniques. The jury would be directed that if they could not be sure of (i) then they must ignore the evidence entirely. If it was established that JA was ‘using the relevant handle then the material was capable of assisting in rebutting his defence that his contact with Caine and other conspirators were coincidental and innocent. It would be solely for the jury as to whether the material bore the interpretation suggested by the prosecution. 22. The satellite litigation of those issues was not such as would take an undue periods of time or unbalance the jury’s deliberations. The fact that there may be a significant quantity of other evidence generally and in relation to the propensities referred to above did not preclude the admission of other such relevant evidence. The concern of the co-accused about prejudice by association could be resolved by clear direction to the jury that the evidence had no relevance whatsoever to their cases and by editing of the material. 23. The admission of the evidence would not have such an affect upon the fairness of proceedings, as against either JA or CM, and therefore it would not be excluded under s.78 Police and Criminal Evidence Act (PACE) 1984. Ruling on CM’s submission of no case to answer 24. Counsel for CM submitted that there was insufficient evidence for a jury to draw the proper inference that the spoofer phone could be attributed to the CM and, as there was no further evidence to demonstrate his knowing participation in the conspiracies. 25. The Judge ruled that the attribution of the phone was a matter for the jury. There was evidence linking CM with the phone. Furthermore, the prosecution was not solely reliant upon linking that phone to the appellant. There was sufficient evidence for a jury to properly consider the prosecution case against the appellant on all four counts. It would be a matter for the jury as to what they make of the respective submissions about inferences that can or cannot be drawn from the material. Jury Issues 26. The jury were sworn on 28 th September 2021 for an estimated 12-week trial. The trial overran. By January 2022 the jury had been reduced to eleven jurors due to one juror having a long-standing holiday booked. During the course of the trial one juror, referred to as Juror 6, experienced significant health difficulties that has led to time being lost. On 19 th January he phoned in sick. On that same day the jury, via the foreman, sent a note expressing their concern about the trial overrunning and the toll it was taking on their lives. The letter indicated: “We feel the best course of action is now to continue as a jury panel of 10…”, “we feel that Juror 6 has a high sense of public duty and that his desperate to complete his jury service despite obvious and deteriorating personal health”; and “this represents as mood change for the panel, who have been keen for juror 6 to carry on”. 27. On 20 th January Juror 6 returned to Court but it was agreed by all parties that Juror 6 should be discharged. The judge agreed and reluctantly discharged juror 6. 28. Subsequently that day, one juror, indicated he had not agreed to the contents of the letter and was expressing anger at his fellow jurors. The Judge reminded the jury about the need to work together to reach a conclusion in accordance with their oaths and were told that they would be asked on the following day whether they felt able to do so. On 21 st the juror who had indicated his disagreement with the note indicated that he would be able to work with his fellow jurors. A questionnaire for the jury was thereafter drawn up by the parties and the Judge and in response to which all ten remaining jurors unequivocally stated that they were able to work collectively as part of the whole group in their deliberations and remain faithful to their oaths. 29. The jury retired on the afternoon of 15 th February. In the late afternoon of 16 th February, when the judge wished to discharge the jury for the day, he was informed that one of the jurors was upset and did not want to come into court, although subsequently she did. On 17 th February the Judge invited submissions and subsequently provided guidance to the jury showing respect for other’s opinions. 30. There was no application to discharge the jury by counsel for any defendant at any time. Grounds of Appeal 31. JA pursues ten grounds of appeal against conviction, which may be conveniently grouped under the headings: jury issues; misconduct in police investigation; disclosure failure; and legal misdirection. JA is represented by Mr Patton. 32. CM pursues eight grounds of appeal, some of which mirror those of JA, and which may be conveniently grouped under the headings: legal misdirection; inconsistent verdicts; wrongful admission of bad character evidence against JA; rejection of submission of no case to answer; disclosure failure; and abuse of process related to police misconduct. CM is represented by Mr Eguae. 33. The prosecution have filed a Respondent’s Notice in each appeal. The prosecution is represented by Mr Bean. Discussion: Jury Issues 34. We have indicated the basis of the ‘jury issue’ in paragraphs [26] to [30] above. We can deal with the grounds of appeal which relate to this matter in very short order. We are in no doubt from the description given by Mr Patton that Juror 6 was demonstrably unwell on occasions during the trial. There can be no issue that, even if the trial had not been considerably overrunning its time estimate, that he was rightly discharged for his own welfare, let alone the efficacy of the trial process. 35. The criticism of the contents of the jury note, which inaccurately suggested that the entire jury considered Juror 6 to be compromised, is disproportionate to the facts ascertained on further inquiry. Specifically, Juror 5 was not suggesting that other members of the jury were seeking Juror 6’ removal for nefarious purposes. The judge’s management of the jury situation was sensitive and appropriate. 36. The part of the transcript which deals with the reported upset of Juror 12 would again indicate that the relevant ground of appeal elevates this matter unduly. The report of the usher was apparently not borne out by the observations of Juror 12’s demeanour when she did come into court. It is speculative to assume that she felt “under pressure from other jurors”. The judge’s guidance the following morning was well pitched and explicit. 37. Furthermore, we iterate, no application was made to discharge the jury at any time by any counsel. This indicates to us that the issues were not felt by counsel at the time to compromise the integrity of the trial. We reject Mr Patton’s submission to the effect that either he knew he would be a lone voice, or else he knew his submission would not succeed. The trial process is not to be treated as a rehearsal, nor is an appeal to this Court to be regarded as a second bite at the cherry. 38. The assertion that the jury reached inconsistent verdicts in relation to JA and CM is based upon the asserted lack of cogency in the circumstantial evidence and the jury verdicts returned in respect of MV and MH. We deal with the judge’s asserted error in refusing the submission of no case to answer made on behalf of CM below, but note that no such submission was made as regards JA. This was entirely realistic. In paragraph [7] we deal with the nature of the prosecution case against JA and CM. The cogency of the evidence having regard to the defence challenge to the reliability of phone number attribution, the integrity of the search of the ‘transmitting station’ and the identification of the proceeds of crime were for the jury to decide in the context of the burden and standard of proof. 39. The verdicts returned in relation to MV and MH will only be inconsistent with those returned in the case of JA and CM if the evidence against each defendant was the same. It was not. Both Mr Patton and Mr Eguae highlight that evidence upon which the prosecution relied in relation to JA and CM which equally applied to MV and MH, for example that MH’s DNA was identified upon examination of a protective suit within the ‘transmitting station’. However, they fail to address the several other aspects of the evidence against JA and CM. Significantly, as indicated above, there was evidence to support the link between JA and PM, who pleaded guilty to the conspiracy, and evidence that the latter had made several trips to the ‘transmitting station’ after contact with JA. There was evidence to link JA and CM to BA who pleaded guilty to possession with intent to supply cocaine. The surveillance and telephone evidence was different. The observed association between JA and CM was different in frequency and nature. Notably, no counsel submitted that the judge should direct the jury that the verdicts in relation to all defendants should be the same. (See: Longman and Cribben (1981) 72 CR. App. R. 121 ). Misconduct in police investigation 40. The first matter predominantly concerns the actions of DS Malcolm to which we refer in paragraphs [13] and [14] above. Mr Patton and Mr Eguae submit that the taint runs deeper and involves the exhibits officer, DC Walledge who enabled DS Malcolm to view the video on the eve of him giving evidence and DS Edgar who was said to have peer reviewed the initial report of DS Fitzpatrick although he could not have seen the video footage, similarly DS Griffiths who purported to peer review the report of DS Malcolm. 41. DS Walledge was cross examined before the jury. He denied that he was aware that DS Malcolm had not previously seen the video and therefore could not have alerted the prosecution to this fact. Whilst DS Edgar and DS Griffiths’ claim of peer review may well have been exposed as inaccurate, if not fraudulent, we fail to see that this advances the appeal of either JA or CM or is evidence of wholescale corruption of the police investigation. DS Fitzpatrick’s report was ostensibly abandoned. The prosecution did not seek to defend DS Malcolm’s actions on the basis that DS Fitzpatrick’s report was accurate and thereby to seek to excuse the plagiarism. They recalled DS Malcolm, without notice to him of the reason why, to be cross examined on the point by Mr Patton and Mr Eguae which exposed his professional misconduct. We do not perceive the actions of DC Walledge as inherently suspicious or indicative of a conspiracy with DS Malcolm to deceive. There is no obvious reason why an exhibits officer should refuse a seemingly reasonable request to refresh his memory from exhibited body cam video footage. 42. It is entirely regrettable that this aspect of the case was further damaged by late disclosure by the prosecution of the reports of DS Fitzpatrick. However, there is no evidence to suggest this failure was deliberate or perverse; once disclosure was made, there was no hindrance to the recall and thorough cross examination of DS Malcolm. Neither Mr Patton nor Mr Eguae submitted that what they describe as “police corruption” amounted to an abuse of process which rendered it impossible for JA and CM to receive a fair trial, or that to allow the trial to continue would be an affront to the public conscience, or that it was necessary to discharge the jury on these grounds. We repeat the comment in paragraph [37] above. Counsel who do not seek to challenge the trial process at the time cannot realistically anticipate that this Court will entertain subsequent challenge unless fresh evidence reveals a different scenario to that which objectively existed in the court below. 43. DS Malcolm’s reprehensible behaviour was legitimately and, we have no doubt, thoroughly exposed before the jury. Further, and for completeness, we note the way the judge summed up DS Malcolm’s evidence to the jury on this point in terms that, he had “committed police discipline regulations breaches and he may well have committed perjury…”. The judge correctly directed the jury that it was a matter for them whether they should disregard his opinion evidence entirely. 44. The next matter under this heading concerns the alleged actions of Darren Irving, a civilian analyst in seeking to influence Angus Marshall, an expert in telecommunications which we refer to in paragraphs [10] and [11] above. The prosecution take exception to the interpretation of the email traffic between the two men as indicating such a malign influence. However, it is unnecessary for this court to descent into this arena. Darren Irving and Angus Marshall were cross examined at length with a view to undermining the integrity of the opinions they expressed regarding call data, encryption and ‘spoofer’ phones. This is the purpose of cross examination. We find difficulty in these circumstances to understand what complaint is made that is relevant to this appeal. 45. We make similar comment as to the alleged mishandling of the investigation. The defence were able to challenge by cross examination what they referred to as the police deficiencies. This Court does not conduct a judicial review or ‘oversight; of police conduct, unless it is in connection with abuse of process arguments, or directly linked to the safety of the conviction. The material and matters drawn to our attention makes the challenge appear opportune, but upon close examination, it does not advance the appeal for the reasons we give above. Disclosure failure 46. Mr Bean rightly concedes that the timing of the prosecution’s disclosure of various materials was seriously amiss. He assured us, on our express request that he confirms the present position, that he had satisfied himself that all appropriate disclosure had been made, however belatedly within the trial process and that the ongoing duty of disclosure had been observed. 47. We are in no doubt that the disclosure process was unnecessarily piecemeal and would have added to the delay in concluding the trial within the time estimate and added to the workload of defence counsel. It resounds to the discredit of the prosecution, but this does not of itself lead to the conclusion that the defence were placed in an irredeemable position in representing the best interests of the appellants. We have already dealt with the matter concerning DS Fitzpatrick, DS Malcom et al. and tangentially in respect of the emails between Darren Irving and Angus Marshall above. That is, this late disclosure was, fortunately, more than adequately accommodated within the trial process. Realistically, there is no complaint that the judge’s summing up failed to alert the jury to the defence case in these matters. 48. A separate issue arises from the late service of application to adduce the ‘EncroChat’ material as evidence of JA’s bad character, to which we refer in [16] to [23] above. Remarkably, this ground of appeal is advanced before us more vigorously on the part of CM. 49. The judge’s ruling on this point is difficult to fault. He was satisfied that the late notice did not affect the fairness of the trial process. The judge was able to gauge the progress of the trial, could assess the likely time interval before the evidence would be reached and concluded that an expert could be instructed as appropriate. There had been discussions at the outset of the trial between himself, the prosecution and JA’s team regarding the recent Court of Appeal authority ( R v A R v A, B, D and C [2021] EWCA Crim 128 ; 2021 2 WLR 1301 and R -v- A & Others EWCA Crim 1447 [reporting restricted]) on the admissibility of the EncroChat evidence. It was readily apparent from the material served in September 2020 that the material was potentially significant. However, it “became clear in argument that a strategic decision had been made by the Defence, on receipt of that initial material, to await full continuity evidence that render the evidence of the chats admissible; that unless and until it was served no real steps would be taken in preparation to deal with it, including the instruction of any expert, save for initial discussions and confirmation that the Defendant denied the attribution of the chats.” The judge did not regard that such an approach was required or justified: “I do not accept that the Defence could simply await that further material before acting or say that, because the raw data had not been provided, the product could be ignored, as the clock ran down.” We agree. As it was, the judge noted that Mr Patton “properly acknowledged that it may well have been possible for their nominated expert, who was assisting with a review of the other aspects of encrypted or obfuscation device evidence to be relied upon by the Prosecution in any event, to assist with what material she would need and to return her report to them in sufficient time, if instructed in timely fashion.” 50. Consequently, Mr Eguae’s submission that the prosecution should only be permitted to rely on an extract of the EncroChat material, if CM was able to verify, by way of analysing wider data, the accuracy of any such extract is unconvincing. The extract upon which the prosecution sought to rely was certainly probative of large-scale drug supply, the issue was whether the handle was rightly attributed to JA. We find no basis to conclude that the judge was unreasonable in the exercise of his discretion either to admit the evidence as evidence of bad character or to refuse to exclude the same pursuant to section78 PACE 1984 . For the avoidance of doubt, the judge’s direction to the jury regarding the evidence is unimpeachable both as regards the way it may be used against JA, and the fact that it could not be used against CM. 51. Mr Patton’s complaint that the prosecution wrongly withheld the report of Professor Ross Anderson is challenged by Mr Bean. That is, he submits that the report provides opinion upon a matter of law on the operation of the Investigatory Powers Act 2016 and the admissibility of ‘EncroChat’ material obtained as part of Operation Venetie. JA at no time submitted that the ‘EncroChat’ material was inadmissible by operation of the Investigatory Powers Act 2016 . He accepted that the matter was now governed by binding authority and the judge would be required to follow the rulings of the Court of Appeal. (See R v A, B, D and C and R -v- A & Others Supra .) We agree. 52. Mr Eguae has further complaint regarding the lack of disclosure regarding the download from CM’s phone. See paragraph [11] above. The download was not listed on the unused schedule and was not disclosed until the 17 December. The download apparently amounted to over 27,000 pages of data dating back to 2015, including information relating to calls, messages, applications used, and Wi-Fi connections made. It is submitted that CM was prejudiced since his counsel was forced to assimilate it during the Christmas vacation and as the trial proceeded and was prevented from cross-examining “numerous prosecution witnesses in respect of its contents.” 53. Mr Eguae has good reason to be disgruntled at late disclosure, and we have already commented adversely upon the prosecution deficiencies in this regard, however, we fail to see in what way CM was disadvantaged. The download was available 30 days before Darren Irving, who had indicated that it had not been obtained, gave evidence. He was appropriately challenged. There was no application to recall witnesses and CM, who gave evidence, did not refer to it. Submission of no case to answer 54. We cross refer this topic to paragraphs [38] and [39] above. The application made on behalf of CM was decidedly ambitious. It centred upon the attribution of the spoofer phone which CM disputed. However, as the judge correctly identified, the case against CM was not dependent upon this evidence alone and in any event, there was evidence upon which the jury could conclude that the phone had rightly been attributed to CM. We agree with the judge that Mr Eguae’s submissions were ‘jury points’. Misdirection 55. CM gave evidence that he had previous convictions for violence, and offences of possession of controlled drugs of class A, B and C between 2002 and 2020. In these circumstances, Mr Eguae submits in writing that the judge was wrong not to give a modified good character direction in respect of CM in view of the absence of similar convictions and any recent convictions which would indicate a propensity to be involved in an organised crime group drugs conspiracy. However, he realistically conceded in oral submissions that this was a matter within the judge’s discretion, and did not pursue the matter further. (See Hunter (Nigel) & others [2015] EWCA Crim 631 ; [2015] 2 Cr. App. R. 9. [85]-[88] ). We find no error in the judge’s approach on this issue. 56. Mr Eguae also challenges the judge’s failure to direct the jury in relation to ‘possession’ of the spoofer phone. Mr Bean submits that such a direction was unnecessary and would be confusing to the jury. The principal issue concerning this phone were: (i) whether a spoofer sim had been fitted into the phone in September and October 2017 and, if so, (ii) whether CM had used this device at this time. The issue of who, if anyone was in possession of the phone in May 2018, when it was recovered by the police, was a secondary issue. The Judge gave a careful summary of the prosecution and defence cases in respect of the phone that identified the issues the jury had to determine. 57. We agree with Mr Bean that the direction which Mr Eguae contends for was unnecessary in the circumstances of this case. The reasons for the attribution of the spoofer phone to CM’s use was but one issue for the jury to consider in determining their verdict in this regard. His use of the phone, rather its ‘custody and control’, was a matter of fact rather than a constituent legal element of the conspiracy. 58. Mr Patton also submits that the judge should have directed the jury that Perry Caine, Jaime Caine and Anthony Price were not co-conspirators, and their contact with JA could not have been in furtherance of the conspiracy. We do not see the point at issue in this ground having regard to the manner in which the judge summed up the evidence relating to these individuals: “you are entitled to consider the evidence in relation to those others named, their contacts and the suggested links in your deliberations but the fact that they are not named as co-conspirators means that you must do so with particular care because you should be focusing on whether the prosecution have established a conspiracy amongst themselves rather than with those that are not so named. And as I have already warned you, you must distinguish between acts and words done in furtherance of either conspiracy, if you are sure that they were, and those that are not such contact and acts and are just coincidental to them.” That direction was entirely proper. Conclusion 59. The trial was beset by multiple unforeseen problems but also avoidable difficulties. We have no doubt that the patience of judge, jury, trial counsel and defendants were tested to the limit. Mr Eguae, with some justification, used the term a ‘chaotic landscape’ to describe the evolving picture of police misconduct, asserted interference with expert witness and late disclosure. However, we note the obvious steady hand of the judge in keeping the trial fairly and squarely ‘on the road’. The judge’s jury management was impeccable. The overrun in the case time estimate meant that failures in timely disclosure were able to be accommodated without prejudice to the defendants. The ammunition provided by the disclosed materials was able to be deployed to its full effect before the jury. As we commented more than once during the hearing of these appeals, we are not considering the situation where the issues have only just been discovered and comprise ‘fresh’ evidence. 60. We find no merit in any of the grounds of appeal. The appeals against conviction are dismissed. Appeal against sentence 61. JA was 52 at the time of sentence. Of his previous 13 convictions, two were ‘relevant’ to the extant offences, namely Producing a Controlled Drug in 1986 and Conspiracy to Supply Amphetamine in 2012. The judge sentenced JA without a pre-sentence report. We have regard to s.33 Sentencing Act 2020 , but agree that such a report was unnecessary and is not now necessary. 62. The grounds of appeal against sentence concede that the judge was entitled to conclude that the offending fell into category 1 and that it was aggravated by previous Class B conspiracy, but assert that “the sentence of 21 years was manifestly excessive and no allowance was given for his age, the effect on his dependants and totality”. It is said the sentence was wrong in principle by reason of an unreasonable disparity in sentence, for CM was sentenced to 13 years for playing a significant role throughout the same conspiracy. 63. Granting permission to appeal, the single judge said: “The judge was entitled to form his own view of your role but it may be arguable that he placed you too high in the structure.” 64. In his carefully structured sentencing remarks, the judge concluded that “this was a sophisticated enterprise. It was serious and organised crime” directly connected to the importer of the Class A drugs (Caine). “The totality of the case demonstrated long-term conspiracies to supply industrial quantities of those drugs on a commercial basis. Such was the arrogance and greed that the unlawful trade continued despite the setbacks of two deliveries being intercepted, and that was a significant feature of the case.” The evidence able to be derived from the couriers showed the large scale transportation of cocaine across the country. Whilst the precise quantities of amphetamine were more difficult to assess, a good indication of the levels was the 15 kilograms of cutting agent seized from the ‘transmitting station’. There was a commercial scale of amphetamine coming to the North-East via Caine. The judge determined the offences to fall within above Category 1 for both Class A and B drugs, but in respect of the Class A drugs it was substantially above the starting point of five kilos and was in the order of 20 kilos or more. Additionally, the conspiracies were over a protracted period of time. The criminal property, the subject of the other counts, was a product of this profitable illegal business warranting a proper reflection of the harmful nature of the underlying offending. The appellants were responsible for two types of drugs, although the judge bore in mind totality. He had some regard to JA’s personal mitigation, although his criminal lifestyle had been a matter of personal choice. JA fell to be sentenced for his role as head of an organised crime group. He was in tight control of it. He directed and organised the buying and selling on the most serious commercial scale of the two drugs, with substantial direct links to those both above and below him in the supply chain. He was in close personal contact with Caine. JA gained, and had the expectation of gaining, substantially in a financial sense. He used a number of businesses as cover to appear legitimate and in order to launder some of the proceeds. He clearly had a leading role in the organisation substantially above the range and starting point under Category 1 of the Guidelines. The sums and profits were substantial. Moreover, he had clear involvement and influence over the possession of sums by his co-accused and was involved in converting, transferring, and removing in and around the UK and abroad criminal proceeds at the very top end of Category 4 under the relevant Guideline. His culpability was the highest, Category A. His position was aggravated by the fact that he was a career criminal with a poor record. He clearly did not learn anything from the sentence of imprisonment he received in 2012 for his substantial involvement in the supply of amphetamine. 65. Mr Patton submits that the prosecution did not name Caine as close to, or effectively, the importer, for there was no evidence to do so. Also, it was difficult to assess the quantity of amphetamine involved in that conspiracy. He contends that the differential between the sentences of JA and CM is unwarranted and that insufficient weight was given to JA’s personal mitigation. Discussion 66. As the single judge said, the trial judge was entitled to reach his own conclusions on JA’s role to the criminal standard of proof. He presided over a 22-week trial and we have no basis to disagree with the finding of fact he made. He was not bound by the way the prosecution led their case at trial. We agree with Mr Bean that the quantities of cocaine (all in kilo weights) that was being supplied by the crime group being operated by Geoffrey Caine to JA’s crime group enabled the judge to legitimately describe Caine as “effectively” the importer. 67. Mr Patton realistically concedes that the judge was entitled to place the conspiracies in Category 1, leading role. The starting point for Category A drugs is 14 years with a range between 12 and 16 years. However, the sentencing guidelines state that: “where an operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the offender’s role.” 68. We agree with the judge that the sentence for count 1, as the lead sentence reflecting the additional offences together with JA’s leading role called for a sentence higher than the upper range for a Category 1 A offence. We agree with the judge that JA’s personal mitigation, deserved little credit in the circumstances. 69. The differential in CM’s sentence is easily explicable by the nature of his role (significant), his fewer convictions, and the lesser financial gain. The difference in sentence is justified. 70. JA’s sentence was condign to the circumstances as the judge found them to be. It was neither wrong in principle nor manifestly excessive. His appeal against sentence is dismissed.

```yaml citation: '[2023] EWCA Crim 1010' date: '2023-09-05' judges: - LADY JUSTICE MACUR DBE - MRS JUSTICE THORNTON 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: 2005/5766/B1 & 2005/5765/B1 Neutral Citation Number: [2006] EWCA Crim 1611 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 20 June 2006 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE LEVESON MR JUSTICE IRWIN - - - - - - - R E G I N A -v- EDWARD CALEY-KNOWLES and R E G I N A -v- IORWERTH JONES - - - - - - - - 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 DUGAN appeared on behalf of the APPELLANT CALEY-KNOWLES MISS A WHALLEY appeared on behalf of the CROWN MR J TUCKER appeared on behalf of the APPELLANT JONES MR H REES appeared on behalf of the CROWN - - - - - - - - J U D G M E N T 1. LORD JUSTICE TUCKEY: These two References by the Criminal Cases Review Commission raise the question whether it is ever open to the Court of Criminal Appeal to conclude that a conviction is safe in a case where the judge has directed a jury to convict following the recent decision of the House of Lords in R v Wang [2005] UKHL 9 , which held that such a direction should never be given. 2. In each case the judge directed the jury to convict because the appellant had not raised any defence in law to the indictment he faced and the jury did so without retiring. Is it enough for this court to conclude that the only reasonable and proper verdict which a jury properly directed could have returned was one of guilty, or is such misdirection or irregularity so serious that the conviction must be quashed irrespective of the answer to that question? 3. The first appellant, Mr Edward Caley-Knowles, is now 69. On 19th October 1972 in the Crown Court at Kendal before His Honour Judge Edmondson and a jury, he was convicted on the judge's direction of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 . He represented himself at this trial which lasted one day. He was subsequently sentenced to nine months' imprisonment suspended for two years. 4. On 5th April 1973 his case was listed before the Court of Criminal Appeal (Scarman LJ and Phillips J) when an application which he had made was dismissed. It is not clear whether this was an application for leave to appeal or for an extension of time in which to appeal. At all events it proceeded no further. 5. The background to the offence was that the victim of the assault, Mr Barton, had worked with the appellant on the railways until July 1967 when the appellant was dismissed. The appellant believed that Mr Barton was in some way responsible for his dismissal and all its consequences. 6. On 23rd June 1972, Mr Barton was travelling on a train between Carlisle and Whitehaven. Mr Barton, whose evidence was supported by two passengers on the train, said that the appellant approached him and started shouting and threatening him. Whilst he was still sitting in his seat, the appellant punched him twice in the face causing bruising and cuts to his gum - injuries later confirmed on examination by a doctor. 7. At the trial, after the prosecution had closed its case, the appellant elected not to give evidence. He then addressed the jury for 25 minutes about the circumstances of his dismissal from the railway, at which point the judge said: "Five minutes from now you really will have to start on the case that this jury are hearing, you know." Undeterred, the appellant continued for a further five minutes when the judge intervened again and in the exchanges which followed the appellant admitted that he had punched Mr Barton twice in the face causing him actual bodily harm, that he had not acted in self defence and that it was not an accident. He simply asked the jury not to convict him and maintained that the assault was justified because of Mr Barton's involvement in his dismissal. He added that if he was convicted he would be sent to prison and transferred to Broadmoor. 8. After these exchanges the judge reminded the jury of the ingredients of the offence and said that the appellant's justification for his admitted conduct did not constitute a defence in law because in a civilised country "you are not allowed to go around hitting people because they have misbehaved towards you in the past". He directed them that they had to return a verdict of guilty. What happened can be seen from the transcript when the judge said: "I am taking the matter right out of your hands. I am taking full responsibility for this verdict... If I have made a mistake you need not fear any injustice: it will be put right on appeal... but as far as today is concerned I am directing you to return a verdict of guilty. Members of the jury, will someone please stand as foreman and when you are asked the appropriate question by the Clerk of the Court say 'Guilty'. This I am afraid is a formality as far as you are concerned." The clerk then said: "Will one of your number please stand?" Someone obviously did because he continued: "Mr Foreman, have you reached a verdict on which you are all agreed?" To which the foreman said "Yes". The defendant then intervened saying: "What a complete farce. They are supposed to adjourn to make a decision. It's ridiculous. It's a farce. If this is British justice it stinks. This is a kangaroo court." The clerk said: "Guilty or not guilty?" And the foreman said "Guilty". 9. The other appellant, Mr Iorwerth Jones, is now 72. On 13th September 1994 in the Carmarthen Crown Court before His Honour Judge Lewis-Bowen and a jury, the appellant was convicted on the judge's direction of damaging property contrary to section 1(1) of the Criminal Damage Act 1971 . He was sentenced the same day to 12 months' imprisonment. Again the appellant represented himself in a trial which lasted one day. 10. The facts of the offence were that on 5th July 1994 the appellant, then aged 60, climbed onto the roof of the Llandovery Town Hall and damaged it. He admitted causing the damage as a protest against an incident which had happened in 1983 when he was waiting to appear as a prosecution witness at the Llandovery Magistrates Court, which is in the same building as the Town Hall. He felt he had been deliberately intimidated by the barrister acting for the defendant in that case, a former Mayor of Llandovery, who was alleged to have assaulted the appellant. The case in the magistrates court arose out of a dispute over some land adjoining the appellant's home. That dispute related to the local council's decision to allow a light industrial park to be built on this land. The appellant contended that subsequent use of the land was not light industry and he had been campaigning to expose what he characterised as 'serious corruption' within his local authority on that account. 11. The appellant gave evidence at the trial and called a witness. This evidence elaborated on the reasons for the appellant's protest. 12. Lawful excuse is a defence to a charge of criminal damage contrary to section 1(1) of the 1971 Act . These words are not defined but section 5(2) says that a person charged with such an offence "shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated ... as having a lawful excuse [if]..." (and we summarise) he believed the owner of the property consented to the damage or he was acting to protect his own or other property. 13. At the end of the appellant's case the judge asked the jury to retire and then asked whether there was any reason why he should not direct them that there was no defence. Counsel for the prosecution submitted that there was no legal defence. The appellant submitted, somewhat ambiguously, that he had a lawful excuse but the judge disagreed and said he was going to direct the jury to convict. The appellant was told that he could not address the jury because there was no point in his doing so if the direction was going to be to convict. 14. The judge then told the jury that the appellant had admitted causing the damage and said that he had decided that: "... somebody who does this amount of damage to get an inquiry into some incident about whether or not he was spoken to improperly by a barrister in 1983 or in 1984, that in my judgment as a matter of law could not amount to 'lawful excuse' for doing damage to the slates of the courthouse in Llandovery." He continued: "I am taking the step, therefore, ladies and gentlemen, of directing you to bring in a verdict of 'guilty' because there is no alternative." He then asked one of the jurors to stand and act as the foreman and said: "When the Clerk puts to you the question, would you please return the verdict of 'guilty'." The clerk then said: "Mr Foreman, upon the directions of his Honour do you find the defendant Iorwerth Jones guilty? The Foreman: Yes. The Clerk: And that is the verdict of you all? The Foreman: Yes." The judge then apologised for the fact that the jury might think this to be a rather strange procedure but he said: "... this is the only way that it can be done. In effect, the issue of innocence or guilt has been withdrawn from you, and I take it upon my responsibility." 15. So those are the facts of the two cases which have been referred to us. Before considering the matter further we should like to make it clear that no possible criticism can be made of either of the judges who tried these cases. There were a number of decisions of this court which supported the course they took and in each case it is clear that the judge dealt with a difficult defendant fairly and courteously. 16. We start by reminding ourselves of our jurisdiction and the way in which it should be exercised. Section 2(1) of the Criminal Appeal Act 1968 (as amended) says: "Subject to the provisions of this Act, the Court of Appeal- (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case." 17. In R v Davis and others [2001] Cr.App.R 115 at pages 131 and 132, Mantell LJ giving the judgment of the court said: "The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been 'vitiated by serious unfairness or significant legal misdirection'... Usually it will be sufficient for the Court to apply the test in Stirland (1945) 30 Cr.App.R 40 , which, as adapted by [counsel], might read: 'assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?'" 18. This view was encapsulated in other words by this Court's approval in R v Hanratty [2002] Cr.App.R 30 (para 95), of what Lord Chief Justice Carswell had said in an unreported case in Northern Ireland as follows: "It seems to us that it is now possible to formulate two propositions in respect of irregularities at trial ... 1. If there was a material irregularity, the conviction may be set aside even if the evidence of the appellant's guilt is clear. 2. Not every irregularity will cause a conviction to be set aside. There is room for the application of a test similar in effect to that of the former proviso, viz. whether the irregularity was so serious that a miscarriage of justice has actually occurred." 19. The question for us is which side of this line do the instant appeals fall? We turn first to Wang to see whether it provides the answer to this question. There the appellant was indicted on two counts of having a bladed or pointed article in a public place - a martial arts sword and a Gurkha-style knife. Relying on sections 139(4)(5)(b) of the Criminal Justice Act 1988 , his defence was that he had good reason (including religious reasons) for having these articles with him because he was a Buddhist and practised Shaolin - a traditional martial arts. The judge had ruled that this did not amount to good reason as a matter of law and directed the jury to convict in the way the judges did in our two cases. The House rejected the Crown's submission that exceptionally such a direction could be given where the burden of raising a defence rested on the defendant. In doing so it followed the decision of the majority in DPP v Stonehouse [1978] AC 55 . However, in Stonehouse the House of Lords had upheld the conviction of the defendant despite the judge's misdirection, although this only related to one ingredient of the offences concerned and the jury were left to consider and decide the main issues in the case. 20. In paragraph 16 of the House's opinion delivered by Lord Bingham, he met the criticism encapsulated by the question "If we really wish juries to give untrue verdicts why do we require them to be sworn?" by saying that experience in England and Wales showed that juries were generally conscientious and did their best to follow judge's directions. Lord Bingham added: "... the acquittals of such high profile defendants as Ponting, Randle and Pottle ... have been quite as much welcomed as resented by the public, which over many centuries has adhered tenaciously to its historic choice that decisions on the guilt of defendants charged with serious crime should rest with a jury of lay people, randomly selected, and not with professional judges." This passage gives some support for the proposition that a defendant does have a constitutional right to what lawyers would characterise as a perverse verdict. 21. In paragraph 17 Lord Bingham said: "Had the judge left the present case to the jury and directed them in the ordinary way, it seems very likely that they would have convicted. There could then have been no effective appeal. As it is, the Court of Appeal's judgment highlights the dangers of judicial intervention. It may well have been 'very far from clear' what the appellant's intentions were. The nature and extent of the appellant's religious motivation had been the subject of evidence. The appellant's evidence of not wanting to leave the weapons at home with no one to look after them may well have given rise to nuances ... not recognised by the judicial mind. These were pre-eminently matters for evaluation by the jury. Belief that the jury would probably, and rightly, have convicted does not in our judgment entitle us to consider this conviction to be other than unsafe when there were matters which could and should have been the subject of their consideration. We would accordingly allow the appeal, quash the appellant's conviction and answer the certified question by saying that there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty." One can well understand this conclusion on the facts of Wang but we do not think this passage supports the proposition that in every case where a direction to convict is given the conviction should be considered unsafe. Lord Bingham does not ask the Davis question in terms or any similar question or base his conclusion upon any assessment of the seriousness of the misdirection or irregularity involved in that case. 22. Before us the Crown in both cases have relied on the decision of this court in R v Kelleher [2003] EWCA Crim. 3525 . This was another case of criminal damage in which the appellant, who had decapitated a statue of Margaret Thatcher, claimed that he had a lawful excuse for doing so because he wanted to protect his young son from the effects of globalisation. The trial judge directed the jury that this did not amount to a lawful excuse as a matter of law. He explained why and then said: "I must direct you that there can only be one verdict in this case and that is one of guilty." But he subsequently asked the jury to retire, which they did, and in due course they came back with a guilty verdict. On appeal to this court, Mantell LJ said: "44. Now whilst it is true that any other verdict might be regarded as perverse, and the judge would certainly have been entitled to say 'you may think that there can only be one verdict in this case and that is one of guilty', it can hardly be denied that the words used could be taken as a direction to convict. We can well understand ... how this conscientious judge came to express himself as he did and we certainly do not criticise his withdrawal of the defence of 'lawful excuse'. But in our view the general issue of guilt or innocence should have been left to the jury and the words used crossed the line which separates forceful comment from a direction to convict." 23. Mantell LJ then went on to consider whether the conviction was safe, noting that the evidence was truly overwhelming, that the appellant had admitted the constituents of the offence and that no defence was available to him and so, following a proper direction, a verdict of guilty was, or should have been, inevitable. 24. But the court identified a problem which Mantell LJ identified in para 46 where he said: "As has already been noticed, so long as the defendant remains in charge of the jury only the jury can return a verdict of guilty or not guilty. Where there has been a direction to convict, therefore, can it be said that the verdict returned is the voluntary and therefore the true verdict of the jury and, further, if not, in such a case can it be said that there has been a conviction, let alone a safe conviction?" After referring to the decision in Stonehouse and the Davis test, the court concluded in paragraph 52: "Applying that test and following the powerful precedent provided by the House of Lords in R v Stonehouse and notwithstanding the logical difficulty to which we have referred, we conclude that the conviction of Mr Kelleher is to be regarded as 'safe'." So the appeal against conviction was dismissed. 25. The appellant sought leave to appeal the certified question: "Can a verdict of guilty ever be considered safe if it results from a direction to convict?" Leave to appeal was refused by this court and by the House of Lords. Kelleher is referred to in the opinion in Wang (see para 14) but not for the purpose of considering that certified question. 26. There is clearly a distinction between our cases and Kelleher which is that in Kelleher the jury were left to make a decision and retired in order to enable them to do so. In our cases, as the facts which we have related show, the judges said in terms that they had taken the decision away from the jury who were given no opportunity to retire and consider the matter for themselves. We think these are crucial distinctions. The decision in each of our cases was not in reality made by the jury at all. In each case it was made by the judge. Following clarification of the law in Wang, this must, we think, be characterised as a significant legal misdirection or a material irregularity, even though the evidence of the appellant's guilt in each case was clear. 27. It follows that in these two cases we are driven to conclude that the convictions were unsafe and must be quashed, despite the fact, as we conclude, that neither of them had any defence as a matter of law to the offences with which they were charged. 28. But our decision is confined to the facts of these two cases. If we were having to decide Kelleher today we think we would have reached the same conclusion as this court did in 2003 and for the same reasons. We were not told whether there were any other cases dependent upon our decision, but we make it clear it is not to the effect that in any case where there has been a direction to convict the conviction should be quashed because it is unsafe. We are only deciding that a conviction will be unsafe where, as here, the issue as to the defendant's guilt has been completely taken away from the jury. 29. Finally, we should add this. A criminal court has always had the power to exclude irrelevant evidence and argument. The Criminal Procedure Rules 2005 include as an overriding objective "dealing with the case efficiently and expeditiously". By Rule 3.2(1) the court must further that objective by actively managing the case. That of course includes the exercise of the power to which we have referred during the course of a trial. Robust but reasonable use of this power is the way to ensure that a trial is not side-tracked into consideration of matters which are not as a matter of law relevant to the issues which the jury has to decide. 30. MR TUCKER: Have your Lordships considered the matter of a retrial for the appellant Jones? 31. LORD JUSTICE TUCKEY: A retrial is quite out of the question, we would have thought. 32. MR JUSTICE LEVESON: It is unusual for the appellant to apply. The Crown sometimes do. 33. MR TUCKER: Indeed, my Lord, I just wondered whether the court had considered the matter. 34. LORD JUSTICE TUCKEY: We have considered it, only to dismiss it very summarily. 35. MR DUGAN: There is no such invitation after 34 years on behalf of Mr Caley-Knowles.

```yaml citation: '[2006] EWCA Crim 1611' date: '2006-06-20' judges: - LORD JUSTICE TUCKEY - MR JUSTICE LEVESON - MR JUSTICE IRWIN ```

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

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 NCN: [2021] EWCA Crim 1895 No. 202101536 A1 Royal Courts of Justice Thursday, 28 October 2021 Before: LORD JUSTICE POPPLEWELL MR JUSTICE DOVE HIS HONOUR JUDGE POTTER REGINA V CRAIG PETER NEWITT __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] _________ MS N. STEERS appeared on behalf of the Appellant. MR S BURCH appeared on behalf of the Respondent. _________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 The applicant seeks leave to appeal against a total sentence of 57 months for two burglaries and associated offences of theft and fraud. His application was referred by the single judge. 2 The first burglary occurred on 19 July 2019 at a property in Wednesbury, West Midlands, which was the home of Mr and Mrs Taylor. The burglary took place at night whilst Mr and Mrs Taylor were in their home. The applicant had entered the property through a conservatory window which had been left ajar by using a ladder found in the garden. The conservatory window was not visible from the road. Once inside the property the applicant stole a car key to a Land Rover Discovery; two purses containing bank and store cards and £190 in cash; a leather wallet containing store and bank cards and £400 in cash; two driver’s licences; a television; a PlayStation 3; two mobile phones; and a rucksack containing £15 in cash. He used the car keys to steal the Land Rover, which was worth approximately £31,500 and was never recovered. He used cards stolen in the burglary to purchase goods at Premier Store for £56 and unsuccessfully attempted to use them to buy eight bottles of alcohol at Asda. 3 The second burglary occurred at another house in Wednesbury on 2 August 2019 at about 4.00 a.m. when the 69-year-old owner, Mrs Colbourne, was alone in bed. The applicant entered by the unlocked front door and shouted at Mrs Colbourne "Where's your money?" When the applicant was told there was no money he began searching the property and found £900 in cash. The applicant then accused the victim of lying and threatened to hit her dog which had been barking. The victim pretended to have a heart attack but the applicant told her she was having a panic attack and got her a drink of water before continuing his search of the house. The applicant stole two holdalls; £900 in cash; a gold watch; a mobile phone; alcohol; and a car key to a Suzuki motor vehicle. The applicant subsequently left the property, taking the Suzuki. As a result of a press release, the Suzuki was seen on CCTV and the applicant was identified as the driver. He was thereafter arrested and the Suzuki was recovered by the police. 4 The applicant pleaded guilty to the offences involving use of the cars at the PTPH, and to the burglary and theft offences three months later. 5 Close in time to these burglaries, the applicant committed other burglaries and thefts on 23 July 2019, and on or shortly after 25 July 2019, for which he had been separately sentenced on 29 January 2020 to 43 months' imprisonment, together with a consecutive sentence of seven months' imprisonment for dangerous driving. He was serving that 50 month sentence at the time when the Recorder imposed the sentences with which we are concerned some 15 months later. The Recorded determined that the 57 months sentence which he imposed should commence immediately, with the effect that it ran concurrently with the 50 month sentence which the applicant was already serving. 6 The applicant was 41 at the date of sentence and had a very bad record. He had 24 convictions for 62 offences. They included convictions on eight separate occasions for a total of 12 burglaries, as well as other offences of dishonesty, offences of violence, and driving offences. He therefore attracted the minimum three year sentence required by s.314 of the Sentencing Act 2020. 7 In sentencing the Recorder outlined the facts of the index offending. He noted the awful effects that the burglaries had had upon both families, as was revealed in the victim impact statements. He referred to the applicant's previous convictions. He noted that the applicant had been sentenced to a total of 50 months' imprisonment on 29 January 2020 for the offences which on the information before him appeared to include three counts of dwelling house burglary. He observed that those had occurred at around the same time as the index offences for which he was now sentencing the applicant. He was told that the applicant was now remorseful and accepted his guilt. He was told that the index offences he was concerned with had occurred when the applicant had slipped back into drug use. He was told that in a relation to the burglary of Mrs Colbourne's property the applicant had seen the door ajar and entered the property. The applicant apologised for the trauma caused and said he was now drug-free in custody. The Recorder had read a letter regarding the applicant's conduct in custody. We also have received a recent further letter from the prison suggesting that he has been behaving as a model prisoner. 8 The Recorder remarked that both burglaries fell into category 1 of the Sentencing Council Guideline with greater harm as the occupiers had been at home when the applicant was there. There had been theft and damage to the property. There had been significant loss to the victims and there had been untidy searches. In the Recorder's view there had been higher culpability. It had been suggested that the offending had not been planned, but the Recorder did not accept that. The applicant had clearly been looking at houses with cars on the driveway and in one of the burglaries the entry point had not been visible from the front of the house. The offending therefore had the hallmarks of both greater harm and higher culpability. Aggravating features included the fact that one of the occupiers had come into contact with the applicant. The offences had been committed at night and there had been significant loss of sentimental items. In the Recorder's view the most serious offence was the burglary of Mrs Colbourne's house, which was the subject matter of Count 5. He therefore said he would pass a sentence on that count which reflected the overall offending and pass concurrent sentences on the remaining counts. The sentence on Count 5, reflecting the fact that the applicant was a professional burglar, would have been a sentence of six years' imprisonment after trial. The Recorder reduced that sentence by 20 per cent to reflect the applicant's guilty plea, which gave a sentence of 57 months' imprisonment on Count 5. The sentence on Count 1 for the Taylor burglary was the minimum three years less the discount of 20 per cent for plea, with a sentence of 12 months for the theft of the Land Rover and one month each for the offences of using or attempting to use the stolen cars. All sentences were ordered to run concurrently with the each other. The Recorder remarked that he would have been justified in making the sentence run consecutively to the 50 months sentence which the applicant was currently serving. However, he said that having regard to the principle of totality the total sentence of 57 months' imprisonment would run from the date of sentence, so as in effect to run concurrently with the remainder of the 50 months sentence. 9 The grounds of appeal for which leave is sought are that: (1) the starting point of six years for the Colbourne burglary offence on Count 5 was too high; (2) the overall sentence gave insufficient consideration to the principle of totality; (3) the sentence of 57 months' imprisonment was manifestly excessive; (4) insufficient credit was given for the applicant's guilty pleas and other mitigating factors; (5) the total sentence passed outweighed the applicant's criminality in this case and was unnecessarily in excess of the sentencing guidelines. 10 In her submissions before us, Ms Steers has focused on the ground of totality. In relation to the other grounds we entirely agree with the single judge who said this: "Your first criticism of your sentence is that the notional after trial sentence of 6 years for count 5 is too high. This, however, ignores the fact that the Recorder expressly stated that the sentence on that count was to reflect the totality of the offending he had to deal with which included two very serious dwelling house burglaries committed when the occupiers were at home and the theft of two cars one of which was never recovered. A 6 year total term after trial for the offences on this indictment was by no means manifestly excessive in light of all the aggravating features present and the relatively restricted mitigation available to you. From this sentence you were given appropriate credit for your plea." 11 The single judge went on to say that the real issue was whether the sentences imposed on 29 January 2020 and 22 April 2021, when taken together, were manifestly excessive for the totality of the offending dealt with on those dates. He referred the matter to this court because it was unclear how long the applicant had been on qualifying remand before the sentence on 29 January 2020, and therefore how much of a reduction for totality was reflected in the Recorder's decision to make the sentences run concurrently. 12 We now have the benefit of the prosecution opening of facts and the sentencing remarks on the occasion of the sentencing on 29 January 2020, which were not available to the Recorder in April of this year. It is apparent from that material that the applicant had been on remand in custody for the offences for which he was sentenced on 29 January 2020 since 6 August 2019 and on qualifying curfew for nine days before that. 13 Accordingly, by 21 April 2021 when he was sentenced for the index offences, the applicant had effectively served some 20 ½ months of his 50 month sentence, from which he would otherwise have been released on licence four and a half months later. He had served the custodial element equivalent to a sentence of approximately 41 months. The sentence passed by the Recorder was therefore equivalent to a total sentence of approximately 98 months (that is 41 months plus 57 months) for all of the offending. This, it is submitted, would have been manifestly excessive for the totality of the offending had it all been sentenced at the same time. 14 The Sentencing Council Guideline on totality provides that where an offender is serving a determinate sentence for offences and the court is considering sentence for offences committed before the original sentence was imposed, it should consider what the sentence length would have been if the court had dealt with all the offences at the same time and ensure that the totality of the offences is just and proportionate in all of the circumstances. If it is not, an adjustment needs to be made to the sentence imposed on the second occasion. This approach does not undermine the legislative policy behind minimum sentences for three strike burglaries even where it results in a sentence of less than three years on the second occasion: see R v Sparkes [2011] EWCA Crim 880 ; [2011] 2 Crim App R (S) 107. 15 Had the Recorder taken this approach, he would clearly have been justified in concluding that in addition to the 57 months for the offences which he was considering, there would have had to have been added a consecutive sentence of seven months for the dangerous driving offence which was distinct from the burglaries. He would then have had to consider what additional sentence would be appropriate for the burglaries which he was not considering, taking into account totality. 16 Before the Recorder it appeared from the PNC record and a West Midlands Police summary that there had been three dwelling burglaries which had previously been sentenced on 29 January 2020, about which he was given relatively sparse information. As we have said, as a result of the direction of the single judge, we now have the benefit of the prosecution opening of the facts and sentencing remarks on that occasion, from which it is apparent that there were only two burglaries sentenced on that occasion which gave rise to concurrent sentences of three years and 43 months respectively. It was those concurrent sentences of 43 months, together with the consecutive sentence of seven months for dangerous driving, which gave rise to the total 50 month sentence imposed on 29 January 2020. 17 Details of the two burglaries sentenced on that occasion are as follows. There was a burglary on 23 July 2019 which involved a forced entry during the course of the day. The house had been “trashed”. Items stolen included two televisions, an Xbox, a PlayStation, two laptops, a handbag and some jewellery of limited value. The applicant left with some of the stolen goods and returned by car 40 minutes later in order to collect the rest of the items which he stole from the property. The victim personal statements showed that it had had a dramatic adverse impact on the couple who were living there. 18 The second burglary occurred in a secured detached dwelling while the owner and his wife were away on holiday. They had left on holiday on 25 July and the burglary was discovered by their son who was asked to go to the property to collect some things. The applicant made a forced entry by a sophisticated operation of carefully removing a pane of glass. He made an untidy search in many of the rooms. He stole items of jewellery, including rings, necklaces and a gold choker, some of which had been handed down by late family members and were of high sentimental value. He also took a number of watches, £200 in cash, two handbags and the keys to the Audi V8 motorcar which was parked on the drive. He drove the Audi V8 away. The car was later recovered. He also took the keys to a second car parked on the drive, a Mercedes, which necessitated the owner getting the locks changed when he returned from holiday. 19 If sentenced together with the index offences, these additional burglaries would in our view have justified additional consecutive sentences of at least 18 months each after giving credit for discount for plea and taking account of totality. That would have resulted in a total sentence, had all the offences been sentenced at the same time, of at least 100 months (that is to say 57 months, plus seven months for the dangerous driving, plus 18 months each for the two other burglaries). 20 It follows that the sentence passed by the Recorder which had the same effect as a total sentence for all the offending of approximately 98 months took sufficient account of the principle of totality and was not manifestly excessive. 21 The application is therefore dismissed. __________

```yaml citation: '[2021] EWCA Crim 1895' date: '2021-10-28' judges: - LORD JUSTICE POPPLEWELL - MR JUSTICE DOVE - HIS HONOUR JUDGE POTTER ```

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

Neutral Citation Number: [2015] EWCA Crim 1324 Case No: 201405091/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 1st July 2015 B e f o r e : LADY JUSICE MACUR DBE MR JUSTICE WALKER HIS HONOUR JUDGE ZEIDMAN QC (Sitting as a Judge of the CACD) Between - - - - - - - - - - - R E G I N A v NICOLA LEHAIR - - - - - - - - - - - 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 McNally appeared on behalf of the Appellant Mr M Evans appeared on behalf of the Crown - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE MACUR: The appellant pleaded guilty to one attempted robbery and one robbery. 2. The facts of the offences need scant reference only. At 14.37 on 30th April 2014 the appellant robbed £2,375 from the Yorkshire Bank in Grantham. At approximately 4.15 the same day she deposited £1,200 into her own bank account before transferring £1,100 into her husband's bank account. Two weeks later she attempted to rob another bank in Grantham. She was sentenced to 2 years' imprisonment concurrent on each count. There is no appeal against this part of the sentence and in fact the appellant is now released. 3. On 2nd October 2014 the amount of benefit that she acquired from her criminal conduct was assessed as £2,375. A confiscation order in the sum of £1,140 was imposed under section 6 of the Proceeds of Crime Act 2002 , to be paid within 6 months or in default she was ordered to serve 30 days' imprisonment. She appeals against the confiscation order with leave of the single judge. 4. This appeal concerns the statutory construction of section 77(5) of the Proceeds of Crime Act 2002 . Its sole ground is that the Recorder wrongly concluded that the appellant had made a tainted gift to which section 77 applied. In doing so he is said to have impermissibly ignored the clear qualifying provisions in the 2002 Act , and that his use of the preamble to the statute as an aid to statutory construction was wrong. 5. The Recorder proceeded under section 6 of the 2002 Act . It was accepted that the appellant had benefited from her criminal conduct in the robbery of 30th April 2014 in the sum stolen. There is no issue that the recoverable amount for the purpose of section 6 is an amount equal to the appellant's benefit from the conduct concerned and that the court must make an order for that amount unless the appellant shows that the available amount is less than the benefit achieved (section 7(2)). The available amount includes all tainted gifts. The prosecution said that the transfer to the appellant's husband was a tainted gift. The money clearly derived from the offence - the appellant's bank account was in debit prior to the robbery. 6. The Recorder found that the appellant did not have a criminal life-style and in these circumstances was obliged to have regard to section 77(5) of the Act, that is: "A gift is tainted if it was made by the defendant at any time after- (a) the date on which the offence was committed;..." 7. The arguments made in the court below and advanced to us today, may be summarised as follows. Mr McNally, on behalf of the appellant argues for a literal construction of section 77(5)(a) . He says there is no need to apply a gloss, or to make any substitution or addition to make clear what the draftsman intended; that is, the section does not cover the transfer of any gift at any time on the day during which the offence concerned was committed, only those on days subsequent. Mr Evans, on behalf of the respondent argues that Parliamentary intent is clear and that the date referred to in section 77(5)(a) must refer to the actual time of the offence from which the benefit was obtained. 8. The Recorder ruled in favour of the prosecution arguments, finding that if the defence argument was correct it would drive a coach and horses through the purpose of the legislation which could not be what Parliament had intended. He decided that any date on which an offence is committed, incorporated the time before the offence, the time of the offence and the time after the offence. Therefore, 30th April 2014 was not only the date on which the offence was committed but also a date after which the offence was committed. The judge said that the words "at any time after" must refer to the commission of the offence because the purpose of section 77(5)(a) is to deal with cases where the court has decided the defendant does not have a criminal life-style. Consequently section 77(5)(a) referred to a gift made at a time later than the commission of the offence whether or not it was made on the date the offence was committed or on some subsequent date. 9. Mr McNally contends that the relevant legislation, drafted in clear and unambiguous terms mean that we should construe "date" as deliberately identifying a particular date to the exclusion of all others. The respondent's arguments amount, he says, to an impermissible rewriting of the legislation because they do not like the outcome. There is no need, he says, to have recourse to explanatory notes which add nothing. The starting point is the Act. The range of the Act describes it purposes. He relies upon the speeches of Lord Nicholls and Lord Simon in the case of Stock v Frank Jones (Tipton Ltd) [1978] 1 WLR 231 to the effect that courts should be reticent to interfere with the intent of Parliament as indicated by the clear language used by the draftsman. 10. He goes on to refer in particular to the speech of Lord Scarman at page 238(g)-239(e): " The words used by Parliament admit of no ambiguity, and, for the reasons given by [Viscount Dilhorne], I would dismiss this appeal. I wish, however, to add a few words of my own on the 'anomalies' argument. Mr. Yorke for the appellants sought to give the words a meaning other than their plain meaning by drawing attention to what he called the 'anomalies' which would result from giving effect to the words used by Parliament. If the words used be plain, this is, I think, an illegitimate method of statutory interpretation unless it can be demonstrated that the anomalies are such that they produce an absurdity which Parliament could not have intended, or destroy the remedy established by Parliament to deal with the mischief which the Act is designed to combat. It is not enough that the words, though clear, lead to a 'manifest absurdity': per Lord Esher M.R. in Reg. v. Judge of the City of London Court [1892] 1 Q.B. 273 , 290. Lord Atkinson put the point starkly in Vacher & Sons Ltd. v. London Society of Compositors [1913] A.C. 107 , 121: 'If the language of a statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results.' The reason for the rule was given by Lord Tenterden C.J. in Brandling v. Barrington (1827) 6 B & C 467, 475 in a passage in which he was considering the so-called 'equity of a statute': he commented. 'that it is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to them.'" 11. The arguments that he advances in this case on the ‘gross anomaly’ point are as follows: 1. Based on his research, this is the first time that in 12 years a case on this particular provision has been referred to the Court of Appeal; 2. There are other means of obtaining the same result, whether by the judge applying common law principles of ownership or else the prosecution, in appropriate circumstances, indicting the defendant differently; 3. Section 22 of the 2002 Act itself provides for a reconsideration of the available amount and there are a number of other provisions dealing with recovery. 4. The penal aspect of the order is reflected in the term ordered to be served in default in this case and open to the court in all others. Further, he argues that the Act is ineffective in the recovery of the proceeds of crime by reference to statistics showing a low proportion of monies recovered under the scheme. (In this last regard, and with due respect to the conscientious research of Mr McNally, we have not found those particular statistics to have been of great assistance to the arguments that we must consider.) He goes on to stress that a comparison of this scheme and previous legislation quite clearly suggests that section 77(5)(a) was deliberately drafted. He relies on the fact that this was a recent Act and that neither the Act nor the language used has fallen into desuetude. He refers specifically to Criminal Justice Act 1988 section 74(9) which makes clear that a gift is caught if it was made at any " time " after the commission of the offence and the court considered it appropriate in all the circumstances to take that gift into account; the Drug Trafficking Act 1994 provisions that mean gifts were caught at any time if received in relation to drug trafficking or directly or indirectly representing such property. 12. The thrust of his argument is thus, that given the use made by draftsmen of the exact terms in previous and not too distant legislation, the fact that it was not adopted in this quite clearly shows a different Parliamentary intent that we should respect. 13. Mr Evans, in response, reminds us of the overall aim of the Proceeds of Crime Act by referring, not only to the preamble as did the sentencing Recorder, but also to the judgments of Lord Neuberger in the recent case of Ahmad . 14. We, note that the introduction to the 2002 Act states as follows: "That this is an Act to... provide confiscation orders in relation to persons who benefit from criminal conduct and ... to allow the recovery of property which is or represents property obtained through unlawful conduct ..." 15. The case of Ahmad [2014] UKSC 36 shows, he says, that the starting point in the judgments of the Court is that the overall aim of Part 2 of POCA is "to recover assets acquired through criminal activity both because it is wrong for criminals to retain the Proceeds of Crime and in order to show that crime does not pay." He identifies the different terminology used in earlier statutory regimes, as did Mr McNally ,but he submits that the change in terminology that is obviously present in the statutory provisions does not reflect a change in Parliamentary intent. He argues that "the date on which the offence concerned was committed" was not intended by Parliament to give criminals "a sporting chance" to get rid of their assets, criminal or otherwise, by midnight on the day of the offence by gifting them to third parties. He refers to the purposive and consistent statutory construction that is called for where, despite the plainest of language, it is clear that an anomaly is caused. In this respect he refers to the judgments of the Supreme Court in the case of R v Waya [2012] UKSC 51 where, in the combined judgments of Lord Walker and Hughes, it is said: 16. "Although the statute has often been described as 'draconian' that cannot be a warrant for abandoning the traditional rule that a penal statute should be construed with some strictness. But subject to this and to HRA, the task of the Crown Court judge is to give effect to Parliament's intention as expressed in the language of the statute. The statutory language must be given a fair and purposive construction in order to give effect to its legislative policy." In the later case of Ahmad , already cited Lord Neuberger was to say at paragraph 38: "When faced with an issue of interpretation of the 2002 Act , the court must, of course, arrive at a conclusion based both on the words of the statute and on legal principles, but it is also very important to bear in mind the overall aim of the statute, the need for practicality, and Convention rights." 17. He was also to refer to Stock v Frank Jones Tipton case, arguing that in fact Mr McNally, was wrong to rely upon one part of a speech taken out of context. He argues, that as was recognised there, in the case of an obvious or gross anomaly the courts must act if they are satisfied that the draftsman’s intent is not accurately defined within the plain words of the provision. 18. We note that there is no assistance to be gained with the interpretation of section 77(5)(a) within the Act itself. We do note the difference in the provisions relative to those who are found to have a criminal life-style and those who do not. We are also struck by the fact that if a court does not make a decision as to whether or not a defendant has a criminal life-style, that section 77(1) to (3) apply as opposed to section 77(5) . This obviously produces an anomaly in its own right. A strict interpretation of the same would mean that a court which declined to make a decision as to criminal life-style would be entitled to regard a gift as tainted and subject to the purview of the court at any time after the commission of the offence, rather than on a date after the commission of the offence. 19. We are satisfied that a literal interpretation of section 77(5)(a) is anomalous to the explicit purpose of the Act. It could not have been intended that criminals have a day's grace to dispose of their assets or to require either the prosecution, the enforcement agencies or the court to devise a scheme, outside the Act, to catch relevant assets. A literal interpretation of section 77(5) would require this. 20. In argument Mr McNally was asked to address a factual scenario somewhat different to the one that presents in this case. What if, he was asked, the appellant had committed the offence late at night and unable to access her bank account had given herself a period of lying low and had made the deposit within her bank account and onward transfer minutes after midnight had struck? That, he said, would mean that that particular disposal would have been caught by the statutory provision because it would have been made on a date after the date on which the offence had been committed. 21. It cannot be right that the Parliamentary draftsman would have encompassed within section 77(5)(a) the potential different treatment of any asset dependent on which time of the day an offence was committed. We see this particular example, extreme though it may be, as demonstrating what could rightly be categorised, and which Mr Evans invites to conclude, was the absurdity or gross anomaly of a literal translation of section 77(5)(a) as contended for by Mr McNally. 22. We have no hesitation in endorsing the argument that there must be a purposive construction of the provision and in doing so, the subsection must read as though the date upon which an offence is committed must refer to the actual time of commission and after which any tainted gift will fall for the consideration in the court’s powers of confiscation. 23. In this respect and without the necessity to define "date" as before, during or after an offence, we consider that the Recorder's decision was right. For those reasons this appeal is dismissed. The confiscation order made stands. All necessary recovery procedures will take place in the normal course.

```yaml citation: '[2015] EWCA Crim 1324' date: '2015-07-01' judges: - MR JUSTICE WALKER - HIS HONOUR JUDGE ZEIDMAN QC ```

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Neutral Citation Number: [2009] EWCA Crim 870 No: 200900782 A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 3 April 2009 B e f o r e : LORD JUSTICE SCOTT BAKER MRS JUSTICE RAFFERTY DBE MR JUSTICE BEATSON - - - - - - - - - - - - - - - - R E G I N A v ANN LARKE - - - - - - - - - - - - - - - - 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 I.A Rose appeared on behalf of the Appellant Miss R Bowskill (High Court Advocate) appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: Ann Larke is aged 74, and on 9 January 2009 she pleaded guilty in the Magistrates' Court to two offences of causing death by careless driving, contrary to section 2B of the Road Traffic Act 1988 (as amended). She was committed for sentence to the Crown Court, and on 5 February of this year, was sentenced at Southampton by HHJ Hope to two years' imprisonment on each count concurrently, and disqualified from driving until she takes an extended re-test. She appeals against that sentence by the leave of the single judge. 2. The facts can be quite shortly stated. The tragic incident occurred on the A326 on Saturday morning of 23 August of last year, when the two deceased, 29 year-old Terry Stubbs and his 11 year-old step daughter Shannon were on a motorbike that collided with the appellant's Toyota Corolla. The appellant had parked her car in a lay-by and taken her dog for a walk. She returned to the car and endeavoured to perform a U-turn out of the lay-by, pulling out with the intention of going back in the direction from which she had come. This was a manoeuvre that she had carried out on many previous occasions. It was not a manoeuvre that was prohibited at the time, but it was obviously a manoeuvre which, if it was going to be carried out, required a very careful look in both directions before doing so. 3. As she pulled out, she pulled into the path of a Honda Civic. The driver of the Honda managed to brake just in time and swerved to the left to avoid colliding with the appellant's vehicle. However, the deceased on the motorbike behind the Honda did not have the time or opportunity to avoid a collision because the rider was left with nowhere to go. He hit the appellant's Toyota, and in the impact, the rider, Mr Stubbs, and Shannon were thrown from the bike and tragically both died at the scene. At the time of the collision, the weather was fine and dry and it was daylight. There were no contributory defects found in any of the vehicles involved. The speed limit on the road was the national one of 60 miles per hour, and both the Honda and the motorbike were indisputably travelling within that limit. 4. The appellant has an unblemished driving record going back to 1959. A pre-sentence report described her as a divorced woman living on her own in a bungalow that she owned in Hythe. Until she retired in 2005 she had worked with adults with learning disabilities. She spent some time driving them about in a minibus. Since retiring, she had done some voluntary work, and with three sons and five grandchildren she was a part of a very close-knit family. 5. She described her act of pulling out from the lay-by as a terrible misjudgment on her part. And so it was. She could offer no further insight into why the accident occurred. She knew the road well, and said that she had completed the same manoeuvre successfully on many previous occasions. 6. The author of the pre-sentence report describes her as genuinely devastated by what she has done, and that she accepts responsibility and expresses great remorse for causing the terrible collision which resulted in the death of two young people. The author of the pre-sentence report points out that although the appellant's lack of concentration and carelessness on that day had tragic consequences it was not an act of malice. She did not set out to drive carelessly. Rather, what the appellant did was an act of omission in failing to concentrate properly and to ensure that the main road was clear. Nevertheless, it was, in this court's judgment, carelessness of a high order, approaching, as the judge found, dangerous driving, where the standard of driving falls far below that of a reasonably competent driver. 7. Motor vehicles can, as this case tragically shows, be lethal instruments. It behoves anyone who drives a car, whatever their age and history, to ensure that they concentrate and are careful. Lord Devlin said half a century ago that part of the purpose of punishment is the emphatic denunciation by the community of a crime. Parliament has recently decided that when someone is killed as a result of careless driving, that significantly increases the appropriate penalty. The maximum sentence for causing death by careless driving is five years' imprisonment. Prior to 4 August 2008, when the new provision came into force, careless driving, whatever the consequences, did not attract the possibility of a prison sentence. 8. In this case, tragically, there were two deaths. As the Sentencing Guidelines Council has pointed out, where more than one person is killed, that will generally aggravate the seriousness of the offence because of the increase in harm. 9. Mr Ross, who has appeared for the appellant, points out that that is especially so in cases where death is foreseeable, and in particular where it is foreseeable to the perpetrator of the offence that more than one person might be killed, but that that was not the position in the present case. 10. The Sentencing Guidelines Council have divided the offence of causing death by careless driving into three categories, the most serious of which is where the offence is of careless or inconsiderate driving falling not far short of dangerous driving, which is the category into which the judge found that this case fell. Here the starting point is 15 months' custody, and the range, 36 weeks at the lower end to three years at the upper end. The judge put the case into this category, although it can be pointed out that the carelessness was momentary rather than continuing. But, on the other hand, there were two deaths. 11. The figures that we have mentioned from the Sentencing Guidelines Council's advice relates to the penalties to be imposed following conviction after a plea of not guilty. In this case, there was a plea of guilty at the earliest opportunity, considerable remorse on the appellant's part and an impeccable driving history. The appellant's age, as the judge accepted, was likely to make prison particularly harsh for her. We have no up-to-date prison report, but her counsel tells us that she is coping. There was, therefore, in the present case considerable mitigation to be balanced against what this court sees as the one aggravating feature of the offence, namely that there was a second death. 12. These cases are not only tragic, but present very, very difficult sentencing problems for the judge who is called upon to impose a sentence. We have seen, as did the judge, the victim impact statements from the deceased's family, and one cannot help but be greatly moved by them. 13. We have come to the conclusion that the sentence that was imposed by the judge, which was right at the upper end of the bracket, being one of two years following a plea of guilty (that is the bracket for the most serious category of causing death by careless driving) was, in the circumstances, manifestly excessive. 14. We have considered whether any assistance might be found in authorities. There are no authorities as yet from this court in relation to this offence, at least as far as we and counsel are aware, and it seems to us that the penalties imposed for other offences are in the circumstances only of limited assistance, if any, and we have to concentrate on the advice given by the Sentencing Guidelines Council. We think that two years' immediate custody was outside the appropriate range of sentence in this case. In our view, the dreadful consequences of the appellant's carelessness should be marked by a sentence of imprisonment, and that that is in accordance with the view taken by Parliament in enacting this new offence. But in the particular circumstances, bearing in mind all the mitigation, a suspended sentence would have been appropriate. 15. In our judgment, the right sentence in this case is one of 39 weeks' imprisonment, suspended for a period of 12 months. The order of the court about taking an extended driving test before being permitted to have a licence again will stand, although we note that the appellant has said that she never intends to drive a motor vehicle again. 16. Accordingly, the appeal will be allowed to this extent. 17. We are told that there has to be some form of requirement under the legislation. She has to live at her address, which is to be notified. I take it, it will be the same address she will be living at as before she was sentenced on 5 February? 18. MR ROSS: Yes. My Lord, I am grateful. Can I just point out one thing? I think my Lord in my Lord's judgment said "5 October", rather than "5 February". 19. LORD JUSTICE SCOTT BAKER: I meant to say "5 February". 20. MR ROSS: And would the court consider an appellant's costs order in this case? 21. LORD JUSTICE SCOTT BAKER: Yes. Thank you. 22. MR ROSS: I am very grateful. 23. LORD JUSTICE SCOTT BAKER: And the residence requirement will run for the period of the suspended sentence. 24. Thank you both very much for your assistance.

```yaml citation: '[2009] EWCA Crim 870' date: '2009-04-03' judges: - LORD JUSTICE SCOTT BAKER - MRS JUSTICE RAFFERTY DBE - MR JUSTICE BEATSON ```

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Neutral Citation Number: [2009] EWCA Crim 1063 Case No: 200901239 A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 14th May 2009 B e f o r e : MR JUSTICE ANDREW SMITH MR JUSTICE DAVIS - - - - - - - - - - - - - - - - - - - - - R E G I N A v ANTONY DOUGLAS COX - - - - - - - - - - - - - - - - - - - - - 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 G Ross appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE ANDREW SMITH: The appellant was sentenced on 6th March 2009 to 14 months' imprisonment for managing a brothel, having pleaded guilty on 2nd June 2008. The Court also made a confiscation order for payment of £203,355 to be paid within six months with three years' imprisonment in default. The appellant appeals against the sentence of imprisonment. 2. In May 2006 a warrant was executed at the appellant's home, from which he ran what was called an escort agency but was in fact a brothel. The police discovered evidence of prostitution. Records seized included interview notes, employment records and appointment books. The records suggested that over 120 women had either worked at the brothel will or had enquired about doing so and they referred to over 200 clients. Clients were apparently charged £75 per half hour, of which the appellant would receive £25 or £30 pounds. He admitted in interview receiving £800 a week. The prosecution alleged that a bogus car hire company was used to account for his income from the business and to disguise what was being carried on. This is disputed, but on any view the profits were substantial. 3. The particulars of the indictment against the appellant referred to him offending between 1st May 2004 and 12th May 2006, but he accepted advertising an escort agency in the local press since December 2001. It is said that initially the escort agency was just that. All the women who worked from the brothel were adult. There is no suggestion that any was the subject of any compulsion or coercion. The prosecution alleged that the appellant would himself have intercourse with women whom he interviewed to work from the brothel, but that is disputed, and we deal with the appeal on the basis that he did not do so. 4. The appellant pleaded guilty on the first day of his trial, but it was only then that he was charged with managing a brothel: the allegation had been one of controlling prostitution, which he denied and denies. His defence statement explained that. We deal with the appeal on the basis that he is entitled to full credit for his plea. 5. There was a basis of plea, in which the appellant accepted playing a managerial role, "running the activities of the house". He admitted providing premises for the brothel, being involved in keeping records, recruiting women, answering the phone, paying bills and receiving what were called "agency fees". 6. The appellant is aged 72. He has no previous convictions. The chances of him re-offending are assessed as low. We have received a medical report which states that he suffers from a depressive illness, the symptoms of which are likely to be aggravated by his conviction and imprisonment. We have also read a letter from the appellant's daughter, which, among other things, explains her father's long-standing back problem which gives constant pain, and there are other medical difficulties. 7. The appellant had been on bail since his arrest in May 2006 until his sentence. His sentence was some three years later. We understand that part of the delay was to do with the confiscation proceedings. 8. It is said on the appellant's behalf that he become involved in the business when he became friendly in the late 1990s with a woman who, he came to learn, ran an escort business and when he allowed another woman with a drugs problem to stay with him in order to help her. He came to know other prostitutes and agreed to be involved in setting up the escort agency from which the brothel resulted. 9. The definitive guidelines of the Sentencing Guideline Council indicate a starting point for an offence of this kind when there is no coercion or corruption but where, as here, the offender was closely involved with the prostitution, to be a period of 12 months' custody, with a sentencing range of between 26 weeks and two years. 10. It is clear that a custodial sentence was appropriate. The submission made is that the sentence was too long and that it should have been suspended. 11. We have referred to the mitigating features, both with regard to the offending and the appellant's personal circumstances. We have considered the cases to which the appellant's counsel has referred us: Bao [2007] EWCA Crim 2781 ; Chen [2007] EWCA Crim 1791 ; Baker [2008] EWCA Crim 274 ; and Shi [2008] EWCA Crim 1930 . 12. The judge, in passing sentence, referred to the scale of the operation. We agree that this is a serious aggravating feature, both in terms of the number of women involved and in terms of the profitability of the business and in terms of the time over which it was carried on. It was an activity managed by the appellant at the premises where he lived. He kept records of the business. He advertised it. There was a marked degree of sophistication. The sentence is undoubtedly a severe one for a man of the appellant's age and in his medical condition, but we are unable to conclude that it was outside the proper range of sentences that could be passed for this offending, and accordingly the appeal is dismissed.

```yaml citation: '[2009] EWCA Crim 1063' date: '2009-05-14' judges: - MR JUSTICE ANDREW SMITH - 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} ======

No: 200404703/A2 Neutral Citation Number: [2004] EWCA Crim 3361 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 9th December 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE DOUGLAS BROWN MR JUSTICE MACKAY - - - - - - - R E G I N A -v- MARIUZS WISNIEWSKI - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR M GALLOWAY appeared on behalf of the APPELLANT MR A REDDROP appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 21st June 2004 this appellant pleaded guilty at Central Devon Magistrates' Court to two offences, for which he was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 . On 23rd July 2004, at Exeter Crown Court, he was sentenced by His Honour Judge Cottle to a total of 7 years' imprisonment and recommended for deportation. The 7 years consisted of 2 years for the first offence of battery with intent to commit a sexual offence, under section 62 of the Sexual Offences Act 2003 , and 5 years consecutively for a second like offence. He appeals against sentence by leave of the Single Judge. 2. The circumstances in relation to the first offence were that, in the early hours of the morning of 6th June 2004, a young woman had been out with her partner but, following a disagreement between the two of them, she started to walk to a friend's house on her own. She saw the appellant sitting on a wall. He asked for a light. She was rude to him and kept walking. He again asked for a light, and took hold of her shoulder and then her waist. He then lifted her over a wall. She struggled with him, tried to get away, shouted and swore. He kept hold of the back of her jacket, but she was able to struggle back over the wall and run into the road towards a police car. She was upset and complained to the officers who took her details. 3. Her boyfriend returned and he and the complainant resumed their argument. Meanwhile, the police had also spoken to the appellant, who gave his name and date of birth, and he was sent on his way by the police. By reason of the incident, the complainant had bruising and scratching to her hip and some fingernail marks on her shoulder, and she was sick when she got home. The police did not contact her further, at that stage. But as a result of a second attack, to which in a moment we shall come, a public appeal was made on 14th June and she then contacted the police again. 4. The second incident occurred about a week after the first, at about midnight on 13th/14th June. A woman was walking home on her own, after a night out with friends. She became aware of the appellant in front of her, and he appeared to have her mobile telephone in her hand although he did not know how he had achieved that. He seemed to be tempting her with her telephone. She walked on, ignoring him, but further along the road, he stood in front of her holding out the telephone. He then seized her as she tried to walk past, and said: "You and me sex, sex, you and me". She could not break free. He dragged her into a churchyard nearby and forced her to the ground. She was shouting at him to get off, as he lay on top of her and felt her body. She was hysterical. A man who lived nearby heard her screams and came out. He saw the appellant on top of the complainant. The appellant jumped off and ran away fast. The woman was very upset and tearful and the man took her back to his house until the police arrived. On 17th June the complainant saw the appellant and told the police she had seen him. 5. He was arrested later that day, at his place of work. He was interviewed twice, but denied the offences. An identification parade was held at which the second victim picked him out. The judge, in passing sentence, referred to the seriousness of these assaults, of which the second was particularly serious because the defendant had apparently intended to rape his victim. Both the victims had undergone terrifying experiences and continued to suffer in consequence. 6. The judge referred to the mitigation, in the plea before the magistrates at the earliest opportunity, which entitled him to credit. The judge made the deportation order back to Poland from whence the appellant comes. 7. He was born in March 1976 and was of previous good character. 8. On behalf of the appellant, Mr Galloway, in an admirable submission, makes the following points: first, the judge's starting point in relation to both offences was too high. In particular, in relation to the second offence he appears to have taken a starting point by reference to all nine of the aggravating features identified in R v Millberry [2003] 2 Cr App R(S) 142, whereas in fact none of those features was present. Secondly, Mr Galloway submits that the judge failed, in relation to both aspects of the sentence, properly to reflect the plea of guilty at the earliest opportunity. Thirdly, the total sentence of 7 years, Mr Galloway submits, was too long. It suggests that, had there been a trial, the sentence would have been of the order of 10 years, which he submits was significantly too high. There is, in our judgment, substance in each of those submissions. 9. Battery with intent to commit a sexual offence is one of several new offences created by the Sexual Offences Act 2003 . But the conduct giving rise to this and other new offences is not new and pre-Act authorities in relation to sexual offences, particularly R v Millberry , Attorney-General's References Nos 91, 119 and 120 of 2002 [2003] 2 Cr App R(S) 338, Attorney-General's References Nos 37, 38 Etcetera of 2003 [2004] 1 Cr App R(S) 499 and R v Nelson [2002] 1 Cr App R(S) 565 should continue to guide sentencers. In relation to battery with intent, the factors of particular relevance to sentence include the method and degree of force used, the nature and extent of the indecency perpetrated and intended, the degree of vulnerability of and harm to the victim, the duration and general circumstances of the attack, including the time, day and place where it occurred and the level of risk posed by the offender to the public. The good character of the offender will afford only limited mitigation. That said, the maximum sentence provided by Parliament for this offence is 10 years, compared with life imprisonment for rape and attempted rape. In consequence, save where a great deal of violence is used, the level of sentence appropriate for this offence of battery with intent to commit a sexual offence will generally be lower than that appropriate for rape or attempted rape committed in similar circumstances. In the present case, both attacks took place in the middle of the night, when the victim was alone, and there was no one else about. No weapon was used, or blows struck and the indecency actually occurring was of a limited nature. In the first attack the violence was limited and the victim sustained only slight physical injuries, though she was obviously upset. In the second, the violence was greater, more prolonged and accompanied by more persistence in pursuit of sexual activity which, it is common ground, the appellant intended should be rape. The victim was deeply upset and, in the face of the appellant's denials, she had to undergo the ordeal of attending an identification parade. The fact that the two attacks took place within a space of a week was a seriously aggravating feature. A substantial discount was called for for the earliest possible pleas of guilty. A higher discount would have been attracted had there been admissions in the interview before the identification parade took place. 10. Taking all of those considerations and the able submissions made by Mr Galloway into account, this appeal is allowed to this extent: the sentence of 2 years in relation to the first offence is quashed and there is substituted for it a sentence of 18 months' imprisonment. The sentence of 5 years, in relation to the second offence is quashed, and there is substituted for it a sentence of three-and-a-half years' imprisonment. The total sentence to be served in place of the 7 years imposed by the learned judge will therefore will be one of 5 years' imprisonment. To that extent the appeal is allowed. The deportation order stands.

```yaml citation: '[2004] EWCA Crim 3361' date: '2004-12-09' judges: - (LORD JUSTICE ROSE) - MR JUSTICE DOUGLAS BROWN - MR JUSTICE MACKAY ```

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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 NOS 202102970/B3 & 202102971/B3 [2022] EWCA CRIM 1475 Royal Courts of Justice Strand London WC2A 2LL Friday 21 October 2022 Before: LADY JUSTICE SIMLER DBE MRS JUSTICE FOSTER DBE MRS JUSTICE TIPPLES DBE REX V DANIEL BURDETT RICHARD BURDETT __________ 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 J NUTTER appeared on behalf of Daniel Burdett MR J SMITH appeared on behalf of Richard Burdett _________ J U D G M E N T LADY JUSTICE SIMLER: Introduction 1. Daniel and Richard Burdett are brothers. On 19 August 2021, in the Crown Court at Manchester before Her Honour Judge Goddard QC and a jury, both were convicted of offences of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, contrary to section 170 Customs and Excise Management Act 1979 . Richard Burdett was convicted of two such offences and had earlier pleaded guilty to fraud on 21 July 2020. He was sentenced by the judge to a term of 18 years' imprisonment, less the days spent in a foreign prison which were calculated and accounted for. Daniel Burdett was convicted of five such offences. He was sentenced to a total of 25 years' imprisonment, less the calculated foreign prison days. 2. Both applicants renew their applications for leave to appeal against conviction and for representation orders following refusal by the single judge. Both are represented by defence trial counsel who acted on their behalf below. Mr Nutter appears for Daniel Burdett. Mr Smith appears for Richard Burdett. Their essential case is that the trial judge erred in rejecting submissions of no case to answer in both cases. We are grateful to both counsel for their comprehensive written and concise oral submissions on these applications. The facts 3. There were two illegal importations in this case. On 20 April 2018 a heavy goods vehicle was stopped and searched entering the Port of Dover. Firearms, ammunition and silencers were found concealed within the vehicle. The driver was arrested, and the items were forensically analysed. DNA was discovered on both the packaging and on one of the firearms. Analysis of DNA recovered from a knotted clear plastic bag which contained rounds of ammunition revealed a mixed DNA result which indicated the presence of DNA from at least three individuals, including at least one man. Based on that finding it was possible to say that DNA from the mixed DNA profile was 370 million times more likely to have originated from Daniel Burdett and two other men than from three unknown men. The expert who analysed the DNA concluded that the results provided extremely strong support for the suggestion that the mixed profile contained Daniel Burdett's DNA. There was also analysis of DNA recovered from a handle of a revolver. That too revealed a mixed DNA profile, this time made up from four contributors. A complete major profile matching that of Daniel Burdett was found. Based on that finding it was possible to say that DNA in that mixed DNA profile was one billion times more likely to have originated from Daniel Burdett and three unknown people, than from four unknown people. The expert who analysed the DNA concluded that the results provided extremely strong support for the suggestion that the mixed profile contained Daniel Burdett's DNA. 4. On 1 September 2018 another heavy goods vehicle was stopped and searched at the Port of Killingholme. Firearms and ammunition were found concealed in plastic boxes. Again the driver was arrested and the weapons and other items were forensically analysed. DNA and fingerprints matching Richard Burdett was found on the packaging. DNA from Daniel Burdett was also found on packaging and on one firearm. The firearms comprised ten Heckler and Koch brand P2000 self-loading pistols. The serial numbers had been mostly removed. Pistols 1-4 and 6-10 were packaged with 25 live 9 x 19mm calibre bulleted cartridges. Pistol 5 was packaged with 26 9 x 19mm calibre bulleted cartridges. In each case the ammunition was suitable for use with the firearm with which it was packaged. 5. DNA matching Daniel Burdett was found on firearm 6 and on packaging from firearms 3, 4, 6 and 7. DNA matching Richard Burdett was found on packaging from firearms 6 and 9. Fingerprints matching Richard Burdett were identified at 16 locations on a black bin bag from which firearm 10 was recovered. 6. At the same time as the lorry driver of the second heavy goods vehicle was in Amsterdam, Richard Burdett's telephone was in the same district of Amsterdam. This is where the weapons were assumed to have been placed onto the vehicle. There was an unknown mobile phone user using a number ending 518 and it was the prosecution's case that this user was responsible for the provision of the weapons. There was, however, no telephonic link between Richard Burdett and the lorry driver or the unknown 518 mobile phone user. 7. The prosecution relied on Richard Burdett's movements to and from Amsterdam and Dublin during the period before and after importation. These were encapsulated in a sequence of events chart. The prosecution also relied on Richard Burdett's use of several mobile phones, one of which ceased use several days after the second importation was stopped. Richard Burdett was found with two encrypted phones on his arrest at Manchester Airport in April 2019. He refused to provide PIN numbers to the police in respect of those phones. He breached his bail and returned to the Netherlands where he was stopped by the police in July 2019. He produced a false passport to Dutch police on that occasion and ultimately was extradited to the UK in October 2019 to face these criminal proceedings. He gave a no comment police interview. Daniel Burdett was never interviewed by police. 8. The applicants both denied involvement in the importation of firearms. They accepted that whilst they could be linked to the firearms and/or to the packaging by forensic evidence, that by itself did not prove their participation in any importation, still less importation to this country. Neither gave evidence in his defence at trial. 9. The prosecution relied at trial on the DNA evidence as the principal evidence in the case. The DNA of Daniel Burdett was found, in summary, in the first importation on the bag of ammunition and the handle of the firearm. In the second importation, it was found on the clear clingfilm surrounding firearm 3, the heat sealed plastic around firearm 4, the clingfilm pouch surrounding firearm 6 and the creased edge of the packaging surrounding firearm 7. The prosecution also relied on circumstantial evidence and inferences in his case. 10. The case against Richard Burdett also rested principally on DNA and fingerprint evidence. In summary, this was found on the outside surface of the clingfilm pouch of firearm 6; on the outside surface of the clingfilm pouch of firearm 9, and the fingerprints on the black bin bag containing firearm 10. Then prosecution also relied on the sequence of events chart to which we have referred, his attempt to conceal his travel between the UK and Holland by the use of a false passport and his use of mobile phones and changes in use of mobile phones and numbers around the time of the importation. The submission of no case to answer 11. The applicants made a submission of no case to answer at the end of the prosecution case. That submission was essentially founded on the contention that DNA evidence on its own was insufficient in both cases. The judge rejected those submissions. In her careful ruling the judge summarised the fact that there were two separate illegal importations of firearms and ammunition into this country from the Netherlands and that Daniel Burdett was alleged to have been involved in both importations and was charged jointly with his brother in relation to the second importation. 12. The judge directed herself in accordance with the well-known principles set out in Galbraith (1981) 73 Cr.App.R 125. She said that she would have to decide if the prosecution case taken at its highest was such that a reasonable jury properly directed could convict each defendant. She was referred to Tsekiri [2017] EWCA Crim 40 , Jones [2020] EWCA Crim 1021 and Bech [2018] EWCA Crim 448 . We too were referred to those cases and have read them. The judge acknowledged that in Daniel Burdett's case, the prosecution largely, if not solely, depended on the DNA evidence. Nonetheless, as she recognised, a case can be left to a jury solely on the basis of the presence of a defendant's DNA profile on an article left at the scene in an appropriate case (see the Tsekiri factors). 13. So far as Daniel Burdett was concerned, Mr Nutter conceded that the DNA evidence was sufficient to establish a case of criminal possession within the Netherlands but not sufficient to found a case of importation into the UK. That is an argument he repeated before us. The judge however concluded that it was highly significant that his DNA was found, not only on the firearms, but on the packaging itself, which was a foundation for importation. The photographs showed the careful way items were packaged, with guns being wrapped in clingfilm, in plastic which was heat sealed and then brown plastic tape. It followed, she concluded, that the significance of the presence of Daniel Burdett’s DNA was enhanced by the way the items were packaged. She accepted, as the prosecution contended, that it was a reasonable inference for the jury to draw that the packaging of the firearms was for the purpose of the importation into the UK and not simply for possession within Holland. The absence of evidence of Daniel Burdett's presence in Holland or Amsterdam at the time of either importation, notwithstanding his arrest in the Hague in December 2019 and the absence of evidence of telephone links were not, she concluded, relevant to the half time submission which depended on the sufficiency or otherwise of the actual evidence. 14. The judge acknowledged that the jury would have to consider the evidence against each defendant separately but concluded that they would be entitled to consider all of the evidence in the case and would be entitled to take into account the fact that Daniel Burdett's brother was implicated in the placement of the firearms and ammunition onto the trailer in the Europaplein district of Amsterdam in September. Ultimately she concluded that the DNA evidence alone, bearing in mind that there were two separate importations where Daniel Burdett's DNA was found, together with the way the goods were packaged and in the absence of any innocent explanation for the presence of all the DNA, was sufficient evidence on which a reasonable jury properly directed could convict Daniel Burdett of being knowingly concerned in the fraudulent importation of the items on all counts. 15. For Richard Burdett, Mr Smith submitted, again as he did before us, that the evidence relied on by the prosecution based on the DNA evidence was so inherently weak and unsafe that the case should not proceed beyond the halfway point. On its own he submitted that the DNA evidence was insufficient. He suggested that the evidence pointed to RB residing in Amsterdam. The evidence about his phone usage in the same district and time as the lorry driver and the supplier were in contact was not so surprising given RB’s links to Amsterdam. The fact RB’s phone was contacting his partner at the same time as those engaged in the importation pointed away from guilt. Moreover, there was no DNA from Richard Burnett on the weapons themselves and his DNA was found only on the packaging. It was a mixed profile and that showed others had also had contact with those items. Richard Burdett did not immediately change his mobile phone after the importation, that was only done some six days later, and the fact he used a false name was of little assistance to the prosecution given his criminal past. 16. The judge once again accepted the prosecution contention that it was a reasonable inference that the packaging of the firearms in clingfilm, heat sealed plastic and brown tape was for the purpose of importation. She regarded that as significant in relation to the counts charged and to knowledge that the goods were to be illegally imported into the UK. She placed reliance on the evidence of Richard Burdett's presence in Holland as demonstrated by the sequence of events. In her sound ruling, she referred to the fact that there was no telephone evidence to connect Richard Burdett with the driver or with anyone else who might have been involved in the importation in September; nor was there evidence of meetings that could show his participation. Those were all valid points about the strength or weakness of the prosecution case that could be raised with the jury, but her task was to consider the sufficiency of the actual evidence. There was no evidence that Richard Burdett resided in Amsterdam and no explanation why he would travel via Dublin. No explanation had been provided to the police in interview for the presence of his DNA on the items seized. The judge looked at the evidence available by way of DNA; she looked at the presence in the same district of Amsterdam at the time the goods were handed over to the driver; she looked at the change in mobile phone usage a few days later, together with Richard Burdett's travel arrangements and the encrypted phones found on him. She concluded that the evidence as a whole could properly lead to the inference that he was knowingly concerned in the importation of the items and therefore there was a case to answer on which a reasonable jury properly directed could convict Richard Burdett on the counts that he faced. The application 17. Mr Nutter on behalf of Daniel Burdett repeats the submissions made before the judge. He referred to the joint expert report which could not say when or how the DNA came to be deposited. The DNA proved contact and might be said to have proved possession in Holland, but it went no further, and certainly did not make the leap to proving a case that Daniel Burdett was knowingly involved in the importations concerned. This is the crux of the case. The prosecution had to prove knowing involvement in importations and the evidence was simply not capable of doing that. He emphasised the inability to identify when the DNA was deposited and that it can persist for a considerable period of time. The earlier the deposit the less likely the connection with the importation is to have been and in all the circumstances the DNA evidence by itself came nowhere near to proving knowing importation. There was nothing in the sequence of events that supported the inferences relied upon by the prosecution either. 18. We have considered those submissions with care but have concluded that the application is not arguable. In considering and rejecting the submissions made in the court below, HHJ Goddard QC recognised correctly that the prosecution case was largely, if not solely, founded on DNA evidence. She applied the relevant law correctly and considered the factors relevant to cases resting solely or mainly on DNA evidence. She made no arguable error in doing so. 19. It is significant that the DNA on which the prosecution relied against Daniel Burdett was not only present in two unconnected importations from Holland to the UK, but also on the layered, carefully organised items of packaging. It was a reasonable inference that the packaging of the firearms in this way was for the purpose of the importation. All of the features to which the judge referred, and we have identified briefly, called for an explanation and were features the jury was entitled to rely on. In all those circumstances we are in no doubt that there was sufficient evidence on which a reasonable jury properly directed could convict Daniel Burdett of being knowingly concerned in the fraudulent importation charged. There was unarguably enough evidence for the case to continue and, notwithstanding the clear submissions advanced by Mr Nutter on this application, it is refused. 20. So far as Richard Burdett is concerned, Mr Smith submitted, as he did below, that the judge was in error in rejecting his submission of no case to answer. The prosecution case was inherently weak. 21. Mr Smith amplified that overarching submission, both in writing and orally. He submitted that the DNA evidence alone was insufficient for the reasons advanced by Mr Nutter. Moreover, the judge placed too much reliance on Richard Burdett's presence in Amsterdam as being supportive of the prosecution case in circumstances where there was clear evidence that he resided in Amsterdam in any event. She placed too much reliance on his silence in interview and her error in her first ruling was an error that reduces confidence in her ruling overall. There was simply insufficient evidence for a jury properly directed to convict and the case should not have proceeded. 22. Once again, and forcefully as those submissions were advanced, we do not regard them as arguable. Here too we can see no basis on which to conclude that the judge made any arguable error in her summary of the principles of law and in the factors on which she relied. As we have said, there was DNA from Richard Burdett on the outside surface of the clingfilm pouch wrapped around firearms 6 and 9 and there was fingerprint evidence on the black bin bag containing firearm 10. Again, it was open to the jury to conclude that the careful packaging of the firearms in this way was for the purposes of importation. In addition, Richard Burdett was in the same district of Amsterdam, namely Europaplein, at the same time as the user of the 518 number and at a time when that number was in contact with the lorry driver who was to drive the prohibited items into the UK. That was significant evidence (as the judge explained) in describing the movements of the user of the 518 number and the circuitous route that had been taken to Europaplein via Huizen, Alkmaar, Europaplein and then Hilversum, Utrecht and Lekkerkerk. There was evidence of the lorry driver's phone also using a mast in Lekkerkerk at the same time as the 518 user and being in contact with that 518 number. Even if Richard Burdett had an innocent reason to be in Amsterdam, or indeed Europaplein, it was the arrival of the unknown 518 user at the same time and in the same area of Amsterdam as Richard Burdett that was highly significant, both as the prosecution contended and as the judge concluded. In any event, the evidence did not show that he resided in Amsterdam. It simply indicated that he was there on numerous occasions. Evidence in the sequence of events showed his phone being used to call an Amsterdam taxi firm on various dates between 14 August and 7 September 2018. There was no evidence as to the location of the phones at that time. The restaurant card did not support the submission that he resided in Amsterdam, still less Europaplein. Indeed there was no evidence as to the location of his residence. As we have said, the significance of the location evidence was not so much that Richard Burdett was present in Amsterdam, but that he was in the particular district of Amsterdam when the unknown user of the 518 number travelled to the same district. Accordingly, it seems to us that it was an entirely proper and by no means too tenuous an inference, that the user of the 518 number travelled to Europaplein to meet Richard Burdett. 23. We acknowledge the factual error made by the judge in her first ruling. However, the judge corrected that factual error having heard further submissions, and her second ruling made no reference to it. 24. Finally, so far as Richard Burdett's silence in interview is concerned, it seems to us that the judge was entitled to rely on his silence in interview when considering the submission of no case to answer. R v Jones [2020] EWCA Crim 1021 is not authority for the proposition advanced by Mr Smith in writing. That case turned on its own facts as the court was at pains to emphasise. 25. These are all fact specific cases and ultimately this application, like Daniel Burdett's application, boils down to the question whether the evidence was sufficient to enable a reasonable jury properly directed to conclude that Richard Burdett was knowingly involved in the importation of the items concerned. We are in no doubt that is was, and there was no error or unfairness in the rejection of the half time submission in his case either. 26. For all those reasons, the application for permission to appeal is refused in Richard Burdett's case also. Accordingly, all applications 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: '[2022] EWCA Crim 1475' date: '2022-10-21' judges: - LADY JUSTICE SIMLER DBE - MRS JUSTICE FOSTER DBE - MRS JUSTICE TIPPLES DBE ```

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Case No: 200203040/B4 Neutral Citation Number: [2003] EWCA Crim 3486 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Monday, 17th November 2003 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE LEVESON MR JUSTICE TUGENDHAT - - - - - - - R E G I N A -v- HUI MIAO - - - - - - - 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) - - - - - - - MS S EDWARDS QC appeared on behalf of the APPELLANT MR J LAIDLAW appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 26th April 2002, at Kingston Upon Thames Crown Court, following a trial before His Honour Judge Tilling, the appellant was convicted of murder and sentenced to life imprisonment. He appeals against conviction by leave of the Single Judge. 2. The facts were these. From the beginning of July 2001 the appellant had lived with a woman called Li Ming Shen, who became his victim, in Fountain Road, Tooting. They shared the kitchen and bathroom with other tenants of the house where they lived, one of whom was the victim's niece, Zhu Mei Chen, who had the room immediately below. 3. The victim had been with her family in Bristol and returned home at about 6 o'clock on the evening of Sunday 29th July 2001. In the early hours of the following morning, a little before 2.30 am, the appellant carried the victim into the accident and emergency department of St George's Hospital, Tooting. Attempts were made by the hospital staff to resuscitate the victim but she was pronounced dead at 2.35 am. 4. The prosecution case was that the relationship between the appellant and the victim had been argumentative and violent. Indeed, on at least one occasion (if not more) the appellant had been seen assaulting the victim and threatening her life. He was undoubtedly angry, said the prosecution, because she was trying to avoid him and he strangled her intending to kill her. When he brought her to hospital rigor mortis had already set in indicating that she had been dead for something of the order of 3 hours. There were marks on the neck, indicating strangulation and that a ligature may have been used. 5. The defence case was that, although the appellant admitted that he had killed her, he had not intended to do so. He had put his hands on her throat but he had not squeezed her throat or applied sufficient pressure to kill her, nor had he used a ligature. The appellant also suggested (although the medical evidence on postmortem contradicted this) that the victim, in her 20s or 30s, had suffered from tuberculosis as a result of which she had had trouble in breathing. The appellant claimed that she was still alive when he took her to hospital. 6. The issue left for the jury was whether the appellant intended to kill or cause really serious harm. Although provocation had been referred to briefly in the course of prosecuting counsel's opening, and although counsel for the defence, supported by counsel for the prosecution, invited the judge to leave provocation to the jury, he did not do so. 7. In a little more detail it is necessary to refer to some of the other evidence. There was medical evidence that it was not possible, when the victim presented with the appellant at that hospital, to insert an airway because the victim's jaw muscles were clamped shut. The muscle rigidity also observed in the abdominal muscles, although the arms were flaccid, indicated the onset of rigor and it was obvious to Dr Woodfine that the victim had been dead for some time. He saw an obvious bruise across the front of the neck, consistent with her having been hanged or strangled. 8. A forensic pathologist referred to the cause of death as strangulation, the injuries being consistent with both manual and ligature pressure. He said that severe pressure would have been required and it would have needed to be sustained for a considerable period. 9. There were no features to suggest that the victim had ever had tuberculosis nor were there any changes in the airways of the lungs rendering her more susceptible than an ordinary person to strangulation. He said, in cross-examination, that he could not exclude the possibility that the marking on the front of the neck was due to the chain which the victim wore, having been compressed by the squeezing, but his experience suggested that a ligature had been used. 10. There was evidence from the victim's niece that, about 2 months before, she had seen the appellant using violence to the head of the victim. A little later there was a further incident in the street, which led to the police being called by a passerby. There was other evidence of arguments between the appellant and the victim. 11. When he was interviewed, through an interpreter, the appellant said: "I did not kill her. I did not intend to cause her grievous bodily harm." He accepted, subsequently, that he had caused the victim's death and claimed that she was having trouble breathing and had said something like "tight, tight, tight", by reference to her chest. He was completely stunned when told that she was dead. 12. He said, in evidence, in relation to the fatal evening, that everything was fine between them and they had made love, but then she had accused him of having an affair with her sister-in-law, slapped him, kicked him and started to shout and yell. He was afraid that she might attract the attention of neighbours and police - which neither wanted - and he put his hand over her mouth. She bit his hand and put her hands round her throat. To stop her he allowed his hand to slip to her throat. He could not say how long his hand was there or how hard his hand was on her. He had no intention of squeezing her throat and no intention of causing her really serious injury, still less did he intend to kill her. 13. Thereafter, he had left the room in order to get some cigarettes. When he returned, 20 minutes later, he claimed she was still alive, though having trouble with her breathing. He had tried, unsuccessfully, to revive her and had then taken her to hospital. He said, in cross-examination, that the problems between him and the deceased had been caused by members of her family. Throughout his evidence, both in-chief and in cross-examination, he denied at any stage losing control because of the victim's behaviour. 14. The submission which is made by Miss Edwards QC, on behalf of the appellant, is that the judge, who referred to there being "minimal" evidence of loss of self-control, ought to have left the issue of provocation to the jury. If the jury accepted the defendant's account of what had happened, there were, on the part of the victim, both words and deeds which were capable of giving rise to provoking conduct. The explosion of violence followed immediately after that potentially provoking conduct, if such there was, and therefore the matter ought to have been left to the jury. 15. Mr Laidlaw, on behalf of the Crown before us, as he was at trial, admitted to a degree of embarrassment, but his position had been at trial that the judge ought to leave provocation to the jury. The basis on which he submitted, in relation to evidence of loss of self-control, that the matter should have been left is put in this way in his written submissions, repeated orally before us: "Bearing in mind what the defendant had said about events in the moments before he put his hands to her throat, and the fact that he had strangled a defenceless woman who was much smaller than him, it seemed at least possible that a jury may find that there may, bearing in mind where the burden of proof lies, have been a loss of control as a result of the provocative words and conduct." In his submissions to this Court he stresses the proximity in timing between the potentially provocative conduct, if such there was, as described by the defendant and the killing. He accepted that there was no evidence of a frenzied attack, such as is sometimes found in cases where provocation is left to the jury. 16. Section 3 of the Homicide Act, so far as is presently relevant, is in these terms: "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury..." The judge, in his ruling said this: "It is clear that where the subjective condition of section 3, that is to say, where there is evidence that this particular defendant did in fact lose his self-control, and did so as a result of provocative words in this particular case, then the judge should leave that issue to the jury to determine the objective issue. However, where such evidence, as I am satisfied in this case that it is minimal, allied with the fact that such a defence clearly undermines his own actual defence of either self-defence or a lack of intent, then in my view it should not be left. I find in this case that there is minimal evidence that this defendant did in fact lose his self-control, as the result of provocation. For those reasons, I am not going to leave provocation to the jury." 17. Miss Edwards draws attention to the judge's use of the word "minimal", and submits that, on that basis, if there were such evidence, the issue of provocation ought to have been left to the jury. In her written submission, in support of that proposition, she relied on certain observations made by Russell LJ, giving the judgment of the Court in R v Rossiter (1992) 95 Cr App R 326 . In the course of giving the judgment of the Court, (another member of which, it is to be noted, was Roch J, to whose judgment in another case we shall come in a moment), Russell LJ suggested that the issue of provocation should be left to the jury, if there were evidence "however tenuous." This Court needs no persuasion of the experience and expertise of the late Russell LJ in relation to the criminal law. But, as it seems to us, that particular observation is not capable of surviving the observations made by Lord Steyn, with whose speech all the other members of the House of Lords agreed, in R v Acott [1997] 2 Cr App R 94 , where the question was whether there was evidence of provocative conduct sufficient to be left to the jury. At page 100E, Lord Steyn said: "It remained the duty of the judge to decide whether there was evidence of provoking conduct, which resulted in the defendant losing his self-control. If in the opinion of the judge, even on a view most favourable to the accused, there is insufficient material for a jury to find that it is a reasonable possibility that there was specific provoking conduct resulting in a loss of self-control, there is simply no issue of provocation to be considered by the jury." At 102E Lord Steyn said: "If there is such evidence, the judge must leave the issue to the jury. If there is no such evidence, but merely the speculative possibility that there had been an act of provocation, it is wrong for the judge to direct the jury to consider provocation. In such a case there is simply no triable issue of provocation." Those observations, as it seems to us, are equally apt when considering whether there is sufficient evidence that a defendant was provoked, as they are when considering whether there was evidence of provoking conduct. 18. In R v Jones (unreported Court of Appeal (Criminal Division) transcript of 22nd October 1999) Roch LJ, giving the judgment of the Court said this, at page 7 of the transcript: "Trial judges are inevitably aware that the giving of a provocation direction must tend to undermine lines of defence such as those which were advanced on behalf of the appellant in this case. It is unlikely that a person who has lost control of himself is acting in defence of another. It is more likely that such a person will have intended to kill or to cause really serious physical harm. For that reason a judge should not give a direction on provocation where evidence of provoking conduct by the deceased, or evidence that such conduct caused a loss of self-control by a defendant, is minimal or fanciful. To repeat the words of Lord Steyn, there has to be evidence of 'specific provoking conduct resulting in a loss of control.'" It is apparent, in giving the ruling which he did in the present case, that Judge Tilling, by using the word "minimal" was alighting on one of the words used by Roch LJ in that passage in Jones , to which he had been referred. 19. The law is clear in the light of the authorities to which we have briefly referred. It is for the judge to decide if there is evidence of provoking conduct and loss of self-control. If there is sufficient evidence, it is a matter for the jury. If there is insufficient material to find as a reasonable, rather than merely speculative, possibility that there was provoking conduct and loss of self-control, there is no issue and the judge should not leave provocation to the jury. A trial judge is, in many cases, better placed than this Court to assess the quality and effect of the evidence which has been placed before the jury. 20. In the present case, on the assumption that the defendant's account of what the victim did was correct (and it is to be noted that his account was manifestly incorrect in relation to what he must have done in order to cause this unfortunate woman's death), there was evidence of potentially provoking conduct sufficient to be left to the jury. But, in relation to whether or not he lost his self-control, his evidence was that he did not. His evidence was that he did not intend to kill or to cause serious harm. He denied, as we have said, squeezing his victim's throat with substantial pressure for a significant period. He had previously used violence to this victim and threatened her. There was no evidence here of a frenzied attack, such as occurs in some of the authorities, for example, Rossiter , and in other cases where multiple stab wounds may suggest a frenzy on the part of the defendant. 21. Looking at the whole of the evidence, therefore, although the judge's decision, as it seems to us, was courageous it was also correct. There was, no doubt, the speculative possibility that the defendant may, on the evidence, have lost his self-control. But, in our judgment, despite the views taken by both experienced counsel in the court below and despite their submissions made to this Court, there was no sufficient material, gauged by Lord Steyn's yardstick, which would have justified the judge in leaving the issue of provocation to the jury. Accordingly, this appeal is dismissed.

```yaml citation: '[2003] EWCA Crim 3486' date: '2003-11-17' judges: - (LORD JUSTICE ROSE) - MR JUSTICE LEVESON - MR JUSTICE TUGENDHAT ```

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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 202301652/B4 [2023] EWCA Crim 1610 Royal Courts of Justice Strand London WC2A 2LL Thursday, 16 November 2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDE MR JUSTICE LAVENDER MR JUSTICE FREEDMAN REX v SCOTT MARSDEN __________ 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 QUAIFE appeared on behalf of the Appellant MISS H HOPE appeared on behalf of the Crown _________ J U D G M E N T (Approved) 1. The Vice-President : On 21 21 April 2023, after a trial in the Crown Court at Truro before Recorder Kenefick and a jury, this appellant was convicted of an offence of assault occasioning actual bodily harm. He now appeals against that conviction by leave of the single judge. 2. A brief summary of the facts is sufficient for present purposes. On 16 October 2022 the appellant, then aged 36, returned from a holiday to find that in his absence his home had been burgled and property stolen. From conversations with others he suspected that the culprit was a youth then aged 16. On 17 October 2022 the appellant was given some information about the likely whereabouts of that youth, and went to the relevant location. He there confronted the youth, demanded the return of his property and struck him. Another man, James Carter, then became involved. The youth suffered a black eye and a slash wound across the top of his head which required many stitches. 3. The appellant and Carter were later arrested on suspicion of an offence contrary to section 18 of the Offences against the Person Act 1861 . Each of them was interviewed under caution on the afternoon of 18 October 2022. The appellant put forward a prepared statement in which he asserted that he had been angry with the youth and that he had "grabbed him and gave him a clip around the head and started shouting at him, 'Where's my stuff?'" The statement went on to say that he had then seen Carter run at the youth with what looked like a Stanley knife and cut him to the head. The appellant had tried to push Carter away and had himself suffered a cut to the wrist in doing so. Having put forward that statement, the appellant made no comment to the questions asked. 4. The appellant and Carter were initially charged with a joint offence contrary to section 18 of the 1861 Act . The trial proceeded however on an indictment containing three counts. Counts 1 and 2 charged Carter alone with causing grievous bodily harm with intent and with having a bladed article, namely a Stanley knife. Count 3 charged the appellant alone with assault occasioning actual bodily harm, contrary to section 47 of the 1861 Act . 5. The prosecution case was that the appellant had punched the victim, causing the black eye, and that Carter had then slashed the victim's head with a Stanley knife. The prosecution adduced evidence from the victim, from witnesses to the incident and from persons to whom incriminating remarks were alleged to have been made. 6. The appellant gave evidence that he had struck the victim on the head but had not punched him and had not caused him any injury. He admitted that he was guilty of common assault or battery, but denied the offence charged. 7. Carter gave evidence that he had seen the appellant repeatedly punch the victim and also wound him with a knife. Carter admitted that he himself had punched and kicked the victim, and also admitted that he had been in possession of a screwdriver, but he denied having a Stanley knife and denied wounding the victim. He accepted that he had told a number of lies when interviewed under caution. 8. Before summing-up, the recorder discussed his proposed legal directions with counsel. Counsel for Carter accepted that the jury could find that Carter had both lied in interview and failed to mention in interview matters on which he later relied as part of his defence, and accepted that directions should be given about both those matters. 9. Mr Quaife, then as now representing the appellant, submitted that the jury should be directed that they should not draw any adverse inference from the appellant's no comment interview, because the appellant had not failed to mention in his prepared statement any matter on which he relied at trial. 10. Miss Hope, then as now representing the prosecution, confirmed that she had not cross-examined the appellant to suggest any failure to mention a relevant fact, and that she did not ask for a direction pursuant to section 34 of the Criminal Justice and Public Order Act 1994 . However, counsel for Carter submitted that there should be such a direction in the appellant's case. He said that he had cross-examined the appellant about "various points that he hadn't mentioned, in fact, the whole of 16 October and the whole of 17 October up until 5 o'clock." Counsel did not however identify with any clarity what the "various points" were. He made a reference to the wearing of gloves and suggested that the appellant "did various other things, forgive me, I'm just sort of spouting them off the top of my head." In essence, the submission was that the appellant had said a lot more in his evidence than he had said in his prepared statement. 11. We would add that it seems to us, from reading the transcript of the discussion, that counsel for Carter was concerned that it would be damaging to Carter's case if directions about lies and failures to mention were given in Carter's case, but no corresponding direction at all was given in this appellant's case. 12. Mr Quaife, in response, maintained his submission to the recorder that no section 34 direction should be given. He emphasised that the submission on behalf of Carter had failed to identify what precisely were the matters on which the appellant now relied but which he had not mentioned when interviewed. Mr Quaife further submitted that the appellant's evidence had not contained anything of importance which had not been mentioned in his prepared statement. 13. Having considered these submissions, the recorder directed the jury as follows: "You will recall that both of the Defendants were cross-examined about certain things they said in their evidence in court which they didn't mention in their police interviews. Now, for example, and these are only examples, Mr Carter didn't mention in his police interview that he owed a drug debt to Mr Marsden, or that he was scared of Mr Marsden, or that Mr Marsden said that he was going to teach [the victim] a lesson, or he was going to annihilate [the victim], or that Mr Marsden put gloves on before he assaulted [the victim]. Whereas, he did say those things in his evidence during this trial. Mr Marsden had a short prepared statement read out by his solicitor on his behalf during his police interview, in which he did not mention a number of things that he said in his evidence in court. You've got that statement in your bundle. I think it's exhibit two. He then answered no comment to all the questions he was asked in his interview. Now, Mr Carter gave a number of reasons for not mentioning things in his interview which he now relies on in his defence. In summary, he said that he was still under the influence of drugs when he was interviewed and was not in a fit state to be interviewed. He also said he was confused and mistaken about some of the things he was being asked about. And he also said that he was afraid of Mr Marsden might do to him. Mr Marsden said that he was advised by his solicitor to provide the prepared statement, and then to answer no comment to all the questions asked in his interview. Please note that, if you accept that he was told this by his solicitor, it is important to take it into account, but you should also bear in mind that someone who is given legal advice has a choice whether or not to [accept] it." 14. The recorder went on to give conventional directions as to the matters of which the jury must be satisfied before they could conclude that either defendant had failed to mention a matter in interview because it was untrue and had subsequently been invented in order to support a defence. In the course of giving those conventional directions, the recorder explained that the jury were entitled to draw an adverse inference in appropriate circumstances because the failure to mention matters later relied upon could harm the defence of one or both of the accused. The recorder thereafter directed the jury about the lies which Carter had told in interview. 15. The jury returned not guilty verdicts in respect of Carter on both counts 1 and 2 but a guilty verdict against the appellant on count 3. 16. The ground of appeal is that the recorder erred in directing the jury pursuant to section 34 of the 1994 Act on matters not mentioned when questioned. Mr Quaife reiterates his submissions that the appellant did not fail to mention in his prepared statement any matter on which he later relied at trial, and that counsel for Carter had laid no evidential foundation for such a direction because there had been no identification of any matter which it was said the appellant had failed to mention, and no questioning of the appellant as to why he had not mentioned that matter in interview. Mr Quaife further submits that the recorder fell into error in his direction because he failed to identify the facts which the appellant had failed to mention but on which the appellant had later relied in his defence. In support of this latter submission, Mr Quaife relies on the guidance given by this court in R v Pektar [2004] 1 Cr.App.R 22 in a passage conveniently quoted in the Crown Court Compendium at 7-6. It is submitted that in those circumstances the jury could not properly apply the recorder’s direction and that the conviction is accordingly unsafe. 17. For the respondent, Miss Hope submits that the recorder's failure to spell out precisely which matters the appellant had failed to mention when questioned did not cast doubt on the safety of the conviction because the matters concerned, which had been mentioned in the closing speech of counsel for Carter, related only to the background to the incident and the appellant's relationship with Carter. They did not go to the central issue of whether the appellant's admitted striking of the victim was a punch which resulted in a black eye. 18. Miss Hope further submits that, even if it would have been preferable for the recorder to have identified the particular facts which the appellant had failed to mention, the peripheral nature of those matters means the conviction is safe. 19. We are grateful to both counsel for their admirably succinct and very helpful submissions. 20. So far as is material for present purposes, section 34 of the 1994 Act provides: " 34 Effect of accused's failure to mention facts when questioned or charged . (1) Where, in any proceedings against a person for an offence, evidence is given that the accused— (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies. (2) Where this subsection applies— ... (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper." 21. An initial question of law arises as to whether that section can be relied on by a co-accused in circumstances where the prosecution does not seek to rely upon it. The words of the statute which we have just quoted do not specifically limit the ambit of the section to the drawing of inferences which the prosecution invite the jury to draw against a defendant. On the other hand, the relevant questioning is questioning by a constable investigating the offence which the prosecution allege has been committed; and the direction conventionally given to a jury, and indeed given by the recorder in this case, is couched in terms of the jury regarding the defendant's failure to mention the facts as providing some support for the prosecution case. Furthermore, we think there will be few cases in which the terms of the police questioning are capable of fulfilling the statutory conditions for the possible drawing of an adverse inference from silence sought by a co-accused, because it will rarely be the case that police questioning is focused on a matter which is relevant to a co-accused but not relevant to the prosecution. It will for that reason, we think, rarely be possible to say that the defendant "could reasonably have been expected to mention" the matter concerned. 22. Counsel have been unable to find any authority directly bearing on this interesting issue and their submissions on the point have been limited. Given that the words of the statute do not explicitly exclude reliance by a co-accused on a section 34 direction, we do not feel able in this case to determine that section 34 can never be relied upon by a co-accused in circumstances such as these. Any decision to that effect must be deferred until more detailed submissions are heard, and a more fully-informed decision can be reached, in another case which raises the point. 23. What can, however, be said is that if section 34 does apply in circumstances such as these, any direction permitting the jury to draw an adverse inference against a defendant at the behest of his co-accused will need to be drafted with care, paying close regard to the guidance helpfully given in the Crown Court Compendium but recognising that that guidance relates to the conventional situation of the prosecution seeking the direction. It will be essential to identify the precise matters which the defendant failed to mention but has relied on in his defence; the circumstances existing at the time of the questioning which are capable of leading the jury to the conclusion that the defendant could reasonably have been expected to mention those matters; the inferences which it is suggested might properly be drawn from the failure to mention the facts concerned; and any explanation put forward by the defendant as to why he did not mention those matters. 24. We have no doubt that the recorder fell into error in his direction pursuant to section 34 of the 1994 Act permitting the jury to draw an adverse inference against this appellant. In fairness to the recorder, he received very little assistance from counsel who had sought the direction, who had failed to spell out what it was he contended the appellant had failed to mention. It may also be that the recorder was anxious lest his directions appeared to place undue weight on findings the jury might make about Carter's responses in interview, when there was no corresponding point for them to consider in the case of this appellant. Such a consideration could not, however, justify the giving of a section 34 direction in this appellant's case if it was not otherwise appropriate to do so. At most it might be a reason why Carter could argue that no direction should be given in his case. 25. In our view, the first question which the recorder had to decide was whether a section 34 direction in relation to this appellant was appropriate at all. Miss Hope tells us, and we of course accept from her, that the only failures to mention which were referred to in the closing speech on behalf of Carter related to matters which were peripheral and unimportant. If that was the case, then in our view the recorder should have acceded to Mr Quaife's primary submission and should have directed the jury that they could not draw any adverse inference against the appellant. We would observe that one of the advantages of precise identification of the relevant matters when an application of this kind is made is that it will assist the judge to decide whether the giving of any direction is appropriate at all. 26. If however the recorder had taken a different view as to the potential importance of any matters not mentioned by the appellant, then he should have identified them precisely to the jury. It was not sufficient merely to tell the jury, as he did in his directions, that the appellant "did not mention a number of things that he said in his evidence in court." In the circumstances of this case, it was also necessary for the direction to identify the questions asked by the police which the appellant could reasonably have been expected to answer by mentioning the relevant matters. That was not done. In the result, the jury were permitted to draw an adverse inference without any clear direction as to the basis on which they might properly do so. 27. Unfortunately those errors were compounded by the fact that in relation to Carter, against whom the prosecution had sought a section 34 direction, the recorder gave a more detailed and entirely appropriate direction. This appellant was thereby placed at a disadvantage. 28. In short, we are satisfied that there was a material misdirection of the jury. 29. Is the conviction of the appellant nonetheless safe? We recognise that the issue in the appellant's case was a narrow one: were the jury sure that his admitted striking of the victim was a punch which resulted in a black eye, or might it have been no more than a clip around the ear which caused no injury? We also recognise that there was strong evidence pointing towards a finding of guilt. However, this was a case in which allegations were made against the appellant not only by the prosecution but also by his co-accused. In our view the misdirection to which have referred both unfairly disadvantaged the appellant and gave an unfair advantage to Carter. Having regard to the verdicts which the jury returned, we are unable to say that that imbalance did not affect the jury's decisions. 30. In those circumstances, we conclude that the conviction is unsafe and must be quashed. We accordingly allow this appeal and quash the conviction. 31. Miss Hope, are there any consequential applications? 32. MISS HOPE: My Lord, I am instructed that the Crown would need time to consider whether or not a retrial is appropriate in this case. 33. THE VICE-PRESIDENT: Why? 34. MISS HOPE: Because I am instructed that the decision needs to be made by the reviewing lawyer. 35. THE VICE-PRESIDENT: This is no criticism of you, Miss Hope but everyone knows that when an appeal against conviction is before the court, if it results in the quashing of a conviction, the question of whether there is to be a retrial will immediately arise. There can have been nothing surprising in our judgment. The ground of appeal was very clear. The decision would go one way or the other. Why could appropriate consideration not be given well before this hearing as to whether any retrial would be sought? 36. MISS HOPE: I am afraid I cannot give my Lord a better answer than those are the instructions I have been given. 37. THE VICE-PRESIDENT: You are not assisted by anyone present today. Have you been given any indication of how long is sought? 38. MISS HOPE: I would imagine given the nature of the case that this could be done swiftly. 39. THE VICE-PRESIDENT: Yes. Mr Quaife, is there anything you would want to say either on that particular point or generally about any application for a retrial. 40. MR QUAIFE: Other than agreeing with my Lord's view that appropriate consideration should have been given and of course not leaving this appellant in a state of uncertainty for an unreasonable period of time. 41. THE VICE-PRESIDENT: Yes. The sentence was a non-custodial one but it did impose a punitive requirement of an electronically monitored curfew between 9.00 pm and 8.00 am for 90 days. Presumably that has all been served. 42. MR QUAIFE: It has. 43. THE VICE-PRESIDENT: We are beyond that date, are we not? 44. MR QUAIFE: We are. 45. THE VICE-PRESIDENT: Do you happen to know, Mr Quaife whether the further requirement which was added to the condition of an existing suspended sentence has taken any effect? 46. MR QUAIFE: I do not. I attempted to find that out the day before yesterday from probation but I was unable to get an answer so far as the additional RAR days were concerned. 47. THE VICE-PRESIDENT: Thank you. We will just retire to consider Miss Hope's request. (Short adjournment) 48. THE VICE-PRESIDENT: Miss Hope, thank you for your submission and we reiterate that we make absolutely no criticism whatsoever of you personally; but it must be clearly understood that when an appeal against conviction is before the court, the respondent should instruct counsel in advance of the hearing as to whether any retrial will be sought should the appeal succeed. Of course there will be complex cases, perhaps involving multiple defendants and/or multiple grounds of appeal, where time may be needed to assimilate the details of a judgment just given. But this case is very far removed from that category. The issue was clear cut. It was known in advance that the appeal would either succeed or would fail on clearly defined grounds. We can see no reason why, if an application was ever to be made for a retrial, it could not be made today. We would add that in any event any application would have faced a steeply uphill struggle in persuading the court that the interests of justice required a retrial in the circumstances of the case. 49. For those reasons, Miss Hope, we are not prepared to allow the respondent any more time and as I understand it you do not, in those circumstances, make any application? 50. MISS HOPE: Particularly not in light of what your Lordship has just said. 51. THE VICE-PRESIDENT: The judgment which we have given concludes the matter. The conviction is quashed and there is no order for retrial. 52. 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 1610' date: '2023-11-16' judges: - LORD JUSTICE HOLROYDE - MR JUSTICE LAVENDER - MR JUSTICE FREEDMAN ```

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. [2022] EWCA Crim 83 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202103962/A3 Royal Courts of Justice Strand London WC2A 2LL Friday 28 January 2022 Before: LADY JUSTICE CARR DBE MR JUSTICE WALL HER HONOUR JUDGE DHIR QC (Sitting as a Judge of the CACD) REGINA V RHYS MORAR __________ 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 LADY JUSTICE CARR: 1. Following his earlier guilty pleas, the applicant was sentenced on 16 January 2020 in the Crown Court at Chelmsford to a total sentence of 59 months' imprisonment, concurrent sentences of equal length being imposed on two counts of being concerned in the supply of class A drugs, contrary to section 4(3) (b) of the Misuse of Drugs Act 1971 . 2. This is his application for an extension of time of 670 days for leave to appeal sentence, that application having been referred directly to us by the Registrar. The only issue raised concerns the application of the credit period for the purposes of section 240A of the Criminal Justice Act 2003 in respect of 150 days spent on qualifying curfew. We grant the necessary extension of time and we grant leave. 3. As is agreed by the prosecution, 75 days should count towards the applicant's sentence under section 240A of the Criminal Justice Act 2003. To this extent the appeal will be allowed and the sentence amended accordingly. 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 83' date: '2022-01-28' judges: - LADY JUSTICE CARR DBE - MR JUSTICE WALL - HER HONOUR JUDGE DHIR 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} ======

Case No: 2006/2077/A3 Neutral Citation Number: [2006] EWCA Crim 2066 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 11 August 2006 B E F O R E: MR JUSTICE STANLEY BURNTON MRS JUSTICE DOBBS - - - - - - - R E G I N A -v- REYNOLDS TUNNEY - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR D BRADSHAW appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MR JUSTICE STANLEY BURNTON: On 9th January 2006 at York Crown Court before His Honour Judge Hoffman and a jury, the appellant pleaded guilty to doing acts intending to pervert the course of justice. On 4th April 2006 he was sentenced by His Honour Judge Hoffman to three years' imprisonment. He had originally been jointly charged with his son, Monty. On 4th April 2006 a count of making a false written statement had been added to the indictment in respect of Monty Tunney only. He pleaded guilty to that offence and received a two year conditional discharge. The Crown offered no evidence against him in respect of count 1 of which the appellant was convicted. The appellant now appeals against his sentence by leave of the single judge. 2. The facts of the case were that at approximately 11.20 am on 20th August 2005, a Mr Michael Boffey was knocked down and run over as he tried to prevent the theft of his Land Rover Defender vehicle from his farm in Warwickshire. The man responsible for the killing of Mr Boffey, one Ashley Squires, was later convicted of his manslaughter on 3rd January 2006 before Warwick Crown Court. He received a sentence of 12 years' imprisonment. 3. Mr Squires had been seen in a number of different parts of Warwickshire and Leicestershire both before and after the time of the killing of Mr Boffey. He was arrested on 7th September 2005 and in a written statement made through his solicitor he volunteered Monty Tunney, the son of the appellant, as an alibi witness. However, the telephone number given by Mr Squires for Monty Tunney was in fact that of the appellant. The appellant was informed of the murder investigation implicating Mr Squires and that Monty Tunney's details had been provided by Mr Squires. The appellant agreed to speak to the police and informed them that he was in York. He attended the police station on 9th September 2005 and provided a witness statement indicating that he remembered the events of 20th August 2005. He stated that on that day, Mr Squires had been working with him and his son Monty in the York area. In addition he said that Mr Squires had spent the previous night with them at a caravan site in James Street in York. He also stated that Mr Squires was working with them for the whole of Saturday morning from 8.30am onwards. 4. On 12th September 2005, Monty Tunney attended the police station and provided a similar written statement. Later the same day both Monty Tunney and the appellant were arrested and interviewed by the police. Both maintained that the evidence given in their statements was accurate to the best of their knowledge and belief, despite the police informing them that they had evidence from the Warwickshire inquiry which suggested strongly that Mr Squires had been present in Warwickshire until at least 11.20 am on the Saturday morning. 5. On 20th October 2005 both the Tunneys were interviewed again. In the course of these interviews they said that on reflection they were both of the view that it was nearer to midday to 1 pm on 20th August 2005 when they first met with Mr Squires, but they maintained that he had worked with them during the afternoon. 6. In the interim, the police had made enquiries at an address list supplied by the appellant and had confirmed that the appellant's company had been carrying out gardening work in the Acomb area of York at the relevant time. Customers of the firm failed to recognise pictures of Mr Squires having been one of the people carrying out the work and some stated that he had definitely not been present that afternoon. Despite this, the appellant persisted in asserting that Mr Squires had been present. 7. The judge in sentencing the appellant referred to the fact that he was previously lightly convicted and indeed his last conviction had been some eight years previously. He therefore did not take those previous convictions into account. Some credit was given for a late guilty plea. The offence was, however, very serious and therefore the sentence passed was appropriate. 8. The grounds of appeal are that the sentence as a whole is excessive having regard to the lack of criminal record of the appellant, his guilty plea, the fact that he was a hard-working family man with family responsibilities, that the false alibi had not resulted in the arrest or the charge of any innocent person, it had not been believed, ultimately the appellant did not persist in it and he had not served a prison sentence before. 9. In his admirably concise submissions, Mr Bradshaw has effectively repeated the case set out in his advice, namely that looking at the matter as a whole and looking at previous authorities this sentence was out of line and excessive. Reliance is placed on the case of Evans in which a sentence of two years' imprisonment was reduced to 12 months. 10. In our judgment the sentence which is appropriate for offences of this nature depends effectively on three matters. Two of those were referred to by the judgment of this court in Rayworth [2004] 1 Cr.App.R (S) 75 in which two-and-a-half years were upheld on a plea for perverting the course of justice. The particular factors which the court must have regard to are, first, the seriousness of the substantive offence to which the perverting of the course of justice relates. Here the offence in question, murder/manslaughter, was at the most serious end of the spectrum. The second matter which the court must have regard to is the degree of persistence in the conduct in question by the offender. Here there was a degree of persistence, although ultimately the appellant ceased to persist in his lies. Thirdly, one must consider the effect of the attempt to pervert the course of justice on the course of justice itself. Here it was unsuccessful. Nonetheless, the substantive offence of murder or manslaughter could scarcely have been more serious. 11. In our judgment this sentence was excessive but it does not fall to be reduced to the extent for which Mr Bradshaw submits. In our judgment the appropriate sentence in this case, having regard to the substantive offence and the fact that the false alibi was repeated and persisted in over a period by the appellant, is one of two-and-a-half years' imprisonment. Accordingly, the sentence passed will be quashed and replaced by a sentence of two-and-a-half years' imprisonment. To that extent this appeal succeeds.

```yaml citation: '[2006] EWCA Crim 2066' date: '2006-08-11' judges: - MR JUSTICE STANLEY BURNTON - 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: [2009] EWCA Crim 77 Case No: 200804513/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 23rd January 2009 B e f o r e : LORD JUSTICE MOSES MRS JUSTICE DOBBS DBE MR JUSTICE GRIFFITH WILLIAMS - - - - - - - - - - - - - - - - - - - - R E G I N A v KENNETH GEORGE STURT - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - Mrs P May appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GRIFFITH WILLIAMS: The appellant appeals by leave of the single judge. 2. He is 64 years old and of previous good character. He was a golf professional who owned and ran a business called The Golf Factory. R, who was 12 years old, attended there for golf lessons. 3. In the Crown Court at Snaresbrook the appellant pleaded guilty to two offences of sexual assault on a male child under 13 (counts 3 and 4) and on 1st August 2008 he was sentenced by His Honour Judge King to concurrent sentences of 3 years' imprisonment. He had pleaded not guilty to two other counts of sexual assault (counts 1 and 2) and they were left on the file on the usual terms. The judge also made a sexual offences prevention order which we will consider later in this judgment. 4. The grounds of appeal advanced on his behalf by Mrs May are that the sentence does not reflect sufficient credit for the appellant's admissions and early pleas of guilty, his previous good character and the basis of plea that there were just the two incidents. It is submitted that the sentence equating to a sentence of four-and-a-half years' imprisonment following conviction was manifestly excessive. The issue can be briefly stated; it is whether the starting point of four-and-a-half years' imprisonment was manifestly excessive. 5. The facts demonstrate an element of grooming. At the beginning the appellant, whilst sitting on a chair at his desk, would get R to stand beside him and then hold him around his lower back, hips and waist. This conduct graduated to him pulling R's trousers down and holding him around his stomach and lower back and moving his hands over his genital area and over the buttocks. Then on 11th March the appellant pulled down R's trousers and pants and masturbated him. He then said: "I'm sorry, I shouldn't have done that, I am sorry. It is not right." He attempted to do the same thing and tried to put his mouth towards the boy's genitals but the boy moved away and so he desisted. The appellant then said that he was sorry and asked the boy not to tell anybody because he would lose his wife and children. The boy said that he could not do that because it was a criminal offence and the appellant then handed him his own phone so that the boy could contact his parents. When the boy was picked up by his father, he told him what had happened and as a result the police were contacted. 6. Police officers went to the appellant's home. His response was to apologise and to admit what he had done. When he was asked later why he had done it, he said that he did not know, it had just happened. 7. The Definitive Guideline issued by the Sentencing Guidelines Council provides that for these offences the starting point should be 3 years, with a sentencing range of 1 to 4 years. We have concluded that notwithstanding the aggravating feature of the abuse of trust and an element of grooming, that the starting point adopted by the learned sentencing judge was too high because it failed to reflect the very important mitigation that the appellant used no force, did not press his attention upon R when he offended against him on 11th March and immediately apologised. It also an important consideration that the appellant appreciated R's upset and assisted him in making contact with his parents so that he could be picked up and taken away. 8. In all the circumstances the decision that we have reached is that the appropriate sentence in this case was one of 18 months' imprisonment. There is no appeal against the terms of the sexual offences prevention order but the sentencing judge ordered that it should be in force indefinitely. Section 107(1) (b) of the Sexual Offences Act 2003 provides that an order should be for a fixed period not less than 5 years or until further order. We are satisfied that the appropriate order in this case is that that order should be until further order. It will then be for the appellant, if he chooses, to apply to the Crown Court for any variation of the terms of the order and after 5 years for its discharge in accordance with the provisions of section 108 of the Act . 9. For the reasons that we have given the appeal is accordingly allowed to this extent. We quash the sentences of 3 years' imprisonment and substitute for them concurrent sentences of 18 months' imprisonment and we amend the operative period of the sexual offences prevention order as we have indicated.

```yaml citation: '[2009] EWCA Crim 77' date: '2009-01-23' judges: - LORD JUSTICE MOSES - MRS JUSTICE DOBBS DBE - MR JUSTICE GRIFFITH WILLIAMS ```